HL Paper 184 HC 1074

House of Lords House of Commons Joint Committee on the Draft Civil Contingencies Bill

Draft Civil Contingencies Bill Session 2002–03

Report and evidence

HL Paper 184 HC 1074

Published on 28 November 2003 by authority of the House of Lords and the House of Commons

London: The Stationery Office Limited £0.00

House of Lords House of Commons Joint Committee on the Draft Civil Contingencies Bill

Draft Civil Contingencies Bill Session 2002–03

Report, together with formal minutes, oral and written evidence

Ordered by the House of Commons to be printed 11 November 2003 Ordered by the House of Lords to be printed 11 November 2003

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The Joint Committee on the draft Civil Contingencies Bill

The Joint Committee on the draft Civil Contingencies Bill was appointed on 11 July “to consider and report on any draft civil contingencies Bill presented to both Houses by a Minister of the Crown” by the end of November 2003.

Membership

Dr Lewis Moonie MP (Labour, Kirkcaldy) (Chairman) Mr Richard Allan MP (Liberal Democrat, Sheffield Hallam) Mr Adrian Bailey MP (Labour, West Bromwich West) David Cairns MP (Labour, Greenock and Inverclyde) Mr James Clappison MP (Conservative, Hertsmere) Mr Kevan Jones MP (Labour, North Durham) Mr Elfyn Llwyd MP (Plaid Cymru, Meirionnydd Nant Conwy) Patrick Mercer MP (Conservative, Newark) Chris Mole MP (Labour, Ipswich) Kali Mountford MP (Labour, Colne Valley) David Wright MP (Labour, Telford) Rt Hon the Lord Archer of Sandwell, QC (Labour) Professor the Lord Bradshaw (Liberal Democrat) The Lord Brooke of Alverthorpe (Labour) The Lord Condon QPM DL (Cross-Bencher) The Lord Jordan, CBE (Labour) Rt Hon the Lord King of Bridgwater CH (Conservative) The Lord Lucas of Crudwell and Dingwall (Conservative) The Lord Maginnis of Drumglass (Cross-Bencher) The Baroness Ramsay of Cartvale (Labour) The Lord Roper (Liberal Democrat) The Earl of Shrewsbury (Conservative)

Publication

The Reports and evidence of the Committee are published by The Stationery Office by Order of the House of Lords and House of Commons. All publications of the Committee (including press notices) are on the Internet at http://www.parliament.uk/parliamentary_committees/jcdccb.cfm.

Committee staff

The staff of the Committee was Ian Mackley (Lords Clerk), Andrew Kennon (Commons Clerk), Jennifer Smookler (Committee Specialist), Glenn McKee (Estimates Specialist) and Claire Little (Secretary). The Joint Committee was assisted by staff from the Scrutiny Unit in the House of Commons.

Contacts

All correspondence should be addressed to the Clerk of the Committee, House of Lords, Millbank House, London SW1A 0PW. The telephone number for general enquiries is 020 7219 4911; the Joint Committee’s email address is civilcontingencies@parliament.uk

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Contents Report Page

1 Introduction and Summary 5 The Purpose of the Bill 5 Definitions of Emergency 7 Category 1 and 2 Responders 7 Human Rights 8 Constitutional Issues 8 Funding 8 Audit and Management 9 The Regional Tier 9

2 Definitions of Emergency 11 Background 11 Use of same definition in both Parts 12 Breadth of definition 12 “Triple lock” 13 Emergency as the ‘threat to human welfare’ 15 Political, administrative or economic stability 16 Educational Services 17 Issues of ambiguity 17

Seriousness of “a threat” 17 Meaning of “serious” 18 Meaning of “stability” 19 Open-ended definition 19

Overlapping Responsibilities 20 Public functions 21 Threat to environment 22

3 Category 1 and 2 Responders 23 Background 23 Local flexibility 23 Central and regional tiers 24 Local government arrangements 27 Fire and Civil Defence Authorities (FCDAs) 28 NHS 28 Utilities 30 Voluntary sector 32 Nuclear and chemical sites 34 Private sector industries 34

4 Human Rights Issues 36 Background constitutional principles 36 Relevant provisions of the Bill to be examined 36 Treating secondary legislation as an Act of Parliament 38

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Protections for human rights currently mentioned within the Bill 41 Protections for non-derogable human rights not currently mentioned in the Bill 43 Protections for other derogable human rights not currently mentioned in the Bill 44 Derogation and the Bill 45 Interference with property rights without compensation 45 Creation of criminal offences 46

5 Constitutional Matters 47 Possible constitutional issues 47 Power to amend all Acts of Parliament 48 Parliamentary approval of declaration of emergency 50 Regulations under Part 1 50 Publication of emergency regulations 51 Effects of making regulations which have the legal status of Acts of Parliament 52 Expiry and renewal 52 The exclusion of the Crown under clause 19 53

6 Resource Implications 55 Background 55 Local contingency planning: costs to business, voluntary organisations and charities 55 Local contingency planning: costs to local authorities 57 Local contingency planning: grant funding arrangements 59 Business continuity management 61 Emergency powers 61 Bellwin scheme 62

7 Audit and Management 63 Audit 63 Crisis Management 64 Lead Government Department 64 An Advisory Agency 65

8 The Regional Tier 67 Background 67 The Bill’s Provisions 67 Other Concerns 68

9 Summary of Recommendations 70 Definition of Emergency 70 Category 1 and 2 Responders 72 Human Rights Issues 73 Constitutional Matters 74 Resource Implications 75 Audit and Management 76 The Regional Tier 76

Appendix 1: Memorandum from the House of Lords Select Committee on the Constitution 77

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Appendix 2: Memorandum from the House of Commons Transport Committee 80

Appendix 3: Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform 81

Appendix 4: Note by Dr James Broderick, Specialist Adviser to the Committee 84

Appendix 5: Note by Professor Clive Walker, Specialist Adviser to the Committee 93

Appendix 6: Note by Professor Clive Walker, Specialist Adviser to the Committee – The Resilience of the Crown 104

Appendix 7: Note by Mr Garth Whitty, Specialist Adviser to the Committee 106

Appendix 8: Note by Mr Garth Whitty, Specialist Adviser to the Committee – Military Support 111

Appendix 9: Questions for the Bill Team 112

Appendix 10: Note by Jennifer Smookler, Committee Specialist - Summary of Responses from Category 1 and 2 Responders 153

Appendix 11: Summary of Amendments Suggested by Respondents to the Government’s Consultation Exercise 161

Appendix 12: Note by Christopher Barclay, House of Commons Library – Legal Challenges to Emergency Powers 192

Formal Minutes 194

Witnesses 202

List of written evidence 204

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1 Introduction and Summary 1. We were appointed on 11 July “to consider and report on any draft civil contingencies Bill presented to both Houses by a Minister of the Crown” and to do so by the end of November 2003. The nature of the Parliamentary calendar, however, is such that only 11 of those 21 weeks were available for deliberation and the taking of evidence. This report therefore only covers the main issues that appear to us to be of major concern, making generalised recommendations on the substance of the Bill and how it might be improved. It contains only a few detailed proposed drafting changes. We should also record that the draft of the regulations to be issued under Part 1 of the Bill, which will identify the nature and extent of the duties to be imposed, were not available to us. We were therefore unable to consider their potential consequences on those that they may affect.

2. The Government has been engaged in wide-ranging consultation, since before the events of 11 September 2001, on the desirability of improving the UK’s resilience to disruptive challenge and the need to update the Emergency Powers Act 1920 and Civil Defence Act 1948. Those recent events however, led to a reappraisal of the range of concerns to be considered, and it was not until June 2003 that the draft Bill was published1 with explanatory notes, regulatory impact assessments, and a consultation document.

3. Given the limited time available to us, we decided not to issue a call for evidence but to rely instead on the responses to the Government’s own Consultation Document, which went to a wide range of representative organisations. We did however seek written comments on some specific issues from academic lawyers and representative organisations that are closely involved in contingency planning, and took oral evidence from a limited number of witnesses. We appointed as specialist advisers Dr James Broderick, Professor Clive Walker and Mr Garth Whitty and are most grateful to them for their advice and expertise, which have greatly assisted this inquiry. We were also guided in our deliberations by some valuable comments from the House of Commons Defence Committee2, the Joint Committee on Human Rights3, the House of Lords Select Committee on the Constitution4, the House of Commons Transport Committee5 and the House of Lords Delegated Powers and Regulatory Reform Committee.6 We were not however, able to take account of the House of Commons Science and Technology Committee’s Report on “The Scientific Response to Terrorism”7, which was published on 6 November, after we had completed our deliberations.

The Purpose of the Bill

4. The draft Bill is “enabling” legislation, seeking (a) to create a statutory duty on the part of local bodies to develop contingency plans for dealing with a range of emergencies, and

1 Cm 5843. 2 Seventh Report of Session 2002-03 HC 557. 3 Fifteenth Report 2002-03 HC 1005 HL Paper 149 14 July 2003. 4 Memorandum from the House of Lords Select Committee on the Constitution, Appendix 1. 5 Memorandum from the House of Commons Transport Committee, Appendix 2. 6 Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform, Appendix 3. 7 HC 415-I.

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(b) to provide powers for the Government to make regulations to deal with proclaimed emergencies. It is in three parts and contains two schedules:

• Part 1 (clauses 1 to 16) would apply only in England and Wales and sets out local arrangements for civil protection. It imposes on certain local bodies, described as Category 1 Responders, a statutory obligation to prepare plans for dealing with the wide range of civil emergencies defined in clause 1. Their duties will be outlined in more detail by regulations still to be published. Organisations listed as Category 2 Responders would be statutorily obliged to cooperate with the emergency planning and response processes and to share information with Category 1 Responders.

• Part 2 (clauses 17 to 30) would apply to the whole of the United Kingdom and replace the Emergency Powers Act 1920 and the Emergency Powers Act (Northern Ireland) 1926. Under the draft Bill, a declaration of emergency can be made either by proclamation by Her Majesty or by a Secretary of State if he or she believes that a proclamation may occasion “serious delay”.8 Clause 20 confers the power on Her Majesty or the Secretary of State to make regulations to control, prevent or mitigate the effects of an emergency, while clause 21 outlines their scope. A declaration of emergency can be made at a regional rather than national level.

• Part 3 deals with repeals, commencement and the short title.

• Schedule 1 lists what are described in Part 1 as Category 1 and 2 Responders.

• Schedule 2 is a comprehensive list of repeals, including the Emergency Powers Act 1920 and the Civil Defence Act 1948.

5. We agree with the large majority of stakeholders who have shown general acceptance of the principle set out in Part 1, namely that local bodies should have a statutory duty to make contingency plans for dealing with a wide range of emergencies and Government should have a role in ensuring national consistency. We have concerns, however, that the draft Bill lacks sufficient detail or provides adequate safeguards against potential misuse. In the absence of publication of the regulations and guidance, we agree that the draft Bill is something of “a ‘leap of faith’ … because we cannot judge the legislation until we see the content of the regulations and also the funding”.9

6. Our consideration of the draft Bill has been undertaken in the knowledge that it is an enabling measure which may not be invoked for a generation or more. Our concern, particularly in respect of Part 2, is to ensure that the Bill does not provide any exploitable opportunity to misuse emergency powers and potentially, in a worst case scenario, allow for the dismantling of democracy. In the course of his evidence, the Minister in charge of the draft Bill referred several times to the need to achieve “balance” in the provisions. In our view, given the nature of the legislation, the emphasis should be on precision and clarity, to ensure that the principles of democracy cannot easily be undermined.

8 Draft Civil Contingencies Bill, Part 2, clause 19(1)(c). 9 Q 128, Mr Richard Davies (Leeds City Council).

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Definitions of Emergency

7. Both Parts 1 and 2 of the draft Bill provide very similar definitions of an emergency, the main difference being that Part 2 refers to a threat to “welfare”, rather than “human welfare” as in Part 1, and a threat to human welfare under Part 2 is not inclusively defined, as it is under Part 1. The draft Bill defines an emergency as an event which presents a “serious” threat to: human welfare; the environment; political, administrative, or economic stability; and the security of the UK or part of it. These are then defined in further generalised terms.

8. An exceptionally wide range of events or situations may give rise to a threat within the meaning of the draft Bill, including political protests, computer hacking, a campaign against banking practices, interference with the statutory functions of any person or body, an outbreak of communicable disease, or protests against genetically modified crops, among many others.10 We believe that the definition is drawn too widely in both Parts, especially in Part 2, where it could trigger substantial emergency powers. We suggest that key terms, such as “serious”, “essential” and “stability” must be defined within the Bill and that there needs to be a clear and objective trigger for action under Part 1 and 2. (Chapter 2)

Category 1 and 2 Responders

9. The Bill’s Schedule 1 lists the organisations to be included as Category 1 and 2 Responders. Category 1 Responders will have a statutory duty to assess and plan for an emergency, with further details to be laid out in regulations made under the Bill. At present, they include local authorities, emergency services, ambulance trusts, the Environment Agency and the Secretary of State in relation to maritime and coastal matters. Category 2 Responders include utility companies, railways, airports and harbour authorities and the Health and Safety Executive. They will be required, through regulations to be published under the Bill, to join with Category 1 Responders to establish arrangements for better communication, cooperation and information sharing.

10. The Government’s Consultation Document asked stakeholders whether they thought the list was appropriate and we sent a separate letter to key NHS bodies and organisations in the energy, food and media sectors, asking whether they believed they should be included as a Category 1 or 2 Responder. We agree with a significant number of consultation responses, who questioned the role and statutory responsibilities of central, regional and devolved government. We believe that their status should be clarified and be subject to the same statutory duty as that imposed on Category 1 Responders. We recommend that key bodies within the NHS should be included in Category 1 and 2 and that Category 1 Responders should be given a statutory power to include voluntary sector organisations in planning for an emergency. We also suggest that Category 1 Responders should have the flexibility to select the most appropriate local voluntary organisations in planning and training exercises. (Chapter 3)

10 As identified by the Joint Committee on Human Rights, Fifteenth Report 2002-03 HC 1005 HL Paper 149 14 July 2003,

3.11.

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Human Rights

11. The draft Bill itself does not appear to contain any specific encroachment on human rights, but it is an enabling Bill under which regulations could be made which do breach such rights. Clause 25 for instance, would allow for regulations to “be treated as if it were an Act of Parliament” for the purposes of the Human Rights Act. We do not believe that the Government has demonstrated a clear and compelling need for clause 25 and agree with the Joint Committee on Human Rights that it “would, if enacted, give rise to a significant risk that regulations could be made which would violate, or authorise a violation of, Convention rights, without any judicial remedy being available for a victim of the violation”. 11

12. We are concerned that regulations should not be able to contravene any of the inalienable rights protected under the European Convention on Human Rights. We recommend that the Bill prohibit regulations which would breach any of the Convention rights from which it is not possible to derogate or any provision in the Geneva Conventions. (Chapter 4)

Constitutional Issues

13. The list of possible constitutional issues raised by the draft Bill is extensive. Clause 21(3)(j) allows regulations to disapply or modify any Act of Parliament. In the wrong hands, this could be used to remove all past legislation which makes up the statutory patchwork of the British constitution. We believe that the Bill should list a number of fundamental parts of constitutional law that should be exempt from modification or disapplication. We suggest that regulations under Part 2 should be published from time to time and be subject to the same safeguards as primary legislation. One feature of some past emergency legislation is that it lapses after a set time unless renewed. We recommend that the powers in Part 2 should expire every five years from Royal Assent unless renewed beforehand by an order subject to the affirmative procedure. (Chapter 5)

Funding

14. At present, the top tier local authorities (Counties, Unitaries, Metropolitan Boroughs and London Boroughs) receive annual ring-fenced funding for emergency planning of just over £19 million through the Civil Defence Grant. It has been estimated that this is only 50 percent in real terms of 10 years ago and that local authorities currently contribute an additional £17 million from their own local resources over and above the £19 million they receive from Government.

15. The Government claims that the new statutory duties will impose negligible additional costs (after allowing for the “voluntary” expenditure local authorities already make),12 but we have heard from many local authorities that the new statutory duties cannot be undertaken without further drains on their budgets. Without knowing the detail of the regulations governing those duties, we are not in a position to develop an informed view,

11 Fifteenth Report 2002-03 HC 1005 HL Paper 149 14 July 2003, para 3.35. 12 In the Regulatory Impact Assessment (para 76) and the Consultation Document (chapter 3, para 35, p 20).

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but the balance of probabilities is that there will indeed be a requirement for new money. We have heard unanimity that Government should meet the costs of emergency planning.

16. While we believe that there is a good case for central government to meet all emergency planning costs, the debate and the final decision need to be informed by facts, not assumptions. We believe that the Government should initiate, as a matter of urgency, a comprehensive review of the funding provision once the detail of the regulations is known. (Chapter 6)

Audit and Management

17. The Government considers that existing mechanisms are sufficient to ensure robust performance management, and has concluded that there is no need to establish an inspectorate to ensure operational effectiveness and financial efficiency. We share the view of the Association of Chief Police Officers (ACPO)13 that a dedicated civil contingencies inspectorate would better manage an inter-disciplinary environment, and enhance the profile of the process as a whole.

18. There is also some concern about crisis management in general. We recognise the merits of the “lead department” concept in terms of providing advice, but believe that the critical role of the Regional Nominated Coordinator in England (Emergency Coordinator in Scotland, Wales and Northern Ireland) should be allocated to an individual with proven management skills, preferably in crisis management. We also believe that the planning process would be enhanced through the creation of a Civil Contingencies Agency, which would incorporate the dedicated inspectorate. This would act as a source of advice on a range of contingency planning issues and should report annually to Parliament through the Home Secretary. (Chapter 7)

The Regional Tier

19. The proposed regional tier will be based, in England, on the Government Offices of the Regions, but at national level in Scotland, Wales and Northern Ireland. The Government suggests that the regional tier will have a coordinating role between central government and the region, and between regions and their local Responders.14

20. There is no mention of the regional tier on the face of the draft Bill, apart from clauses outlining the appointment and duties of Regional Nominated Coordinators. We are concerned by the absence, in England, of a statutory basis for regional governance by appointees. We believe that the role of the regional tier should be detailed in statute on the face of the Bill; that it should be subject to the same range of performance criteria as local Responders; and that the role of democratically elected members on the regional bodies should be consistent across all regions.

21. The Bill allows for proclamation of an emergency to be made at a regional level. We question the wisdom of the intention, in England, to use the Government Office regions as its basis. These regions have been created for administrative convenience, are often very

13 Memorandum from the Association of Chief Police Officers, Ev 21, Q9. 14 Consultation Document, chapter 4.

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large and do not have a separate legal personality.15 We suggest that Part 2 should include the flexibility to proclaim emergencies in geographical rather than administrative areas in circumstances which so dictate. (Chapter 8)

15 Q 283, Mr Alexander (Minister of State, Cabinet Office).

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2 Definitions of Emergency Background

22. The term emergency is defined twice in the Bill, in clause 1 at the beginning of Part 1 (which applies only to England and Wales) and in clause 17 at the beginning of Part 2 (which applies to the whole of the UK).

23. In the Bill, an emergency is defined as a “serious threat” to:

• human welfare

• the environment

• political, administrative or economic stability

• the security of the UK or a part in it.

24. Each of these “threats” is then defined in further detail:

• A threat to human welfare (“welfare” under Part 2) includes a loss of human life, human illness or injury, homelessness, damage to property, disruption of the supply of food, water, energy, fuel or another essential commodity, disruption of communications, facilities for transport, medical, education or other essential services. This list is inclusive under Part 1 but not under Part 2.

• A threat to the environment encompasses contamination with biological, chemical or radioactive matter or fuel oils, flooding, or disruption or destruction of plant or animal life.

• A threat to political, administrative or economic stability includes disruption to the activities of the Government, the banks or other financial institutions, or to the performance of public functions.

• A threat to security includes war, armed conflict or terrorism.

25. The major difference between the definitions is that Part 2 refers to a serious threat to “welfare” rather than “human welfare” as in Part 1, and that a threat to human welfare under Part 2 is not inclusively defined, as it is under Part 1. As the draft Bill uses basically the same definition in Parts 1 and 2, we have considered them as a single definition, except where we consider the points that distinguish them. We also consider, in paragraphs 27-28, the case for creating separate thresholds in each Part.

26. We have identified several issues of potential concern:

• Use of same definition in both Parts

• The breadth of the definition

• The “triple lock” safeguards

• Emergency as “threat to human welfare”

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• Issues of ambiguity.

Use of same definition in both Parts

27. As already noted, the definition of emergency is virtually identical in both Part 1 and 2, even though each Part serves entirely different purposes. Part 1 is concerned with the preparation of contingency plans, while Part 2 is concerned with events which could justify the invocation of emergency powers. However, the kind of major incident for which civil contingency plans should be prepared, under Part 1, will only rarely call for the use of emergency powers under Part 2. It is our view that the use of extensive emergency powers under Part 2 requires a higher threshold for action than that required under Part 1. We would therefore question the merit of using virtually identical definitions of emergency in both Parts.

28. The two Parts of the draft Bill serve different purposes and provide for qualitatively different action. We recommend that the Government include, in a sufficiently robust and objective clause, an additional set of criteria which must be satisfied before a declaration of emergency under Part 2 can be made. This would be in addition to the ‘triple lock’ test (see paragraphs 33-42 below).

Breadth of definition

29. The Government states that the definition is “designed to be highly inclusive, encompassing circumstances as diverse as severe flooding, a major chemical attack, disruption of fuel supplies and epidemics”.16 This approach would seek to enable flexibility and adaptability to be built into the legislative framework, which could then be used as authority to act decisively should novel or unforeseen events occur.

30. In our view, however, this “highly inclusive” approach has led to ambiguous terminology and unclear thresholds and triggers, raising concerns about the Bill’s potential for misuse. In Part 1, which only enables government to issue regulations for the preparation of contingency plans, a lack of clarity about what constitutes an emergency may raise issues about resources and respective responsibilities of local Responders but is otherwise the less serious of the two outcomes. It does not separately prescribe action to be taken in crisis situations. Under Part 2, however, which would allow Ministers to declare a state of emergency and assume extensive and potentially draconian powers, the possible consequences of an insufficiently clear definition are of far greater concern.

31. As currently drafted, the definition of an emergency could include a wide range of events or situations. The Joint Committee on Human Rights’ report has already identified a number of situations where emergency powers under this Bill could be deployed, including strikes, political protests, computer hacking, a campaign against banking practices or protests against genetically modified crops.17 Witnesses and responses to the Cabinet Office consultation have commented that the definition is so wide as to encompass events which are already routinely dealt with by emergency services.

16 The Draft Civil Contingencies Bill Explanatory Notes, para 41, p27. 17 Fifteenth Report 2002-03 HC 1005 HL Paper 149 14 July 2003, 3.11.

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“The definition as given in the Bill would include a number of events to which the emergency services respond every day”.18

“The definition as it stands does not include an element of scale and could therefore apply to a relatively minor road traffic accident or small fire”.19

“Under the current definition an emergency could be declared following the destruction of one property”.20

32. We concur with the conclusion of the House of Lords Select Committee on the Constitution that the current definition is unduly broad.21

“Triple lock”

33. The Government has sought to outline certain conditions that must be met before a state of regional or national emergency can be declared. These are described as the “triple lock” of seriousness, necessity, and geographical proportionality.22 We believe that in order for this to be an effective safeguard against potential misuse, the triple lock must be significantly strengthened.

34. A number of consultation responses and the Defence Committee’s report23 echo our own concern that the triple lock is not readily identifiable within the draft Bill and that Ministers are not statutorily obliged to assess a situation against the triple lock criteria before declaring an emergency.24

35. The Government has told us that the triple lock is reflected in various clauses in Part 2, including clauses 17, 18, 19 and 21.25 Given the confused and hurried circumstances in which an emergency is likely to be declared, when the only guidance to the Government of the day may be the legislation itself, it is vital that safeguards against misuse are made as clear on the face of the Bill as possible. We do not believe that scattering the three issues across the Bill gives it the clarity, visibility or importance necessary for a major safeguard against misuse.

36. In the light of the above, we welcome the Minister’s statement when he gave evidence on 16 October. Although he declared himself satisfied that the triple lock was as robust in its present form as it would be in a single clause, he nevertheless agreed:

“there is no reason why the triple lock cannot be gathered together from the various clauses of the draft Bill and presented in a single clause and if the Committee were so minded to recommend it, that would be something that would weigh heavily in

18 Q 36 Mr Goldsmith (ACPO). 19 Memorandum from the Royal Borough of Kensington & Chelsea, Ev 264, question 1. 20 Memorandum from the East Riding of Yorkshire Council, Ev 209, question 1. 21 Memorandum from the House of Lords Select Committee on the Constitution, Appendix 1, para 6. 22 Consultation Document, chapter 5, para 19, p28. 23 Seventh Report 2002-03 HC 557 2 July 2003, para 64, p23. 24 Memorandum from Torbay Council, Ev 275, question 16; Memorandum from Dudley Metropolitan Council, Ev 205,

question 16. 25 Clauses 17 and 21 refer to the seriousness of a threat or effect, clauses 18 and 19 require that a proclamation be

necessary, and clause 21 (4)(f) contains the principle of proportionality in geographic terms. See Questions for the Bill Team, Appendix 9, question 8.

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the Government’s deliberations about translating this from a draft Bill into a Bill that would be introduced in due course”.26

37. We recommend that the triple lock should be explicitly stated in a single or adjoining clauses on the face of the Bill, rather than mentioned in discrete sections. It should be a statutory condition that the triple lock test is applied before a declaration of emergency can be made.

38. We believe that the triple lock tests, as drafted, are insufficiently objective or clear to create a robust safeguard. Clauses 17 and 21 refer to the seriousness of a threat or effect, clauses 18 and 19 require that a proclamation/declaration is necessary, and clause 21(4)(f) contains the principle of proportionality in geographic terms. We consider these tests to be defective in the following respects:

• There is no express requirement of objectivity in any of the tests. The absence of the word “reasonableness” does not rule out review, for example, by the courts. However, it would signal a more rigorous standard of the exercise of powers and ex post facto review if it were to be included. We do not consider it to be acceptable that the existence of these conditions is exclusively for the Government to discern at will.27

• The term “necessity” is left unexplained, except in clause 21(4)(e) where it is specified that the use of legal powers and resources normally available without the invocation of the Civil Contingencies Bill will not be sufficient to deal effectively with the emergency. These notions should apply to other appropriate clauses in the Bill.

• Proportionality is explained in purely geographical terms. However, we consider that proportionality should also apply to the exercise of powers at three key points: when an emergency is declared, when the regulations are issued and when the regulations are applied. We are concerned about a ‘one size fits all’ approach, which might see powers triggered that are not proportionate to the emergency occurring. The notion of proportionality has been inserted into other recent legislation dealing with the rights of the individual, including the Anti-terrorism, Crime and Security Act 200128 and the Regulation of Investigatory Powers Act 2000.29

39. We recommend that the triple lock include a test which measures whether the use of powers is proportionate to the nature of the emergency, as well as providing for geographical proportionality. The test of “reasonableness” should be inserted into the triple lock. The “seriousness” test (see paragraph 58) should be made more robust, given that “serious” is not defined anywhere in the Bill. The opening phrase in clause 21(4), “without prejudice to the generality of subsection (1)(a)” should be removed.30 It is confusing and can only undermine what is otherwise the clear intent of clause 21(4). Unless these recommendations are followed, there is a substantial risk that the

26 Q 250, Mr Alexander (Minister of State, Cabinet Office). 27 This seems to be suggested in the Consultation Document, chapter 5, para 20, p 28. 28 See the Anti-terrorism, Crime and Security Act 2001, sections 17 and 19. 29 The use of powers under the Regulation of Investigatory Powers Act 2000 is qualified by the inclusion of the sub clause

“that the taking of the action is proportionate to what the action seeks to achieve”, see sections 5,22,23,28,29,32,49, 51,55 and 73-5.

30 Memorandum from David Bonner, Ev 178, para 15.

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idea of the triple lock in the Consultation Document31 will remain little more than rhetoric.32

40. Additionally, as drafted, the triple lock seems to act as a mechanism to ‘weed out’ non-emergency situations which the overly broad definition of an emergency has inadvertently caught. We recognise its potential value as an additional threshold that must be surmounted before a declaration of emergency can be made, but the triple lock is not a substitute for an undesirably loose definition of emergency.

41. The Minister in charge of the Bill told us that the Government was considering putting a more explicit trigger on the face of the Bill. He suggested three possibilities: including a proportionate scale of emergency, “where a threat to a portion of the community or the community itself is deemed to be one of the criteria having to be met”; better defining the notion of serious; or an additional test that could be added to the Bill, perhaps “linked to the exercise of Responders in circumstances of emergency”. 33

42. We welcome this response. While we acknowledge the concept of a triple lock as an additional threshold, it cannot replace the need for a clear, objective and proportionate definition of an emergency.

Emergency as the ‘threat to human welfare’

43. In Part 2, the definition of emergency refers to a serious threat to “welfare”, rather than “human welfare”. The Government has told us that there is no qualitative difference between the two definitions, but that “parliamentary counsel said that he would have used the same terminology if he could but he felt the difference in structure meant a different wording was needed”.34 While there may be different structures between the two Parts of the Bill, we are not convinced that the search for drafting elegance is sufficient reason for minimising the importance of the threat to human welfare.

44. We therefore recommend that the term “human welfare” be explicitly incorporated into the definition of emergency in both Parts of the Bill.

45. Under the Emergency Powers Act 1920, an emergency is defined as an event which has or may interfere with the supply and distribution of food, water, fuel, light or transportation, thereby depriving all or part of the community of the essentials of life.35 The Bill significantly widens this definition; a threat to human welfare constitutes but one of many components, and is not a prerequisite for all eventualities. Threats to the environment, to political, administrative or economic stability, or to the security of the UK can be regarded as an event justifying the deployment of emergency powers, whether or not they represent a threat to the people.

31 Chapter 5, para 19, p 28. 32 See also Defence Committee, Seventh Report of Session 2002-03 (HC 557), para 64. 33 Q 243, Mr Alexander (Minister of State, Cabinet Office). 34 Q 241, Ms Lane (Legal Advisor, Cabinet Office). 35 The Emergency Powers Act 1920 defines an emergency as “[an event] of such a nature as to be calculated, by interfering

with the supply and distribution of food, water, fuel, or light, with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life”.

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46. Civil rights experts have told us that this definition strays too far from the core basis of what an emergency is:

“There may be room for slight improvement on the 1920 definition, but not the extended broad definition of public emergency that is offered in this Bill, which does not cut to the heart of the kind of emergency, the basic threat to existence for significant numbers of people should be the only scenario that is sufficient for ousting parliamentary jurisdiction”.36

“We are not defending the language of the 1920 Act as perfect, but the core concept is one of ensuring public safety and physical well being”.37

47. We consider that the core of an emergency, particularly one meriting substantial emergency powers, is the threat to human welfare. We cannot envisage justifying the use of potentially draconian emergency powers if there was no demonstrable threat to human welfare. Including this as a key component of the definition of emergency would further ensure that the use of emergency powers would be limited to protecting the welfare of the population, rather than the welfare of the state. This issue is explored further in paragraph 49.

48. We recommend that the definition of an emergency is re-drafted to reflect that an emergency is a situation which presents a threat to human welfare.

Political, administrative or economic stability

49. Clauses 1(1)(c) and 17(1)(c) extend the definition of an emergency to include an event or situation which presents a threat to political, administrative or economic stability. This could include disruption to the activities of the Government, banks or other financial institutions, or to the performance of public functions. Emergency powers could therefore be triggered by events which threaten the essentials of life for the government, as well as events which threaten the essentials of life for the community. These two points of focus are not necessarily compatible. In protecting the government, emergency powers could potentially be used against the civil population.

50. No distinction is drawn in this clause between essential and non-essential functions. As drafted, a serious threat of disruption to a non-essential government activity or public function could activate the use of emergency powers. In a worst-case scenario, “the Government could, in principle, declare a state of emergency and suspend all primary legislation if faced with potential political instability”.38 It has also been pointed out that:

“political, economic or security issues…are an unnecessary duplication and are simply one of the many events or situations which would require an emergency to be declared under the first two criteria of the definition due to the disruption to human welfare or the environment”.39

36 Q 197, Ms Chakrabarti (Liberty). 37 Q 197, Dr Metcalfe (JUSTICE). 38 Memorandum from Liberty, Ev 87, para 20. 39 Memorandum from the East Riding of Yorkshire Council, Ev 209, question 1.

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51. While we do not envisage that the present Government, or any political party represented in Parliament, plans to trigger emergency powers in the event of a threat to its own existence, it is imperative in this Bill, as in other proposed enabling legislation, that such hostages to fortune should not be left available for deployment against future generations.

52. We have grave reservations about allowing enabling legislation to contain exploitable opportunities that could give the government of the day the power to protect its own existence when there may be no other threat to human welfare. We recommend that this clause should only remain in the Bill if it can be demonstrated that situations occurring under it will also present a threat to human welfare or safety. It should only cover those threats to human welfare caused by disruption to essential services.

Educational Services

53. One of the threats to human welfare is identified as one that causes or may cause disruption of educational services. While events that may cause disruption to educational services are serious matters, they do not necessarily constitute an automatic threat to human welfare. Education is not included as a basic essential of life in the European Convention on Human Rights, nor are educational services considered ‘essential’ in international labour law.40 In evidence, the Minister said that he could not think of an example where disruption of educational services would warrant the use of emergency powers and signalled his willingness to re-consider its inclusion.41

54. While education is an important service, we can see no reason why a threat to educational services should, of itself, warrant the use of extensive emergency powers. We therefore recommend that educational services should be removed from clauses 1(2)(h) and 17(2)(h).

Issues of ambiguity

Seriousness of “a threat”

55. As the Bill currently reads, the existence of an emergency is judged according to the seriousness of a “threat”, rather than the seriousness of a potential outcome: “it attempts to define the causes rather than the effects of the emergency”.42

56. This seems to be at odds with the approach in other legislation. The definition of ‘terrorism’ in the Terrorism Act 2000 requires a threat of action involving serious harm, rather than a serious threat of action involving harm.43 Slightly to our surprise, the Cabinet Office told us that parliamentary counsel has advised “quite clearly that the natural

40 Memorandum from David Bonner , Ev 178, para I. 41 Q 294, Mr Alexander (Minister of State, Cabinet Office). 42 Memorandum from the East Riding of Yorkshire Council, Ev 209, question 1. 43 Terrorism Act 2000, Part 1.

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meaning of the term serious threat to human welfare is a credible threat with serious consequences”.44

57. In the interests of clarity, we recommend that the Bill makes explicit that the test of the existence of an emergency is judged according to the seriousness of its potential or actual consequences to human welfare.

Meaning of “serious”

58. An emergency is deemed to exist according to whether a threat is “serious”. Yet the Bill does not provide any explanation of what “serious” is held to mean. This term has been described as “open to differing interpretations and… difficult to quantify”.45

“I would definitely like to see some sort of elucidation of what is implied by “a serious threat”. That can mean many different things to different people”.46

“The term “serious threat” is woolly and therefore guidance is necessary to determine what would trigger an event that was considered to be a “serious threat”. Without guidance or a stronger definition within the Bill, there may be inconsistency of approach across the country”.47

59. Dealing with Disaster, the Cabinet Office’s guidance to emergency planners and local Responders, defines a major emergency as an event or circumstance “…on such a scale that effects cannot be dealt with by the emergency services, local authorities and other organisations as part of their normal day to day activities”.48 There has been wide support in consultation responses for including this definition in the Bill or using it, in Part 1, to replace the existing definition:

“The simple, single paragraph definition from Dealing with Disaster is perfectly adequate. We can think of no situation, listed in the bill’s definition, which it could not be deemed to cover”.49

“The definition contained in Dealing with Disaster gives a far clearer trigger for a major emergency”.50

60. The Minister told us that the drawback of this definition was that it was a “relative notion of disaster”, which could be deemed to be conditional, according to the capacity of the emergency services in the area. He did however, signal his willingness to consider defining the term “serious”.51

61. We would suggest that emergencies are, by their very nature, relative. One reason an incident may develop into a crisis is the inability of existing capabilities to contain it. We do not propose that the definition in Dealing with Disaster should form the sole basis of a

44 Q 240, Ms Lane (Legal Adviser, Cabinet Office). 45 Memorandum from CACFOA, Ev 32, question 1. 46 Q 83, Mr Davies (Leeds City Council). 47 Memorandum from Tees Valley Chief Executives Group, Ev 272, question 1. 48 Dealing with Disaster, Cabinet Office, revised 3rd edition, 2003, para 1.5, p1. 49 Memorandum from NCCP, Ev 243, question 1. 50 Memorandum from Kent and Medway Towns Fire Authority, Ev 227, question 1. 51 Q 243, Mr Alexander (Minister of State, Cabinet Office).

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definition of an emergency, but it is an example of the sort of threshold that should be crossed before the need for special legislation is considered.

62. We recommend that the Dealing with Disaster definition of a ‘major emergency’ be inserted into the Bill as one definition of the term ‘serious’.

Meaning of “stability”

63. Under the draft Bill, an emergency can be declared if there is a threat to political, administrative or economic stability. We have heard that the term ‘stability’ is inadequate for creating a clear and objective threshold:

“Stability is a very broad and unhelpfully vague term. A great deal of instability occurs in everyday life without causing an emergency of any particular kind”.52

“From an emergency planning perspective I would like to see [the issue of stability] more closely tied to issues of human welfare so that we do not get drawn too far into the political sphere”.53

64. In response to our request for a definition of “stability”, the Minister told us:

“The inclusion of Political, Economic and Administrative Stability is indicative of our desire to draw up a definition that reflects the full range of emergencies we might face in the future – an inherently unpredictable element. This comprehensive approach was endorsed by consultation.

This and other elements of the definition will be limited once we have a threshold in place”.54

65. We recommend that the term “stability” is explicitly defined within the Bill, with reference to our recommendation that the core of an emergency is the threat to human welfare.

Open-ended definition

66. An event or situation which presents a threat to the welfare of a population is defined in both Part 1 and Part 2 by a list of consequences, including loss of human life, homelessness and human injury. In Part 1, a threat to human welfare is restricted to the list outlined on the face of the Bill: “an event or situation presents a threat to human welfare only if it involves, causes or may cause…”.55 In Part 2 however, the list is a guide only: “an event or situation presents a threat to the welfare of a population if, in particular, it involves…” (emphasis added).56

67. It is our concern that the term “in particular” leaves the definition of emergency entirely open-ended, at the mercy of a range of interpretations, and therefore potentially

52 Q 197, Dr Metcalfe (JUSTICE). 53 Q 83, Mr Davies (Leeds City Council). 54 Further Letter from Douglas Alexander MP, Minister of State, Cabinet Office, Ev 124. 55 Clause 1(2). 56 Clause 17(2).

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open to abuse. According to this wording, a Minister can determine the criteria by which an emergency is judged to exist, and accrue significant emergency powers accordingly. Given that the definition of human welfare is limited in Part 1, it is surprising that it is left open-ended in Part 2, where the more serious powers can be triggered.

68. The Minister has told us that “this is not deemed to be an exhaustive list, but rather is an illustrative example of what we were endeavouring to do which was, where possible, to be explicit with people as to the range of possible reach of the legislation as drafted”.57 In reply to further questioning he said “a balance has to be struck … but there are very clear limits on the powers of the Secretary of State or government acting under the draft legislation as presently drafted, the foundation of that of course being the triple lock.”58

69. We are not convinced that the definition of emergency should incorporate such a degree of latitude, or that the safeguards are robust enough to protect against possible misuse. We therefore recommend that the words “in particular” be removed from clause 17(2).

70. Under the draft Bill, emergency powers can be triggered by a threat to “another essential commodity” and “other essential services”. These terms are not defined in the draft Bill and seem dependent on Ministerial interpretation, to be determined at an unspecified date, potentially far in the future.

71. In his written response, the Minister said:

“The use of ‘essential’ in the draft Bill should be taken to have its usual meaning – necessary.

It is difficult to predict what will be essential in the future, just as there are essential commodities today which would not have been judged to be so in the past. The 1920 Act was reflective of its time – for example there is no reference to computers or electronic communications. Ultimately, the inclusion of this language is intended to ‘future-proof’ the legislation.”59

72. While we recognise that the Government wishes to leave the definition wide enough to “cover the full spectrum of current and future events and situations”,60 we suggest that this degree of latitude leaves the Bill wide open to possible misuse. The phrases “another essential commodity” and “other essential services” should be removed from the Bill. Any amendments to the Bill which may become necessary in the event of future, unforeseen events, should be enacted through proper parliamentary procedure, not left to the discretion of the Government of the day.

Overlapping Responsibilities

73. The definition of a threat to human welfare includes a disruption to an electronic or other system of communication61 and disruption to the supply of water, energy or fuel.62

57 Q 248, Mr Alexander (Minister of State, Cabinet Office). 58 Q 249, Mr Alexander (Minister of State, Cabinet Office). 59 Further Letter from Douglas Alexander MP, Minister of State, Cabinet Office, Ev 124. 60 Consultation Document, chapter 2, para 7, p 13. 61 Clause 1(2)(f).

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Utility companies have raised concerns about the risk of overlap between Category 1 Responders’ duties and their own statutory responsibilities, outlined in other legislation.

“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… Government Responders are unlikely to have the required knowledge, skills or expertise to direct the details of a telecommunications recovery”.63

[The definition] “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”.64

74. We have heard that the utility companies have an existing statutory duty to undertake emergency planning for their areas:

“Electricity distribution network operators are already subject to extensive statutory and license requirements which deal with contingency planning, network resilience and response to failures of electricity supplies. These are common nationally set requirements, on which the DNOs65 are regulated, and are required to adhere to”.66

“United Utilities sees little advantage in being a Category 1 Responder. In both the water and 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”.67

“BT have got detailed continuity plans which go from sustaining its cashflow down to a major mobile exchange capability to restore a smoking hole scenario”.68

75. We recommend that the existing statutory responsibilities of the utility organisations are cross-referenced in accompanying regulations, to ensure that there is no ambiguity or overlap in emergency responses.

Public functions

76. As the Defence Committee’s report has already stated, the definition of public functions in Part 2 does not include the UK Parliament, although it includes Ministers and the devolved administrations.69 The National Assembly for Wales, although included in Part 2, does not appear in Part 1, although this Part covers both England and Wales.

62 Clause 1(2)(e). 63 Q 321, Mr Turner (British Telecom). 64 Q 321, Mr West (Western Power Distribution). 65 Abbreviation for Distribution Network Operators. 66 Q 321, Mr West (Western Power Distribution). 67 Q 323, Mr Miller (United Utilities). 68 Q 353, Mr Turner (British Telecom). 69 Seventh Report 2002-03 HC 557, para 18.

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77. We recommend that the UK Parliament should be included in Part 2 and the National Assembly for Wales and the UK Parliament be included in Part 1.

Threat to environment

78. Under the draft Bill an event may present a threat to the environment if it causes, or may cause, contamination of land, water or air with fuel oils. Concern has been raised that these terms are overly restrictive or inadequately defined:

“This is a potential loophole which raises the question of the status of other oils, such as lubricating oils and edible oils, all of which could pose a threat to the environment”.70

“This definition of oil would appear to be unnecessarily restrictive as it would only apply to those refined products that are used as fuel in large power plants...A broader definition to cover all eventualities would be provided by replacing ‘fuel oils’ with ‘oil’ or ‘oil and its derivatives’”.71

79. A similar definition to this is used in other legislation, including the Merchant Shipping Act 1995.72

80. There are also concerns about the definition of water, including threats from offshore events. For example, Gloucestershire County Council Fire and Rescue Service recommended that, “the definition of the word ‘water’ needs clarification because of the implications relating to local authority and shoreline clean up”.73 Bristol City Council was concerned that “‘water’ should include… riverine, estuarial and seawater”.74

81. We recommend that the Cabinet Office consider making clearer the definition of oil and water, in the light of the concerns that the Committee has heard.

70 Memorandum from NCCP, Ev 243, question 1. 71 Memorandum from the International Tanker Owners Pollution Federation Ltd, Ev 226, para 3.8. 72 The Merchant Shipping Act 1995 definition is: ““oil" means oil of any description and includes spirit produced from oil of any

description, and also includes coal tar;” and "oil residues" means any waste consisting of, or arising from, oil or a mixture containing oil” (clause 151(1)).

73 Memorandum from Gloucestershire County Council Fire and Rescue Service, Ev 221, question 1. 74 Memorandum from Bristol City Council, Ev 188, question 1.

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3 Category 1 and 2 Responders Background

82. The Bill’s Schedule 1 lists the organisations to be included as Category 1 and 2 Responders. Category 1 Responders will have a statutory duty to assess and plan for an emergency, with further details to be laid out in regulations made under the Bill. Key duties will include risk assessment, maintaining plans to prevent or control an emergency, publishing assessments and plans, and maintaining arrangements to warn the public. At present, they include local authorities, emergency services, ambulance trusts, the Environment Agency and the Secretary of State in relation to maritime and coastal matters.

83. Category 2 Responders include utility companies, railways, airports and harbour authorities and the Health and Safety Executive. The Government told us that Category 2 currently includes “more than 400 private sector organisations”.75 They will be required, through regulations to be published under the Bill, to join with Category 1 Responders to establish arrangements for better communication, cooperation and information sharing.

84. The Government’s Consultation Document asked stakeholders whether they thought the list was appropriate. We also sent out a separate letter to key NHS bodies and organisations in the energy, food and media sectors, asking whether they believed they should be included as a Category 1or 2 Responder.

85. We heard, in evidence from the Government, that their intention was “to capture the people who are at the core of or are essential in cooperating with the local effort. What we are not seeking to do is capture everyone who has even the most peripheral interest in planning in certain local areas”.76 Organisations that are not included in Category 1 or 2 are not intended to be excluded from the planning process: “Bodies that are not covered by the list for Category 1 or Category 2 can of course still continue to be involved in local civil protection”.77

86. We have heard numerous suggestions about the inclusion of other organisations as Category 1 or 2 Responders. We note the Government’s argument that Category 1 and 2 Responders should be focused on the core organisations at the heart of the emergency planning process and welcome the flexibility of the categories.78 We consider below whether more local flexibility is required, given that different areas face very different threats. We also outline below the organisations that we believe ought to be added to the Category 1 and 2 lists.

Local flexibility

87. During the course of our scrutiny, a huge range of organisations have been suggested to us as suitable for inclusion in Category 1 and 2. It is evident that regional and local

75 Q 275, Mr Hargreaves (Head of Bill Team, Civil Contingencies Secretariat). 76 Q 280, Mr Hargreaves (Head of Bill Team, Civil Contingencies Secretariat). 77 Q 282, Mr Alexander (Minister of State, Cabinet Office). 78 The Consultation Document states that “Movement between the two categories will be possible under the Bill. New

organisations may be added in future in either Category”, chapter 3, para 14, p 18.

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diversity means that many of the organisations that would be useful for emergency planning in say, Dartmoor, would be entirely inappropriate in London boroughs. This has led us to question whether the selection of organisations required to aid emergency planning should be allowed more local flexibility.

“There are also particular organisations whose cooperation may be vital to comprehensive planning, such as the operators of major shopping, leisure and sporting complexes. Equally the cooperation of the organisers of major public events is vital… It would probably be better to copy the existing Community Safety legislation, which enables a local authority to require the cooperation of any organisation which it considers has a role to play”.79

“Agencies that are not listed in either Category 1 or 2 should, with consent of the Local Resilience Forum, be adopted (locally) on a temporary or permanent basis if appropriate”.80

88. The Minister in charge of the Bill told us:

“A central part of the intention of the Bill is to ensure that there is a national framework. In that sense we are keen to ensure that there is a degree of coherence in terms of the planning and framework that are in place. Bodies that are not covered by the list for Category 1 or Category 2 can of course still continue to be involved in local civil protection”.81

89. We accept the Government’s intention to create a national framework, and acknowledge that it would be impractical to put every relevant regional or local organisation into Category 2. We do not consider that local flexibility need affect this national framework however, but will instead enhance Category 1 Responders’ abilities to ensure robust emergency planning in their area.

90. We recommend that Category 1 Responders should be able to require any person or organisation to cooperate in planning or training for a response to an emergency. This requirement should be reasonable, necessary, and only be imposed on those most conveniently placed to deal with an emergency, while not creating substantial burdens relative to the resources of any person. Any resources or services required by a person under this section should be paid for by the Category 1 Responder on the most favourable (to the Category 1 Responder) commercial terms.

Central and regional tiers

91. Part 2 of the Bill provides for the appointment of Emergency Coordinators (or, in England, Regional Nominated Coordinators) to coordinate an emergency response following the declaration of an emergency. No other reference to central government or regional government is made on the face of the Bill. Apart from functions related to maritime and coastal matters, central government departments and the regional tier are not given any statutory duties, and have no formal status in the process of contingency

79 Memorandum from NCCP, Ev 243, question 2. 80 Memorandum from Mid Bedfordshire Council, Ev 236, question 3. 81 Q 282, Mr Alexander (Minister of State, Cabinet Office).

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planning set out in Part 1. Devolved administrations are required to be consulted before regulations are published (although this can be disapplied), but their own responsibilities are not explained and they do not have any statutory duty placed upon them.

92. Central and regional government are referred to in the Consultation Document, which outlines the substantive responsibilities that central government undertakes regarding civil contingencies: “all [Government] departments have a responsibility to plan, prepare, train and exercise for handling incidents and emergencies that might occur within their field of responsibility”.82 These mirror the responsibilities of those included as Category 1 Responders. Rather than having a statutory responsibility to undertake these duties however, the Government is working to “establish standards against which departmental contingency planning activities can be monitored and audited”.83

93. The Government has acknowledged that the regional tier proved inadequate during the flooding and the fuel crises in 2000: “arrangements at a regional level were unpractised and led to a disparity in response across the affected areas”.84 As a result, it has suggested that, “robust regional arrangements needed to be put in place”.85

94. We have heard a range of views about the value and practicality of including central and regional government as Category 1 Responders. Several witnesses and consultation responses have suggested that placing statutory duties on central and regional tiers of government and devolved administrations would enhance the creation of a clear national civil contingencies framework:

“The Society is convinced that both central and regional arms of government should be subject to the statutory duties in order that we have this single framework throughout the land”.86

“It is surprising that Government departments have “responsibilities to plan, prepare, train and exercise”, yet are not to be included in the draft Bill”.87

“The absence of Government departments contradicts the ethos of response through the lead Government department principle”.88

“Civil protection is too important an area of public life for statutory responsibilities not to be imposed on any of the agencies which have key roles”.89

“We would certainly support regional government being involved as potentially a Category 1 Responder to provide that focus and coordination for regional response. It was our experience in both the fuel crisis and the foot and mouth outbreak… that we would have benefited from that in the early stages of the outbreak”.90

82 Consultation Document, Chapter 5, para 5, p26. 83 Ibid, Chapter 5, para 6, p26. 84 Ibid, Chapter 1, para 4, p9. 85 Ibid, Chapter 1, para 4, p9. 86 Q 13, Mr Ward (Emergency Planning Society). 87 Memorandum from Kirklees Metropolitan Council, Ev 230, question 3. 88 Memorandum from Ceredigion County Council, Ev 198, question 2. 89 Memorandum from Brent Council, Ev 184, question 2. 90 Q 332, Mr Miller (United Utilities).

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“Should the Welsh Assembly Government be listed as a Category 1 Responder, as it has responsibility for key funding on health, ambulances and other services?”91

95. We have heard from other witnesses that including central government in the Bill may not add much value to the process, as there are already non-statutory relationships and procedures in place:

“Certainly from a health perspective in England we would be looking for the Department of Health to be providing direction and control and operational co-ordination in a very major incident at a regional or national level anyway, and whether or not that was covered by the statute I suspect would not make an awful lot of different at all to the way we engage with them”.92

96. Rhodri Morgan, First Minister of the National Assembly for Wales, told us that he did not think that the National Assembly for Wales should be a Category 1 or 2 Responder because it had qualitatively different functions from those already included in the list:

“no more than a Whitehall department - because we are not providers of the services. We are funders of the services, whether it is ambulance, health or, in the future after transfer, fire; but we are not the providers”.93

97. However, in relation to foot and mouth, Mr Morgan told us that the Welsh Assembly was at the forefront of the response: “We did administer foot and mouth disease, even though we had no powers at all… We had to take de facto powers which we did not have and operate in a way which did not have legal backing, because that was the necessity of the situation”.94

98. The Minister in charge of the Bill told us:

“It is difficult to see how a sensible, meaningful duty could be imposed on central Government by way of statute”.95

99. We note however, that Category 1 already includes “The Secretary of State, in so far as his functions relate to maritime and coastal matters”.96 Moreover, there are numerous examples of legislation imposing duties on Secretaries of State. Section 1 of the Police Reform Act 2002 requires the Secretary of State to prepare a national policing plan.97 The Enterprise Act 2002 s118 imposes a duty on the Secretary of State to publish an agency's report subject to excisions.98 The National Health Service Reform & Health Care Professions Act 2002 imposes a duty on the Secretary of State to establish Strategic Health Authorities and Health Authorities in Wales.99

91 Memorandum from North Wales Police, Ev 248, question 3. 92 Q 309 Mr Kealy (West Yorkshire Strategic Health Authority. 93 Q 152, Mr Morgan (National Assembly for Wales). 94 Q 131 and Q 133, Mr Morgan (National Assembly for Wales). 95 Q 265, Mr Alexander (Minister of State, Cabinet Office). 96 Draft Civil Contingencies Bill, Schedule 1. 97 Police Reform Act 2002, Ch. 30, 1. 98 Enterprise Act 2002 s118. 99 National Health Service Reform & Health Care Professions Act 2002, Ch. 17.

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100. The Minister also raised concerns that “there is a particular legal difficulty with [imposing a legal duty], in that Government Offices of the Regions do not have a separate legal personality and therefore to place a distinct legal burden upon them would be, to say the least, difficult”.100 We wonder how the Government’s desire to make arrangements for the regional tier more robust101 can be achieved with a regional administrative centre that does “not have a separate legal personality”. In any case, we suggest that placing a statutory duty upon Secretaries of State will overcome this issue.

101. Given that central and regional government and the Welsh Assembly Government do in reality plan for and respond to emergency situations, we can see no reason for not according them a statutory duty to do so. At the moment, the Bill appears to be very ‘bottom heavy’, with all statutory duties being accorded to local providers and a cloak of invisibility being drawn over the regional and central tiers. It is entirely conceivable that a local emergency could turn into a regional one and then a national one. Given this potential, it is vital that the role of the regional and central tiers is clarified and codified, so that the chain of responsibilities is obvious to all. Without a statutory duty on central or regional tiers, it is difficult to see how the comprehensive national framework that the Government hopes to attain through this Bill can be achieved.

102. We recommend that the role and responsibilities of Government Departments, the National Assembly for Wales and regional government are outlined on the face of the Bill and that they are given a statutory duty to undertake their responsibilities.

Local government arrangements

103. County councils and Shire district councils are both included as Category 1 Responders, which in effect accords them the same duties and responsibilities. However, the Consultation Document states that, “county councils will take full responsibility for local authority civil protection planning in their area”.102 This has led to confusion about what the responsibilities of district councils will be and concern that their current role in emergency planning is being overlooked:

“The district council seeks better definition for the responsibilities within each Category. It cannot support the view that no additional resources are required to meet the wider scope and potentially higher standards envisaged by the Bill”.103

“It is irrational to suggest that Shire counties take full responsibility for local authority civil protection planning in their area. Counties lack the resources, staffing and local expertise to effectively meet their proposed new responsibilities without the support of a District Emergency Planning Officer or equivalent in post”.104

104. When we asked him to clarify matters, the Minister told us:

100 Q 283, Mr Alexander (Minister of State, Cabinet Office). 101 Consultation Document, Chapter 1, para 4, p9. 102 Ibid, chapter 3, para 10, p 17. 103 Memorandum from Rochford District Council, Ev 260, Part 1, para 2 and Part 2, para 2. 104 Memorandum from Exeter City Council, Ev 216, question 2.

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“We believe the main civil protection burden will continue to fall on the counties as it does at present but the Bill will allow for clear roles and responsibilities and minimise duplication of effort. We have included districts in Category 1 because of their role in delivering key functions such as housing and environmental health”.105

105. We recommend that the responsibilities, in England, of County councils and Shire District councils should be explicitly set out on the face of the Bill.

Fire and Civil Defence Authorities (FCDAs)

106. Under the draft Bill, FCDAs seem likely to be prevented from undertaking emergency planning arrangements on behalf of local authorities, as they have been doing in Tyne and Wear and Merseyside for several years. Several other FCDAs exist around England, although each has its own arrangements and duties. The Consultation Document states that “FCDAs will not exercise any aspects of the civil protection duties under the Bill on behalf of local authorities”.106 No explanation is given as to why this should be the case, except that “Joint working… is not always appropriate”.107 Some witnesses have strongly recommended that existing arrangements be allowed to continue:

“There is no reason in principle why the imposition of an obligation on all local authorities should necessarily result in joint and collaborative arrangements ceasing. On the contrary, if all local authorities have similar obligations, there is very good reason why they should work together”.108

“I would advocate that good practice/excellent practice where it exists, such as Tyne and Wear, should continue”.109

107. We recommend that the Government re-examine its stance and consider whether successful existing arrangements, such as Fire and Civil Defence Authorities, should be left in place.

NHS

108. We invited NHS organisations in England and Wales to comment on the fact that the only representatives of the Health Sector mentioned in the Bill were Ambulance trusts. All 22 replies contended that some or all of the NHS should be included as Category 1 or 2 Responders:

“there are very few (if any) areas of potential resilience response which do not have NHS implications”.110

“it is difficult to see how issues of availability, capacity etc of the NHS facilities could be addressed by anyone else”.111

105 Q 277, Mr Alexander (Minister of State, Cabinet Office). 106 Consultation Document, chapter 3, para 31, p20. 107 Ibid. 108 Q 10, Mr Griffin (Local Government Association). 109 Q 10, Mr Ward (Emergency Planning Society). 110 Memorandum from Northumberland and Tyne & Wear Strategic Health Authority, Ev 248.

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109. We heard from witnesses that certain parts of the NHS should be included in Category 1:

“I think it is appropriate to have in Category 1 strategic health authorities, PCTs112 and acute trusts. I think this is a recognised admission… they may not be a blue light in terms of the London ambulance or the ambulance service at large, but certainly the response and the planning is well within the remit and it is a key responsibility of the strategic health authority and the PCTs”.113

“From a Wales perspective where the structure is slightly different we agree that it should be both trusts, the ambulance service and local health boards as Category 1 organisations”.114

“The National Public Health Service absolutely should be a Category 1 Responder, to my mind. Their role is vital in response to incidents that involve chemicals, biological agents and that type of incident”.115

110. We have heard that these parts of the NHS already undertake the emergency risk assessment and contingency planning required of Category 1 Responders:

“The work around risk assessment and planning, information sharing and actual incident response is all part of general major accident planning and emergency preparedness in SHAs116, NHS trusts and PCTs”.117

“All acute hospitals, PCTs, strategic health authorities and ambulance services in general have a responsibility to have an emergency plan with escalation triggered within those plans”.118

111. There were varying degrees of support for including the Health Protection Agency (HPA) as a Category 1 or 2 Responder:

“In terms of the Health Protection Agency within Wales and the National Public Health Service ... their role is vital in response to incidents that involve chemicals, biological agents and that type of incident”.119

“We would see the HPA very much as an advisory body providing advice and expertise to the NHS organisations … and in that advisory capacity I am not sure it would be necessary for the HPA to be categorised as a formal Category 1 or 2 respondent”.120

111 Memorandum from Ceredigion Local Health Board, Ev 201. 112 Abbreviation for Primary Care Trusts. 113 Q 299, Mr Pullin (South West London Strategic Health Authority). 114 Q 299, Mr Williams (North Wales Health Emergency Planning Group). 115 Q 307, Mr Williams (North Wales Health Emergency Planning Group). 116 Abbreviation for Strategic Health Authorities. 117 Q 302, Mr Kealy (West Yorkshire Strategic Health Authority). 118 Q 303, Mr Pullin (South West London Strategic Health Authority). 119 Q 307, Mr Williams (North Wales Health Emergency Planning Group). 120 Q 307, Mr Kealy (West Yorkshire Strategic Health Authority).

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“It is important to note that by this time next year the HPA will not be part of the NHS and their role and responsibilities need to be clearly defined as a consequence of that transfer”.121

112. It has been proposed that the National Blood Service, medical gas supply companies or NHS supply companies are included as Category 2 Responders, because “we have to be confident in our response, in our planning arrangements, that those services behind us can support us in the event of a long-term destructive challenge”.122 It was also noted, however, that by including pharmaceutical organisations “the Category 2 list would become never ending as a consequence.”123 We were also told that their inclusion may not be necessary as “there are emergency stores of mainline drugs around the country, both with the Ministry of Defence and the Ministry of Health, and it is something that the Department has access to on an as-required basis”.124

113. In conclusion, we recommend that Category 1 also include (in England) Strategic Health Authorities, Primary Care Trusts, Acute Hospital Trusts, (in Wales) Local Health Boards, Public Health Services and the National Public Health Service for Wales.

114. We recommend that the Health Protection Agency, National Blood Service and Welsh Blood Service be included as Category 2 Responders.

Utilities

115. Electricity, gas, water and telecommunications companies are included as Category 2 Responders under the Bill. Paragraphs 73-75 have already outlined the utility companies’ concerns about an overlap in their own emergency planning duties under other legislation and the role of Category 1 Responders in this Bill.

116. We have also heard that the requirement for Category 2 Responders to provide information to all Category 1 Responders would cause utility companies practical and financial difficulty, not reflected in the Partial Regulatory Impact Assessment:

“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”.125

“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

121 Q 307, Mr Pullin (South West London Strategic Health Authority). 122 Q 300, Mr Williams (North Wales Health Emergency Planning Group). 123 Q 308, Mr Pullin (South West London Strategic Health Authority). 124 Ibid. 125 Q 327, Mr Miller (United Utilities).

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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”.126

“As drafted, the Bill provides for each and every Category 1 Responder to require every Category 2 Responder to cooperate, attend meetings etc. ... In WPDs case, it interfaces with over 45 county, county borough and district councils alone, let alone the other Category 1 Responders”.127

117. Many of the utilities advocated interfacing at county or regional level, rather than at local level:

“We would certainly welcome a regional forum because having that regional footprint… 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 in Manchester for instance”.128

“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”.129

“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 coordinating the interface with the local authorities below them”.130

“Virtually all 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”.131

118. The Government has acknowledged the utility companies’ concern and has proposed that utilities be involved at local resilience forum level, based on police force areas:

“Of course, utility companies do not always cover the whole country; they tend to cover a region, so realistically perhaps four or five interfaces with the local level for each utility company, which to our mind seems to strike the right balance in terms of the degree of involvement”.132

119. We conclude that the Government’s proposal to involve utilities at local resilience forum level represents a practical compromise.

126 Q 326, Mr Turner (British Telecom). 127 Memorandum from Western Power Distribution, Ev 141, paras 15-16. 128 Q 327, Mr Miller (United Utilities). 129 Q 326, Mr Tuner (British Telecom). 130 Q 328, Mr West (Western Power Distribution). 131 Q 329, Mr Miller (United Utilities). 132 Q 279, Mr Hargreaves (Head of Bill Team, Civil Contingencies Secretariat).

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Voluntary sector

120. The Government has chosen not to include the voluntary sector as Category 1 or 2 Responders, because “the skills and expertise available to the voluntary sector may vary from place to place”.133 In his evidence, the Minister in charge of the Bill said that:

“Our concern in terms of framing the legislation was to ensure that we did not impose legal duties on organisations which, by their character, were unable to necessarily secure a uniform level of provision or service across the entirety of the country”.134

121. Their involvement in local multi-agency planning and response will however be encouraged in the forthcoming guidance to the Bill.135

122. We have heard that the resources of the voluntary sector would be of great use in an emergency:

“I think that the role of the voluntary organisations is vitally important and, from my own area, I have one particular allegiance with the WRVS and they are absolutely superb in providing an excellent service in the back up to the emergency services”.136

“we feel it is absolutely imperative that voluntary sectors are included as part of the planning organisations, but as part of the regional resilience committees and forums rather than as Category 1 or 2 Responders because we do feel it would be difficult to apply statutory responsibilities to voluntary organisations because of the obvious funding issues”.137

“we believe voluntary agencies could quite probably be treated as Category 2”.138

123. There is varying opinion within the voluntary sector about whether they wish to be included as a Category 1 or 2 Responder or could deliver the demands this would place upon them.

124. The Red Cross told us that they should be made a Category 1 Responder: “With this unique status as auxiliary to the statutory authorities in the humanitarian field we feel strongly that we would be failing in our duty if we did not come in and support statutory partners and give humanitarian relief and that is why we have asked to be designated a Category 1 Responder.”139 The Red Cross later outlined a more flexible approach: “The Red Cross believes that the final legislation should place a statutory responsibility on Category 1 Responders to involve the relevant voluntary organisations in all aspects of civil protection. We are flexible as to how this might be achieved”.140

133 Consultation Document, chapter 3, para 13, p 18. 134 Q 275, Mr Alexander (Minister of State, Cabinet Office). 135 Consultation Document, chapter 3, para 13, p18. 136 Q 19, Mr Ward (Emergency Planning Society). 137 Q 39, Mr Dobson (London Fire Brigade). 138 Q 41, Mr Goldsmith (Association of Chief Police Officers). 139 Q 359, Ms Beardshaw (Red Cross). 140 Q 370, Ms Beardshaw (Red Cross).

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125. Whilst all of the voluntary organisations that we spoke to believed that they had a valuable role to play in planning for or responding to an emergency, most did not believe that they should have a statutory duty imposed upon them:

“I would like to stress that we see ourselves as giving assistance to and not assuming the principal role in providing support. We have some 30,000 volunteers, but we have to recognise that many of those volunteers also have other commitments and amongst our many volunteers are doctors, nurses and paramedics whose prime responsibility would be to respond principally to the National Health Service rather than St John Ambulance in times of emergency”.141

“It is the element of support in providing that which is in addition to that which is provided by the statutory services, which we feel is a very significant role and it is another dimension to the role that is provided in the case of an emergency and we would not want to commit ourselves to a task that we would not be able to fulfil perhaps in some locations”.142

“We recognise the problems of having statutory status not just from the point of view of guaranteeing a level of service but actually influencing the relationship we have with our funders at a local authority level and we have been working hard to try and secure funding streams there to support the work that we do and if we were to become a Category 1 status body that may have an impact at that level”.143

126. There was support for voluntary organisations to have a consultative role in emergency planning:

“we feel we should be consulted. We see ourselves as partners, albeit supportive partners and we believe we should be consulted by the Category 1 providers”.144

“I think the obligation on Category 1 Responders to consult with the voluntary organisations would perhaps lead to a more consistent approach to emergency planning and the way the involvement of voluntary organisations is managed”.145

“there needs to be some inclusive approach to the voluntary sector, something explicit within the Act, so passing the responsibility on the Category 1 or perhaps 2 Responders… what we should ultimately end up with is the voluntary sector appropriately involved in every aspect of civil protection”.146

127. We have also heard concerns that local flexibility is vital if the most appropriate voluntary organisations are to be involved in emergency planning:

“Providing a list of who would be Category 2 in particular is difficult because there is so much local variation. As an example, in Lincolnshire we might actually want the marsh wardens who work in The Wash actually to be involved at that level. I am

141 Q 361, Mr Brown (St John Ambulance). 142 Q 362, Major Cochrane (Salvation Army). 143 Q 363, Mr Lever (Women’s Royal Voluntary Service). 144 Q 370, Mr Brown (St John Ambulance). 145 Q 370, Mr Lever (Women’s Royal Voluntary Service). 146 Q 363, Ms Wood-Heath (National Voluntary Aid Society Emergency Committee).

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sure that to put them in the list would not mean that in London you would have marsh wardens… There needs to be that flexibility”.147

“Clearly the national voluntary organisations are able to get involved at a national level but there are different parts of the country, like Dartmoor, where there are lots of local organisations who support emergency planning for those areas and I think it is vital they have the ability to have that flexibility”.148

“That represents a positive flexibility, in the sense of drawing into consultation those specialist organisations in particular parts of the country which have something particular to offer. St John Ambulance does not believe it will be correct to provide flexibility so that some organisations could be excluded from consultation”.149

128. We recommend that a statutory duty be placed upon Category 1 Responders to consult with and involve relevant voluntary organisations in civil contingency planning.

129. Given the plethora of voluntary organisations and the individual requirements of local areas, we recommend that Category 1 Responders be given flexibility to identify and consult with the most relevant voluntary organisations in their area.

Nuclear and chemical sites

130. No mention is made in the draft Bill about sites that have the potential to create emergencies, for example operators of establishments subject to the Control of Major Accident Hazards (COMAH) Regulations. This could include major chemical factories or nuclear plants.

“COMAH site operators should be included, especially in London where COMAH sites are dealt with through LFEPA150, potentially leading to a lack of liaison at the local level”.151

131. Given their potential to cause, as well as their ability to respond to a major disaster, we recommend that the Government consider whether to include in Category 2 all operators of establishments subject to the Control of Major Accident Hazards (COMAH) Regulations and organisations that have an emergency response through national schemes, including the National Arrangements for Incidents involving Radioactivity (NAIR), RADSAFE and CHEMSAFE.

Private sector industries

132. At present, railways, airports and harbour authorities are included as Category 2 Responders. The House of Commons Transport Committee has suggested that consideration be given to including road based transport enterprises:

147 Q 41, Mr Goldsmith (Association of Chief Police Officers). 148 Q 371, Mr Lever (Women’s Royal Voluntary Service). 149 Q 371, Mr Brown (St John Ambulance). 150 Abbreviation for London Fire and Emergency Planning Authority. 151 Memorandum from London Borough of Richmond upon Thames, Ev 233, question 3.

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“[Category 2 Responders] do not include those providing road based transport. There is no explanation for this distinction, beyond a reference in the Regulatory Impact Assessment… one can imagine circumstances in which those planning for an emergency evacuation, say, would wish to know how many buses were available in a particular district”.152

133. This view is endorsed by others:

“Major transport providers should be aligned to this Category [2]… because local authorities rely on transport to take people from the incident site to rest centres and therefore there must be that cooperative requirement for us to be able to plan adequately”.153

“Bus operating companies and/ or transport authorities with bus operating responsibilities should be included as Category 2 Responders”.154

134. We have also heard evidence that the food and drink industry should be included as Category 2 Responders:

“The industry plays a key, strategic and vital role in the UK Economy and Category 1 Responders need to be aware of the ‘emergency’ impacts on the industry”.155

“Food and animal feed producers, processors, distributors and retailers should be considered for inclusion in Category 2”.156

“There are a number of central government agencies – a couple that come immediately to mind are the Food Standards Agency and the Health Protection Agency – that have a major role to play in many emergencies.157

135. Others have suggested including private security firms as Category 2 Responders.

136. We have not had an opportunity to take oral evidence from these sectors and therefore have not had time to explore these areas in great depth. We recommend that the Government consider whether to include the Highways Agency, transport enterprises, fuel suppliers, the food sector and private security firms as Category 1 or 2 Responders.

152 Memorandum from the House of Commons Transport Committee, Appendix 2. 153 Q 23, Mr Ward (Emergency Planning Society). 154 Memorandum from Kirklees Metropolitan Council, Ev 230, para B. 155 Memorandum from the Food and Drink Federation, Ev 219. 156 Memorandum from the Food Standards Agency Wales, Ev 219, para 4. 157 Q 14, Mr Griffin (Local Government Association).

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4 Human Rights Issues 137. In this chapter we deal with the human rights aspects of the draft Bill. Both the Defence Committee and the Joint Committee on Human Rights have commented on these issues and we have drawn on their work as well as taking oral and written evidence ourselves.158

Background constitutional principles

138. The human rights concerns arise most acutely in relation to Part 2 of the draft Bill (Emergency Powers). In this respect, the draft Bill replaces the Emergency Powers Act 1920, which was passed three decades before the United Kingdom ratified the European Convention on Human Rights and nearly eight decades before the Human Rights Act 1998 incorporated the Convention rights into UK law and provided for remedies in the UK courts. As a result of these developments, there is heightened attention and perhaps precision to the issue of infringement of rights than was previously the case. In addition, since 1920, wartime legislation and laws against terrorism have provided experience of the relevance of rights, the powers and limitations of judicial and parliamentary protection, as well as the relevance of mechanisms such as notices of derogation.

139. Of the constitutional principles which must be observed in civil contingency planning and in times of extreme crisis, disaster and emergency, the first we consider is the values of individual rights.159 We deal below with other constitutional aspects of the draft Bill. These concepts closely correlate with the requirements of the European Convention on Human Rights, as embodied in the Human Rights Act 1998. The Convention is evidently infused with the values of rights and, within that context, seeks to proffer principles such as:160

• Legality – is there a clear and accessible legal basis for processes and powers on the part of public authorities, the basis of which can be tested?

• Necessity – was the invocation of the public authority’s emergency power which infringed rights strictly required in response to the threat or crisis, or could “normal” powers have been utilised?

• Proportionality – even if new provisions are in principle necessary, were actions taken by public authorities proportionate to the threat or crisis which they are seeking to act against?

Relevant provisions of the Bill to be examined

140. The draft Bill itself does not appear to contain any specific encroachment on human rights – indeed, it contains specific protections for some Convention rights. But it is an

158 Seventh Report 2002-03 HC 557 2 July 2003 and Fifteenth Report 2002-03 HC 1005 HL Paper 149 14 July 2003. 159 See especially the summary provided by the Council of Europe, Guidelines on Human Rights and the Fight Against

Terrorism (Strasbourg, 2002). 160 These are rightly emphasized by the Memorandum from the West Yorkshire Police (as lead for Regional Resilience

Yorkshire and Humber Region), Ev 279, p.4.

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enabling Bill under which regulations could be made which do breach such rights. The human rights organisation JUSTICE told us:

“The fact that the Government does not intend to breach someone’s rights does not prevent it from doing so. If you want to look at a very recent incidence, the application of section 55 of the 2002 Nationality, Immigration and Asylum Act was in technical breach of Article 3. I do not want to impute to anybody who was involved in the drafting of that legislation that they intended to breach Article 3”.161

141. In an emergency, a derogation under Article 15 of the European Convention may at times be necessary. The country concerned has to establish that the necessary criteria are met. Article 15 states as follows:

“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”.

142. The main features of the draft Bill relating to human rights are as follows:

• Regulations would be treated as primary legislation (i.e. Acts of Parliament) for the purposes of the Human Rights Act 1998.

• Regulations could not be made which (a) required a person to provide military or industrial service (ECHR Article 4), (b) prohibited industrial action (Article 11) or (c) allowed a special tribunal to try offences (Article 6.1).

• On the other hand, there is no specific protection for the human rights which should not be abrogated even in emergencies – the right to life (Article 2), freedom from torture (Article 3) and the ban on penalties for retrospective offences (Article 7).

• It would be possible under the draft Bill for regulations to be made which breached the derogable rights to (a) freedom from detention without trial (Article 5), (b) respect for private and family life and the home (Article 8), (c) freedom of expression (Article 10), (d) freedom of assembly (Article 11) or (e) peaceful enjoyment of possessions (Article 1, Protocol No 1).

• Confiscation or destruction of property could be permitted with or without compensation.

• The creation of criminal offences with penalties of up to three months imprisonment.

143. These give rise to various questions:

• What is the relationship between derogation under Article 15 and the exercise of powers under the Bill?

161 Q 223, Dr Metcalfe (JUSTICE).

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• Is it reasonable to limit the possibility of human rights-based challenges to the regulations?

• Would the restriction on compulsory industrial service hamper relief work?

• Should there be protection for the essential non-derogable rights or more protection for the rights from which there may be derogations in emergency?

Treating secondary legislation as an Act of Parliament

144. Of all the human rights issues, most witnesses162 regarded as the most serious the power in clause 25 to treat secondary legislation as if it is an Act of Parliament for the purposes of the Human Rights Act 1998. The problem it seeks to address is as follows. In theory, a court might rule that regulations made under Part 2 of the Civil Contingencies Bill were invalid, or might grant an injunction against action being taken pursuant to them before the legal issues had been fully argued in court. This might occur within the seven days between the regulations being made and their being approved by Parliament. The scenario envisaged is therefore of a Government unable to respond effectively to an emergency because the courts have ruled their measures actually or potentially illegal.

145. Both the Defence Committee and the Joint Committee on Human Rights have said:

“…this new provision should not be included in the Bill unless the Government can demonstrate a clear and compelling need for the additional powers which it provides”.163

146. The Constitution Committee has told us:

“We are not satisfied that the Government has demonstrated a compelling need for this departure from the structure for the protection of Convention rights created by the 1998 Act, and we consider that this approach would run the risk of creating an undesirable precedent”.164

147. The ability of Ministers to make draconian regulations which breach human rights would not be entirely unfettered even with clause 25 remaining part of the Bill. The regulations would be subject to approval by Parliament within seven days and might not receive that approval. It would still be open to a court to declare that a regulation was incompatible with the Convention under section 4 of the Human Rights Act, though, as with primary legislation, this would not invalidate the regulation. The prospect of subsequent litigation might also act a deterrent. And regulations would still be subject to normal judicial review under the Civil Procedure Rule 54. Nevertheless, the Government recognises that the restraint imposed on striking down on human rights grounds under clause 25 would be an important departure from normal practice and so “believes that the case for its inclusion in the draft Bill is by no means certain”.165

148. The effect of clause 25 is viewed with concern for three main reasons:

162 See for example Memorandum from Liberty, Ev 87, para 32. 163 Seventh Report 2002-03 HC 557 para 68 and Fifteenth Report 2002-03 HC 1005 HL Paper 149 para 3.25. 164 Memorandum from the House of Lords Select Committee on the Constitution, Appendix 1, para11. 165 Consultation Document chapter 5 para 36 p 30.

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• One is on grounds of precedent – that the Human Rights Act is a finely balanced statute166 which governs the relationship between state and individuals - and should not be changed even in an emergency or, perhaps, especially in an emergency. Allied to the ground of principle is the fear of the slippery slope – that a precedent will be set which other legislation will follow, perhaps dealing with such serious issues as terrorism, serious frauds and drug trafficking.

• The second is that in practical terms the value of rights is being diminished. It removes the possibility of the courts striking down the secondary legislation on grounds of incompatibility with Convention rights.

• The third reason for criticism of clause 25 is simply that the curtailment under clause 25 is not necessary.

149. Three reasons may be adduced for questioning the need for clause 25:

i) There is little evidence that judges are overly “activist” in dealing with challenges to emergency powers.

ii) Judges are unlikely to prevent the Government taking action when the balance of convenience is against interfering with measures to protect public safety.

iii) It is always possible for the Government to derogate from parts of the European Convention.

150. Though it is true that there has been some shift from the very deferential attitudes which tended to prevail in wartime,167 the vast majority of challenges to emergency powers (for example against terrorism) have been rejected by the courts.168 On this point we have been told by human rights experts:

“The courts have been traditionally deferential towards the Executive in times of public emergency, that is in general the approach that courts have taken. That is true not just of the UK but other comparable jurisdictions, the United States as well. You will find a general attitude in common law jurisdictions that courts in times of emergency will give proper deference to the role of the Executive in making [the] regulations…”.169

“…there is nothing in our constitutional or legal history to suggest that our courts are anything other than deferential to the Executive and indeed to Parliament in times of national emergency or fear of national emergency”.170

“If the Government is coming to court for, say, emergency flood relief, the court will have regard to the balance of convenience and I question whether any UK court or

166 QQ 213 and 217, Ms Chakrabarti (Liberty). 167 Note by Christopher Barclay, House of Commons Library - Legal Challenges to Emergency Powers, Appendix 12. 168 See especially Brind and obiter of Hoffman in Rehman. It may be noted that, albeit from an earlier era, there has only ever

been one reported successful challenge in the history of the Emergency Powers Acts 1920-64. That challenge occurred in Smith v Wood, (1927) 43 TLR 178. concerning the prosecution of union officials for threatening to withdraw safety cover at a coal mine, a prosecution depending on a regulation which was unlawful as it effectively made it an offence to take part in a strike.

169 Q 190, Dr Metcalfe (JUSTICE). 170 Q 213, Ms Chakrabarti (Liberty).

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High Court judge would ever strike down regulations that gave the Government power if needed to address a clear state of emergency”.171

“There can be no suggestion in reality that it would be realistic that the courts would wish to or be able to strike down in any serious and enduring way these regulations before Parliament had a chance to give them primary legislative effect”.172

151. Nor are the judges very ready to grant injunctions even when they decide that a challenge is sustainable, recognising that the balance of convenience is against interfering with executive action intended to protect public safety.173

152. Finally, the possibility of derogation under article 15 of the European Convention must be considered quite feasible. This process takes little time – the Secretary General of the Council of Europe has to be notified after the derogation is made.174 To give effect to the derogation in UK law, the Secretary of State has to make an order under section 14 of the Human Rights Act 1998. The Government followed this path when bringing forward the Anti-Terrorism, Crime and Security Bill in 2001. Derogations have persisted as a common feature of emergency and anti-terrorism legislation to prevent terrorism in Northern Ireland since 1968. If the circumstances demand some temporary encroachment on human rights, it could be argued that a derogation from the European Convention would be the most Convention-compliant way of proceeding.175

153. There is a further question mark concerning the necessity of clause 25. The issuance of a proclamation/declaration under clauses 18/19 is not subject to this provision and so is reviewable under the Human Rights Act. If it remains possible to challenge the legal basis of the emergency powers and thereby challenge every regulation issued, why should there be restraint on challenging an individual regulation? It is suggested that challenge to the exercises of clauses 18/19 should be possible, but should be subject to the same procedural safeguards as are mooted below as amendments to clause 25.

154. It should be noted, however, that clause 25 does not remove all possibility of legal challenge or even striking down. Under the normal principles of judicial review, it remains possible to challenge either the secondary legislation itself or, and probably more likely, any executive actions taken under it as ultra vires under the Civil Procedure Rule 54, and the individual action (but not the validity of the regulations) can still be challenged as in breach of the Human Rights Act 1998.

171 Q 217, Dr Metcalfe (JUSTICE). 172 Q 215, Ms Chakrabarti (Liberty). 173 E.g. A and others v Secretary of State for the Home Department [2002] EWCA Civ 1502. 174 Q 209, Ms Chakrabarti (Liberty) & Dr Metcalfe (JUSTICE). 175 The deferential judicial stance is also shared by the European Court of Human Rights, wherein most challenges to the

special laws in Northern Ireland, perhaps the closest analogy which can be found, have failed. A notable exception was Brogan v United Kingdom (App.nos. 11209/84; 11234/84; 11266/84; 11386/85, Series A, No 145-B, (1989) 11 EHRR 117, but that judgment is hardly a convincing example of the courts causing havoc to the security forces. In that case, the European Court of Human Rights determined that there had been a breach under Article 5 arising from a failure to provide within a reasonable time judicial review of the necessity for detention in police custody under the Prevention of Terrorism (Temporary Provisions) Act 1984. The outcome was the lodging of a notice of derogation and no legislative change (or more than minor changes in operations) until the Terrorism Act 2000, over a decade later. It may be conceded that the derogation did not apply to international terrorism and so would become problematic post September 11th if the law had not been altered by the 2000 Act, though there is again always the device of derogation and indeed a further derogation allowing the alternative to police detention pending charge of detention without trial (under the Anti-terrorism, Crime and Security Act 2001, Part IV) is now in operation.

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155. Assuming that there persists a remote risk of the courts frustrating the ability of the Government to cope with an emergency, we have considered what other legal devices might be available to avoid the consequent disruption which might arise.

• One possibility is that a court should not be able to implement any finding of invalidity until there had been an opportunity for the exhaustion of all appeal processes. Normally, this power to stay its decision pending an appeal would be at the discretion of the court,176 but legislation could delimit that discretion, and this interference with normal judicial discretion would still be preferable to the total abolition of Human Rights challenge.

• Another possibility would be to provide for a stay pending the opportunity for parliamentary scrutiny. On this scenario, rather than awaiting the exhaustion of appeal processes, the courts might fix a set time (say 40 days) for suspension of a judgment sufficient for Parliament to take action by way of amending regulations.

• An additional option to both of the foregoing would be to provide for some changes to judicial process. For example, it might be suggested that challenges to the legality of such regulations could only be made directly to a higher judicial body – the High Court at least, or perhaps even to the proposed Supreme Court. In addition, challenges could be fast-tracked.

156. We conclude that the Government has not demonstrated a clear and compelling need to treat regulations under the Civil Contingencies Bill as having the status of Acts of Parliament for the purposes of the Human Rights Act. At most, there may be a need for some procedural changes, such as a fast track process within a higher court, plus a compulsory stay on the enforcement of any court order until the appeal is exhausted. We welcome the Government’s willingness to reconsider this matter.

Protections for human rights currently mentioned within the Bill

157. Three specific human rights are protected under the draft Bill. Regulations could not be made which:

• required a person to provide military or industrial service (ECHR Article 4) – clause 21(4)(a)

• prohibited industrial action (Article 11) – clause 21(4)(b) or

• allowed a special tribunal to try offences (Article 6.1) – clause 21(4)(d).

158. The restriction in clause 21(4)(a) on requiring people to undertake “military or industrial service” in an emergency has been the subject of some adverse evidence on behalf of ACPO to the Committee:

“…one could requisition property in that way but not necessarily require individuals to drive them on your behalf….. in terms of heavy lifting gear, for example, if one wanted to requisition that for a rescue I would guess that the skill needed actually to

176 Q 220, Dr Metcalfe (JUSTICE). The courts do exercise this discretion, most notably in A v Secretary of State for the Home

Department [2002] EWCA Civ 1502.

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operate that would be very specialised and would be very difficult to find outside of that industry, and yet there is no power in the regulations to require the individual to operate that machinery on your behalf”.177

159. But work in the nature of a “function” may be required under clause 21(3)(k), and one may interpret “function” to mean limited specific work rather than continual employment as in a “service”. It is probably unwise to go further and remove clause 21(4)(a) since it reflects Article 4 of the European Convention, a non-derogable right under the European Convention, and forced civilian labour may also contravene the Geneva Convention.178 On the other hand, the wording of Article 4 is elaborated in Article 4(3) as expressly not including, “(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community”. “Emergency” is interpreted widely, and certainly covers situations other than what normally would be viewed as a “disaster”.179

160. It has next been drawn to our attention that the restriction on regulations prohibiting strike or other industrial action in clause 21(4)(b) is more narrowly drawn than the equivalent provision in the 1920 Act. Section 2(1) of the latter prevented regulations being issued to make it an offence “to take part in a strike, or peacefully to persuade any other person or persons to take part in a strike.” This raises the possibility that it could be made unlawful under the Bill for specific groups to take part in industrial action.180

161. Next, the interplay of clause 21(3)(k) and clause 21(4)(b) could be clarified.181 Clause 21(3)(k) could be invoked to impose new forms of statutory duty which could then be breached by industrial action, liability for which would fall outside the normal scope of immunities for industrial action. The regulation of peaceful picketing182 could also be clarified by adding a specific regulation-making power under clause 21(3) and removing picketing from the ambit of clause 21(3)(f), so that the matter can be specifically signalled and debated.

162. The Minister told us:

“It will not be possible for emergency regulations to prohibit individual groups from taking part in industrial action… The effect of this provision is the same as under the

177 Q 65, Mr Goldsmith (ACPO). See also Memorandum from ACPO, Ev 21, under “Further matters for consideration”. 178 But compare the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949 art.51: The

Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted. The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country. Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in military operations. The Occupying Power may not compel protected persons to employ forcible means to ensure the security of the installations where they are performing compulsory labour. The work shall be carried out only in the occupied territory where the persons whose services have been requisitioned are. Every such person shall, so far as possible, be kept in his usual place of employment. Workers shall be paid a fair wage and the work shall be proportionate to their physical and intellectual capacities. The legislation in force in the occupied country concerning working conditions, and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training and compensation for occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in this Article. In no case shall requisition of labour lead to a mobilization of workers in an organization of a military or semi-military character.

179 For example, in Iversen v Norway, service in northern Norway could be imposed upon dentists because of a shortage of volunteers. Likewise, a requirement that those holding shooting rights should participate in the gassing of foxholes to control rabies was upheld in S v Germany.

180 Memorandum from K Ewing, Ev 213, para 8. 181 Memorandum from G Morris, Ev 241, p.3. 182 Memorandum from G Morris, Ev 241, p.3.

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1920 Act. We were keen as much as possible to seek to reflect what is a settled position from the 1920 Act”.183

163. Section 2(2) of the Emergency Powers Act 1920 provides that regulations shall not alter any existing procedure in criminal cases.184 This is not replicated in the Bill. We can imagine that issues of venue and time-limits may have to be altered in an emergency. The Minister made plain that any emergency regulations affecting criminal jurisdiction would have to be consistent with the right to a fair trial in Article 6 of the ECHR.185

164. We recommend that the Bill should provide that regulations shall not alter any existing procedure in criminal cases in any way which is inconsistent with Article 6 in the Human Rights Act.

165. Clause 21(3)(l) allows regulations to confer jurisdiction on a court or tribunal, including a tribunal established under the regulations. The Minister was asked186 whether there had been consultation with the Council on Tribunals and subsequently replied that the Government had not yet done so but, in the light of our concerns, would be consulting the Council.187 It was also put to him that the Council on Tribunals “as a general policy, has advised very strongly against the creation of any court or tribunal otherwise than by primary legislation”. The Minister undertook to bear the point in mind.188

166. We recommend that the Cabinet Office put in place arrangements to ensure that the Council on Tribunals is properly consulted about clause 21(3)(1) and that the arrangements to create possible new courts or tribunals are set out in detail in regulations published in draft (see paragraphs 193-196).

Protections for non-derogable human rights not currently mentioned in the Bill

167. The draft Bill contains some protection for human rights which can legally be suspended in an emergency but, aside from the partial protection for article 4 above (on forced labour), not for those from which member States cannot derogate under the European Convention, article 15. It could be argued that it is unnecessary to repeat in the draft Bill that regulations may not be made which interfere with the right to life (article 2), freedom from torture or punishment (article 3), and protection from retrospective criminal offences (article 7) because those principles are already enshrined in the Convention and enforceable under the Human Rights Act 1998.189 But uncertainty could arise concerning the relationship between the Civil Contingencies Bill and the Human Rights Act because of the existence of clause 25. In most cases, the rules of interpretation in section 3 of the Human Rights Act should ensure its predominance over the later regulatory legislation arising under this Bill, but there is left an area of uncertainty as to how judges will react in

183 Q 256, Mr Alexander (Minister of State, Cabinet Office). 184 Memorandum from D Bonner, Ev 178, para 13. 185 Q 292, Mr Alexander (Minister of State, Cabinet Office) 186 Q 291, Mr Alexander (Minister of State, Cabinet Office) 187 Further Letter from Douglas Alexander MP, Minister of State, Cabinet Office, Ev 124. 188 Q 293, Mr Alexander (Minister of State, Cabinet Office). 189 Compare the more extensive list of the Joint Committee on Human Rights, Scrutiny of Bills and Draft Bills (2002-03 HC

1005) para 3.31.

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an emergency. Furthermore, without such mention, it is difficult to see how the claim that the Bill is compatible with the European Convention on Human Rights190 is sustainable, since powers to breach the Convention are granted. It might also be useful to mention the requirements of international humanitarian law.

168. We conclude that the intention of the draft legislation would be clearer if clause 21(4) included among the prohibitions on the making of regulations a prohibition on regulations which would breach any of the Convention rights from which it is not possible to derogate or any provision in the Geneva Conventions of 1949 and Protocols thereto of 1977.

Protections for other derogable human rights not currently mentioned in the Bill

169. In a genuine emergency it is accepted that some human rights which are normally respected may have to be curtailed or suspended. Since they are not among the rights listed in clause 21(4) or the rights protected from derogation under the ECHR, the following rights are most at risk from being adversely affected by regulations made under the draft Bill:

i) freedom from detention without trial (Article 5),

ii) respect for private and family life and the home (Article 8),

iii) freedom of expression (Article 10),

iv) freedom of assembly (Article 11) or

v) peaceful enjoyment of possessions (Article 1, Protocol No 1).

170. We have not received strong evidence that these liberties should enjoy any additional form of protection under the Bill. Dr Eric Metcalfe of JUSTICE did confirm that historically the rights which have been most vulnerable in emergencies were due process, liberty, freedom of assembly and freedom of speech.191 Much would depend on what regulations were made under Part 2 of the Bill. In response to questions about offences against these regulations, Ms Chakrabarti of Liberty said:

“All of these …tie back to an holistic scheme where we would like the definition of ‘emergency’ to be more limited, there to be greater scrutiny and the courts to have full jurisdiction…”.192

171. Probably the strongest case could be made for rights to free expression. It is arguable that special protection should be given to the protection of means of communication of public information. So, the powers of the authorities to interfere with media such as newspapers should be subject to special restraint. This idea would follow other legislation, such as the Contempt of Court Act 1981, section 10 and the Police and Criminal Evidence Act 1984 section 13. However, no arguments were put to this effect.

190 Consultation Document, chapter 5, para 30, p 30. Joint Committee on Human Rights (HL Paper 149/HC 1005) para 3.35. 191 Q 223, Dr Metcalfe (JUSTICE). 192 Q 232, Ms Chakrabarti (Liberty).

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Derogation and the Bill

172. Questions arise concerning the relationship between the ability to declare an emergency on a regional basis and the wording of Article 15 of the European Convention on Human Rights, which envisages an emergency threatening the life of “the nation”. The onus is on the state concerned to establish that there is a public emergency threatening the life of the nation and that the derogation is strictly required by the exigencies of the situation. Of course, not every invocation of the Civil Contingencies Bill will require resort to a derogation under Article 15. Nor is it a requirement of Article 15 that the emergency and emergency powers must be national – most derogations since 1951 within the United Kingdom have been confined to the region of Northern Ireland. Nevertheless, the effect must be that a different range of regulations is possible when a localised crisis affects the national position and a localised crisis which does not. This could be reflected in the Bill to avoid error and to ensure due consideration.

Interference with property rights without compensation

173. The draft Bill provides for the requisition, confiscation or destruction of property, animal life or plant life with or without compensation (clause 21(3)(b)). Witnesses told us there was no reason why compensation should not be paid,193 that to leave it in doubt would be problematic,194 or that they could not think of a situation where the Government would not want to pay compensation.195 The police view was:

“…if I were a police constable who had to requisition property or state that property would be destroyed, it would make my life a lot easier if I could say to the person who owned it, ‘You will be compensated for it.’”.196

174. The need for compensation arises, unless excused in very exceptional circumstances, under article 1 of Protocol 1 of the European Convention. 197 The Government has pointed out that compensation is not always appropriate in cases where property is covered by insurance or the owner’s negligence or malicious action is a factor in its destruction.198 But clause 21(3)(b) is not confined to these instances. In any event, this invocation of private insurance should trigger a duty on government to ensure that suitable cover is available, on the precedents of the Pool Re (commercial property cover against terrorism) and Troika (commercial airline cover against terrorism) insurance schemes. The Government also pleads that it has not in this respect changed the wording from the 1920 Act.199 Yet, the 1920 Act was passed before the presumption in favour of compensation was accorded by the Human Rights Act.

175. The Minister told us:

193 Q 226, Ms Chakrabarti (Liberty). 194 Q 109, Ms Lowton (Camden Borough Council). 195 Q 121, Mr Davies (Leeds City Council). 196 Q 63, Mr Goldsmith (ACPO). See also Memorandum from Oxfordshire County Council, Ev 254, para18. 197 Following the cases of the Holy Monasteries v Greece Application no. 13092/87 ; 13984/88, Ser A 301A, and Loizidou v

Turkey, App.no. 25781/94, 2001-IV it is difficult to envisage such a taking under standing law as opposed to the heat of an event being held to be legitimate.

198 Q 252, Mr Alexander (Minister of State, Cabinet Office). 199 Question for the Bill Team, Appendix 9, question 38.

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“Government should not be in a position… to say that there should be effectively a blank cheque from the public purse in all circumstances”.200

“it is absolutely and categorically not the case that there are no circumstances in which the Government would offer compensation under the Bill”.201

176. We conclude that if property is to be taken without compensation, then it should be specified that (i) the taking is still in compliance with Article 1 of Protocol 1 of the European Convention and (ii) that steps are taken to ensure that insurance is available for any loss.

Creation of criminal offences

177. Clause 21(3)(i) of the Bill provides that regulations made under it may create criminal offences for non-compliance with those regulations or obstruction of enforcement officers. Clause 21(4)(c) prohibits the creation of other offences by regulation, while clause 21(4)(d) limits the punishments for offences to a scale 5 fine or up to three months imprisonment. As already mentioned, the created offences must be tried before normal first instance courts. No evidence has been presented against such a power, save that it be noted that the offence may be tried on indictment or summary process instead of summarily only, as under the 1920 Act.202

200 Q 252, Mr Alexander (Minister of State, Cabinet Office). 201 Ibid. 202 Memorandum from D Bonner, Ev 178, para13.

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5 Constitutional Matters 178. In this chapter we consider some of the constitutional issues which arise from such emergency powers legislation and draw attention to matters which both Houses may wish to consider when a real Bill is brought forward. In this we have been greatly assisted by the evidence received from the Constitution Committee203 and the Delegated Powers and Regulatory Reform Committee.204

179. Despite the severe challenges which have been faced in the 20th and the 21st centuries, including emergent threats of international terrorism, rogue and failed states, environmental change and other concerns identified in the Consultation Document, it should remain a constant that laws dealing with crises, disasters and threats must be focused upon resilience and restoration. This objective applies to the principles of constitutionalism just as it applies to the lives of people affected or the physical environment.

180. The rule of law demands that the courts and Parliament are not impotent in response to the might of executive power in an emergency. One threat to judicial intervention, the impact of clause 25, has already been discussed in chapter 3 (from paragraph 144). It is important to ensure that in other respects an effective check is kept on how powers under Part 2 are constructed and executed. This scrutiny function is a matter not only for the courts but also for Parliament. The main controversies relating to democratic and legal accountability which ought to be taken into account when examining such legislation are as follows:

• Pre-enforcement review

• The mechanisms for Parliamentary review

• Duration and expiry (“Sunset clauses”)

• The mechanisms for democratic accountability of the tiers of authority under the Bill

• The mechanisms for legal review.

Possible constitutional issues

181. The list of possible constitutional issues raised by the draft Bill is extensive. They include:

i) The extent to which it is necessary for Ministers to be given powers to amend any previous Acts of Parliament.

ii) Whether it is desirable to give such extensive powers to Ministers in an enabling Bill without Parliament either approving or in some cases seeing the draft regulations containing all the actual detail which would be made under the Bill.

203 Memorandum from the House of Lords Select Committee on the Constitution, Appendix 1. 204 Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform, Appendix 3.

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iii) Whether a Royal proclamation (clause 18) or emergency declaration (clause 19) should be made subject to a substantive vote in Parliament rather than simply notification.205 The Defence Committee noted that the draft Bill gives Parliament no role in approving that declaration.206

iv) Whether provision should be made for expiry and renewal of the powers to ensure continuing parliamentary review of the powers.

v) Whether Parliament should be able to amend secondary legislation which will be given the force of Acts of Parliament (primary legislation).

vi) Whether Ministers should be required to give a human rights statement under section 19 of the Human Rights Act 1998 in respect of regulations which will have the force of Acts of Parliament.

vii) Whether the various time limits for parliamentary consideration of regulations made under the draft Bill ensure sufficient parliamentary scrutiny.

viii) Whether affirmative or negative parliamentary procedure should apply to regulations made under Parts 1 and 2 of the draft Bill.

ix) Whether the new power for a Minister to make regulations without the normal and notional involvement of the Head of State requires additional safeguards.

x) Whether it is necessary or desirable for the Government to be given sweeping powers in one Act to deal with emergencies or whether it would be better to have separate pieces of legislation covering different sectors of the economy and different types of emergency.

xi) Whether a new statute on emergency powers should also draw in and update legislation on the use of the armed forces in such emergencies.

xii) Whether officials in charge of emergency situations at a regional level will be subject to sufficient democratic accountability.

182. We have not received evidence on all of these points and so do not canvass them in detail, though we are aware that they will raise interest when the Bill is debated in both Houses. Our views on some of these issues are set out below. We have already dealt, in chapter 4, with the proposed constitutional novelty of treating regulations made under the Bill as Acts of Parliament for the purposes of the Human Rights Act 1998.

Power to amend all Acts of Parliament

183. The proposed power in clause 21(3)(j) to disapply or modify any Act of Parliament is very wide. In the wrong hands, it could be used to remove all past legislation which makes up the statutory patchwork of the British constitution. For these purposes, the fundamental parts of constitutional law could be taken to include the following statutes:

205 Memorandum from D Bonner, Ev 178, para10. 206 Seventh Report 2003-03 HC 557, para 73.

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• Magna Carta 1297

• Bill of Rights 1688

• Crown and Parliament Recognition Act 1689

• Act of Settlement 1700

• Union with Scotland Act 1707

• Union with Ireland Act 1800

• Parliament Acts 1911-49

• Life Peerages Act 1958

• Emergency Powers Act 1964

• European Communities Act 1972

• House of Commons Disqualification Act 1975

• Ministerial and Other Salaries Act 1975

• British Nationality Act 1981

• Supreme Court Act 1981

• Representation of the People Act 1983

• Government of Wales Act 1998

• Human Rights Act 1998

• Northern Ireland Act 1998

• Scotland Act 1998

• House of Lords Act 1999

• Civil Contingencies Act [2004]

184. It has been suggested207 that the list might also include the Police and Criminal Evidence Act 1984 (plus equivalents elsewhere), but that provision is far more related to legitimate emergency purposes.

185. When asked about this, the Minister argued that it is not possible to define a category of constitutional legislation which ought to be protected by amendment.208 He did not specifically address the issue of whether certain named Acts of Parliament should be

207 Memorandum from Prof Ian Leigh, Ev 231. 208 Q 253, Mr Alexander (Minister of State, Cabinet Office).

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excluded from the possibility of amendment or repeal under the draft Bill, but later wrote to tell us that he would be seeking legal advice.209

186. We accept that there may be circumstances in which it is necessary for amendments to be made to existing Acts of Parliament in an emergency and the normal process of a new Bill will not be sufficiently quick. We also accept that to list all the statutes to which this might apply would be excessive. We therefore prefer the approach of excluding certain statutes from this power to modify or disapply. When the Bill is debated in each House there may be amendments proposing that other key Acts of Parliament be added to the list. The onus will then be on the Government to show why such Acts should be subject to amendment by regulation under the Bill.

187. We recommend that the Acts of Parliament listed in paragraph 183 above should appear on the face of the Bill as not being liable to modification or disapplication under clause 21(3)(j).

Parliamentary approval of declaration of emergency

188. The Defence Committee has pointed out that the draft Bill gives Parliament no role in endorsing the declaration of emergency. It is easy to argue the case for not requiring any specific parliamentary approval: historically such actions have been taken by the Crown and Government without the need for formal parliamentary approval; the circumstances of the emergency may make it impossible for Parliament to meet; and, in reality, no Government would be able to sustain such a declaration of emergency if it did not command a majority in the House of Commons.

189. On the other hand, specific parliamentary endorsement for such a declaration would give democratic legitimacy to a whole range of measures which could not be examined in detail, would give confidence to those carrying them out that they were properly authorised and would assure the courts that Ministers were not acting beyond their political authority. It would also overcome the problem that, theoretically, it would be possible under the Bill for an emergency to be declared and successive sets of regulations to be made every seven days without any meeting of Parliament. We return to this subject in paragraph 203 below in the context of a declaration of emergency made without the consent of the Privy Council under clause 19.

Regulations under Part 1

190. Clause 2 of the Bill allows a Minister to make regulations about the extent of the duties imposed on Category 1 Responders and the manner in which they are to be performed. Those regulations will be published with the Bill and subject to the negative procedure. Clause 7 however authorises a Minister to amend or issue new regulations orally or in writing if the urgency of the situation so demands. There is no requirement to inform Parliament, and we believe there should be.

191. Similarly, clause 12 requires a Minister to consult the National Assembly for Wales before making regulations under clause 2, or taking other actions specified in clauses

209 Further Letter from Douglas Alexander MP, Minister of State, Cabinet Office, Ev 124.

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2,3,4,5,7,9 or 11. But clause 12(3) allows a Minister to ignore this requirement if the matter is urgent.

192. We recommend that, where because of urgency the Minister issues directions, in substitution for regulations, under clause 7(2) or regulations under clause 12(2) without consulting the National Assembly for Wales, such directions or regulations should expire after 21 days. This would allow the Minister time to make, if necessary, regulations which meet the normal requirements of scrutiny by Parliament and for consultation with the National Assembly for Wales.

Publication of emergency regulations

193. Those regulations to be issued under Part 1 are likely to be made available to potentially affected agencies and authorities, especially as their cooperation is needed in the process of implementation. But those under Part 2 may be kept secret. The Cabinet Office states that the regulations that would be possible under Part 2 of the Bill have “a wider scope than existing legislation”.210 As a result, Parliament is being asked to legislate without being told the possible consequences of that action. The lack of available information on the contingencies envisaged for forms of attack with weapons of mass destruction means that, if ever needed, there will be both an absence of considered debate by Parliament and a lack of preparedness on the part of agencies affected.211 One might compare the position in the USA, where responsibilities for 12 Emergency Support Functions under the Federal Response Plan have been prepared and published.212

194. We understand that the reasons for not publishing the draft regulations under the Emergency Powers Act are as follows:213

“…the draft regulations are subject to frequent change”

“‘standard’ … regulations would not necessarily offer a clear indication of the content of future emergency regulations”

“Wide access to draft emergency regulations could highlight both potential weaknesses or targets and likely counter-measures”

195. If the frequency with which the regulations are changed is said to be only once every two years, there seems little problem in keeping the current set of regulations in the public domain. The regulations dealing with industrial emergencies under emergency powers legislation have been more or less the same for many years. Publication in advance could allow a dialogue which ensures that any weaknesses are reduced, and it could ensure training and better enforcement when invocation comes. It would be wrong on constitutional grounds to spring upon citizens new catalogues of complex regulations on for example chemical and biological attack without due prior consideration and discussion.

196. We recommend that draft regulations under Part 2 and guidance to them be published from time to time. The drafts should be published not just for the purposes

210 Questions for the Bill Team, Appendix 9, question 22. 211 See New Zealand Law Commission, Report No. 22, Final Report on Emergencies, (Wellington, 1991) para 6.79. 212 The relevant legislation is the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 USC s.5121). 213 Questions for the Bill Team, Appendix 9, question 23.

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of Parliamentary deliberation on the legislation but in the interests of open government.

Effects of making regulations which have the legal status of Acts of Parliament

197. If regulations made under Part 2 of the Bill are in effect to have the force of primary legislation, there is a case for applying to them some of the procedures which apply to the parliamentary passage of Acts of Parliament. The requirement in section 19 of the Human Rights Act 1998 for a Minister to make a statement of compatibility in regard to primary legislation does not apply to secondary legislation. But in the case of the Civil Contingencies Bill, many regulations may be far wider in terms of their impact on rights than ordinary primary legislation. There is therefore a case for the section 19 requirement to be applied equally to regulations issued under the Civil Contingencies Bill.

198. Under clause 24, regulations lapse unless approved by Parliament within seven days of their being laid by the Secretary of State. But Parliament can then only accept or reject. Under the original Emergency Powers Act 1920, section 2(4), a regulation can be added to, altered or revoked by resolution, which offers a much fuller level of parliamentary scrutiny.214 In the limited time available for parliamentary scrutiny of such regulations, it is quite possible that defects will emerge – or indeed that the Government will identify a need for further change. The alternative of withdrawal of the original regulation and the making of another might take longer. There is therefore a case for regulations made under Part 2 of the Bill to be subject to amendment in Parliament in the same way as applied to those under the Emergency Powers Act 1920. This may also require some amendment to section 27 and the Statutory Instruments Act 1946.215

199. We recommend that regulations made under Part 2 of the Bill should be subject to the same safeguards as primary legislation in that Ministers should be required to make a human rights statement under section 19 of the Human Rights Act 1998 and that the individual regulations should be subject to textual amendment in Parliament.

Expiry and renewal

200. One feature of some past emergency legislation is that it lapses after a set time unless renewed. Thus the Prevention of Terrorism Acts 1974-1989 were subject to an annual debate in Parliament prior to a decision on renewal. Parts of the Anti-terrorism, Crime and Security Act 2001 are subject to an expiry clause and renewal (section 29). Disciplinary powers for the armed forces have for a long time been enacted in an Armed Forces Act which lapses after five years and is replaced by a new Act, passed after scrutiny by a Select Committee. One witness put the case for these powers in Part 2 to be subject to renewal every five or ten years and to expire completely after 30 years.216 We understand that this could be achieved by including in the Bill a provision that the powers will lapse after five

214 Memorandum from D Bonner, Ev 178, para11; See also Memorandum from the House of Lords Select Committee on the

Constitution, Appendix 1, para 13. 215 Memorandum from G Morris, Ev 241, p.2. 216 Memorandum from David Bonner, Ev 178, para 18.

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years unless renewed for a further five years by an order made under the affirmative procedure – which would provide an opportunity for a Select Committee to review the operation of the Act and recommend any changes before the powers are renewed.

201. We recommend that the powers in Part 2 should expire every five years from Royal Assent unless renewed beforehand by an order subject to the affirmative procedure and laid by a Secretary of State following a report by a Select Committee on the operation of the Act.

202. On the specific issue of renewal of regulations made under the Bill, we endorse the evidence we have received from the Delegated Powers and Regulatory Reform Committee:

“Under clause 23(1) and (2) proclamations or orders declaring the emergency lapse after 30 days. Any regulations lapse with the proclamation or order, though a new proclamation or order can be made, and new regulations can be made under it. But clause 23(4) provides an exception. Where, before the lapse of a proclamation or order, a fresh one is made about the same emergency (so that there is no break in continuity), the regulations made under the first proclamation or order continue in force (and do not lapse). If this provision remains in the bill, we will consider whether there should be a time limit for regulations which continue under clause 23(4), whereby the regulations would lapse unless specifically renewed”.217

The exclusion of the Crown under clause 19

203. An unusual feature of the draft Bill is that the normal procedure for making secondary legislation through the Privy Council and with the participation of the Monarch can be avoided if necessary. If the Secretary of State is satisfied that it would not be possible to arrange for a proclamation of emergency without delay, then a declaration may be made on his or her own authority. The question arises whether this provision is necessary and whether, if it is, it creates serious risks to the constitution which ought to be further guarded against.

204. As regards necessity, it should be noted that the Crown is itself a very resilient institution. The resilience of the office of the Crown is vital to the operation of Part 2 of the Civil Contingencies Bill. The Crown is relied upon to deal with:

• the proclamations of emergencies (cl.18)

• the making of Orders in Council (clause 20)

• the requiring of the meeting of Parliament (clause 24)

• and the appointment of Secretaries of State and Ministers of the Crown (passim).

205. It follows that it is important to ensure that in any proclaimed or declared emergency, the existence of the Crown in person is assured and that the exercise of Crown powers remains feasible. However, in the light of the rules of succession and regency,218 the

217 Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform, Appendix 3. 218 Note by Professor Clive Walker, Specialist Adviser to the Committee – The Resilience of the Crown, Appendix 6.

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Crown would appear to enjoy a high degree of resilience. It should be understood to be a very rare possibility for clause 19 to be invoked.219 In addition, it should be noted that the sanction of the Privy Council is purely formal and the reality is that accountability rests with the Government in either scenario.220

206. It is some time since judicial review was prevented by adopting subjective wording for the grant of powers.221 But the subjective wording in clauses 18 and 19 is striking. A requirement of reasonableness would give a signal that there must be proof of objective and provable evidence of an emergency and of the necessity for regulations (and, in the case of the Secretary of State, of the dangers of delay).222 The Constitution Committee has pointed out that:

“in law there would appear to be no difference between regulations made by Order in Council (a purely formal procedure) and regulations made by the Secretary of State. In each case, the regulations would be, or would be made by, statutory instruments and would be subject to the Statutory Instruments Act 1946”.223

207. We refer in paragraphs 188 and 189 to the desirability of the proclamation of an emergency being subject to endorsement by Parliament at the earliest opportunity. This measure of democratic legitimacy would help to overcome several of the difficulties with the Bill – including the apparent exclusion of both the courts and the Crown. We attach importance to this because we believe that in an emergency regulations made in the customary way by Order in Council will carry greater public credibility than those made in an unusual way.

208. In relation to the ability of a Secretary of State to declare an emergency on his or her own, we consider there should be two additional safeguards:

• the wording of clause 19 should be altered by adding the condition of reasonableness to the finding of satisfaction of the Secretary of State.

• A declaration under clause 19 should be subject to confirmation by Parliament within seven days, as under clause 24.

219 Some say that there is no conceivable need: Memorandum from Oxfordshire County Council, Ev 254, paras. 59-60. 220 Memorandum from House of Lords Select Committee on the Constitution, Appendix 1, para 9. 221 See Nakkuda Ali v MF de S Jayaratne [1951] AC 66; Attorney-General of Saint Christopher, Nevis and Anguilla v Reynolds

[1980] AC 637. 222 Memorandum from D Bonner, Ev 178, para 9. 223 Memorandum from the House of Lords Select Committee on the Constitution, Appendix 1.

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6 Resource Implications Background

209. This chapter examines the financial and manpower consequences of the draft Bill. The Government’s main consideration of the effects on resources is set out at chapters 2 and 3 of the Consultation Document, in the two Partial Regulatory Impact Assessments published with the draft Bill224 and in the explanatory note on the financial and public service manpower effects of the Bill.225

210. Since 1998 there has been a requirement that all Government policy proposals which affect business, charities or voluntary bodies must be subjected to a Regulatory Impact Assessment, which should identify the impact of policy options in terms of the costs, benefits and risks of the proposals226 to, in this case, improve emergency resilience. The analyses of costs are critical in informing external consultees about the consequences for them of proposals, and hence are central to the policy making process.227 As well as analysing the effects of the Government’s proposals on the private sector, the guidance reminds officials “to consider the costs and benefits to ... local ... government”, including the costs of complying with any requirements.228

211. The Cabinet Office published two Partial Regulatory Impact Assessments alongside the draft Bill. The first reviewed the effects of the local contingency planning provisions in Part 1; the second addressed issues arising from use of the emergency powers in Part 2.

Local contingency planning: costs to business, voluntary organisations and charities

212. In examining how to meet its policy objective – to create a modern framework for contingency planning and response – the Government identified three options when framing the provisions at Part 1 of the Bill:

• option 1 - continuation of the current arrangements;

• option 2 - the imposition of a duty to carry out the full spectrum of civil protection activities (assessment, prevention, planning for emergency response and business continuity, response and recovery) on Category 1 Responders and a more limited duty to share information and co-operate in maintaining preparedness on Category 2 Responders;229 and

• option 3 - two duties would be defined on broadly the same basis as in the option 2 but most of the organisations in Category 2 in the second option – for example, utility

224 Cm 5843. 225 Ibid, note 58. 226 Regulatory Impact Unit and Cabinet Office (2003) Better Policy Making: A Guide to Regulatory Impact Assessment, para

1.1-1.2 at http://www.cabinet-office.gov.uk/regulation/scrutiny/ria-guidance.pdf. 227 Ibid, para 3.6. 228 Ibid, para 3.11. 229 Partial Regulatory Impact Assessment (Local Responders) paras 28-30.

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companies – would be moved into Category 1 and thus would have to meet the full duty and, in addition, groups such as voluntary organisations and charities would be brought into Category 2 and so would have to meet the co-operator duty.230

213. The Government concluded that the first option would not meet the policy objective of establishing resilience systematically.231 The third option, while it would meet the objective, would be at the cost “of new statutory burdens on a wider range of organisations, including a greater number of private businesses, charities and voluntary organisations … with associated costs”.232 The second option provides, in the Government’s view, the middle way of achieving the policy, while the additional costs to Category 1 bodies (local authorities and public bodies) “will not be great” because the organisations subject to the new requirements in the draft Bill “are already engaged in this activity”.233

214. The Partial Regulatory Impact Assessment provides an evaluation of the additional costs the second and third options would place on business, voluntary organisations and charities.

• The additional costs arising from the second option are estimated at between £850,000 and £1,450,000234 (rounded). The explanation for this modest estimate is that (under option 2) only a small number of organisations will have to meet the duty; those to which it applies will be placed in Category 2; the work required to meet the co-operator duty in Category 2 is not onerous (e.g. requests for information, attendance at meetings and infrequent, short exercises); and some businesses are already carrying out the work.235

• The figures offered for option 3 are very tentative: double the costs for those organisations placed in Category 1 rather than Category 2; and around £5,650 – £6,250 (rounded) for organisations in Category 2.236

• The Regulatory Impact Assessment did not attempt to quantify the difference in benefits between options 2 and 3.

215. The second option is embodied in the draft Bill.

216. Since the publication of the draft Bill, the businesses responding to the consultation exercise have expressed reservations about the Government’s figures. United Utilities, who under the provisions at Part 1 of the Bill would be a Category 2 Responder, said that their expenditure on emergency planning responsibilities was already nearly double the amount quoted in the Regulatory Impact Assessment, even before allowing for any uplift in activity as a result of the Bill, and that the Assessment, although not an order of magnitude wrong, was two or three times too small.237 BT – another Category 2 Responder – said it

230 Ibid, para 33. 231 Ibid, para 75. 232 Ibid, para 78. 233 Ibid, para 76. 234 Ibid, para 65. 235 Ibid, paras 46, 49 and 59. 236 Ibid, para 74. 237 Q 346, Mr Miller (United Utilities). See also Memorandum from United Utilities, Ev 147, question 6.

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was not in a position to confirm that the appraisal of costs was adequate or accurate, as a robust assessment would rest on an understanding of features which were, at present, either vaguely defined or not defined at all. But BT did point out that the estimate of costs failed to consider overhead and operating expenditures, capital costs, and opportunity costs.238 BT also said that the proposals could involve “moving down to a greater level of detail and it depends how that is managed and rolled out across the country”. 239 British Energy – also a possible Category 2 Responder – was not clear how the costs of ongoing training, exercises and learning from real and exercise events or regulatory requirements would be accommodated within existing cost bases, or that they had been included in the assessment.240 CE Electric UK – another possible Category 2 Responder – considered that the costs identified in the assessment had been grossly underestimated and that the burden imposed by the new statutory duties would depend on the degree of preparation already carried out by the local authority or other agency, which varied markedly from one to another.241

217. In our view, the debate about civil contingency planning can only be pursued effectively if the costs and benefits are addressed comprehensively. Although the Minister in charge of the Bill suggested that the Regulatory Impact Assessment showed that the burden on the private sector was small and that the benefits were potentially very large,242 we found little to assist us in the Partial Regulatory Impact Assessment (Local Responders) as it had been prepared before the secondary legislation was ready, omitted costs and lacked evidence to support the figures quoted. We do not believe that the Partial Regulatory Impact Assessment provides a sound basis to inform policy decisions.

218. We therefore recommend that the Regulatory Impact Assessment (Local Responders) be redrafted in order to address the concerns voiced by business and to ensure that it meets the rigorous requirements of Better Policy Making: A Guide to Regulatory Impact Assessment. It needs to set out in much more detail, with supporting evidence, the costs and benefits of the options and to review the options comprehensively in the light of the regulations to Part 1, which are now due to published with the Bill.243

219. We deal below with the provision of additional resources for civil contingency planning for the private, voluntary and public sectors.

Local contingency planning: costs to local authorities

220. Neither the Partial Regulatory Impact Assessment (Local Responders) nor the Consultation Document and explanatory notes provide a detailed or systematic analysis of the costs to local authorities of implementing the proposals in the Bill. Instead, the

238 Memorandum from BT, Ev 134, question 6. 239 Q 350, Mr Turner (British Telecom). 240 Memorandum from British Energy, Ev 192, question 6. 241 Memorandum from CE Electric UK, Ev 196, question 6. 242 Q 278, Mr Alexander (Minister of State, Cabinet Office). 243 Q 237, Mr Alexander (Minister of State, Cabinet Office).

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Consultation Document lists recent initiatives which the Government has taken to improve the UK’s resilience.244

221. The Local Government Association’s (LGA) comment on the assertion that “local authorities have seen specific Civil Defence grant rise by more than a third over the last two years to £19 million for 2002-03” was that this level of grant was 50 per cent, in real terms, of what it had been ten years ago.245 The LGA produced a research briefing setting out the costs of emergency planning to local authorities.246 They estimate that local authorities are currently spending at least £36 million annually on emergency planning, which means that they are investing £17 million of their own resources over and above the £19 million from the Government.247 The LGA’s figures have not been challenged by the Government, and we consider that they provide a reasonable initial indication of the annual costs of the present service in England and Wales.

222. We recommend that the definitive version of the Bill should contain, in the explanatory notes, a detailed analysis of the current and projected costs of providing the emergency planning service.

223. One of the questions included in the Consultation Document was whether the level of funding to support the Bill was sufficient.248 An overwhelming majority of local authorities indicated that the current level of funding was inadequate. The LGA pointed out that the Bill will put extra duties on local government.249 Durham County Council reflected the views of many when they told us that there were completely new activities required by the Bill, including warning the public; promoting business continuity management in the community; taking action to prevent emergencies from occurring; participation in the new local resilience forums; participation in the initiatives arising from the new resilience forums; undertaking activities as directed by central government; and providing ongoing information to the public.250 Devon County Council, in their written response to Question 8 of the Consultation Document, pointed out that the new definition of an emergency will include, for the first time, the need to plan, and respond to, threats to the environment.251 The LGA contend that the scale of new duties proposed in the draft Bill, especially when extended to Shire district councils for the first time, will require a wholesale review of the funding provision.252

224. The Minister in charge of the Bill pointed out that there had been significant resources contributed by central government to civil protection through a range of responders over recent years and very significant increases in the funding had been provided. While he accepted that there is an important discussion to be had on funding, he took the view that the focus of the Bill is the framework for civil protection rather than the funding of civil protection. The Minister said that the way forward on funding was the discussions

244 Consultation Document, pp 13-14. 245 Q 11, Councillor Chalke (Local Government Association). 246 Local Government Association (July 2003) Emergency Planning: A Survey of Top Tier Local Authorities. 247 Q 11, Councillor Chalke (Local Government Association). 248 Consultation Document, Q8. 249 Q 11, Councillor Chalke (Local Government Association). 250 Q 89, Mr Cunningham (Durham County Council). 251 Memorandum from Devon County Council, Ev 203, question 8. 252 Memorandum from the Local Government Association, Ev 1, para 4.1.3.

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currently taking place between local authorities and central government which will find expression in the Spending Review decisions that are reached in SR2004. 253

225. In our view, full consideration of the costs of legislative proposals is, as a general rule, an essential part of pre-legislative scrutiny. We are not satisfied with either the quality of the analysis of the effects of the draft Bill on financial and public service manpower, or with the Government’s conclusions. The Government’s approach seems to be that it is up to others to disprove its belief that current funding levels are sufficient to meet the proposals in the Bill. This approach is particularly problematic with an enabling measure that is largely dependent on draft regulations not available during the consultation process. In our view, it is essential that when enabling bills are subject to pre-legislative scrutiny, the draft primary and secondary legislation should be published simultaneously.

226. We therefore recommend that in future all enabling Bills published in draft should be accompanied by a comprehensive set of draft secondary legislation, to form the basis of an analysis of the financial and public service manpower effects of the proposed legislation. In the case of this Bill we recommend that both Houses only consider it if the explanatory notes published with the Civil Contingencies Bill contain a clear statement of the effects on financial and public service manpower and the explanatory notes address the shortcomings we have identified.

227. When it considered the draft Civil Contingencies Bill in July 2003, the House of Commons Defence Committee was concerned that the level of funding proposed in the Consultation Document was inadequate for the responsibilities envisaged under the Bill and recommended that we examine this issue further.254 The evidence we have received reinforces those concerns. We share the belief that the introduction of new duties on local authorities, in conjunction with national standards and a monitoring process, will almost certainly require a greater level of planning and training than is currently performed by many Responders. Inevitably the implementation of the proposals in a Bill such as the Civil Contingencies Bill will cost money. The key point, however, is that the Government’s consultation process was seriously flawed by the absence of draft regulations, making it impossible for Responders to estimate the costs of the proposals in Part 1 the Bill.

228. In these circumstances we recommend that the Cabinet Office, once it has revised its analysis of costs as suggested above, should publish at the conclusion of the Spending Review 2004 the resources the Government has agreed to implement the Bill fully and effectively.

Local contingency planning: grant funding arrangements

229. The Government proposes that funding for local contingency planning should be moved from a specific grant – Civil Defence Grant – to general grant, currently Revenue Support Grant. Under the proposed framework, funding for local authority civil protection work will be brought into the mainstream. In the view of the Government, direct grant has reinforced the isolation of civil protection planning as a function. The Government points out that both it and the Local Government Association are committed to reducing the

253 Q 284, Mr Alexander (Minister of State, Cabinet Office). 254 Seventh Report of Session 2002-03 (HC 557), para 58.

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amount of ring-fenced and specific grants made to local authorities by streaming all funding through Revenue Support Grant, other than in exceptional circumstances. The Government considers that there are no exceptional reasons why funding for local contingency planning to Category 1 local authorities should not be routed through Revenue Support Grant. It has also said that in addition to being in line with general policy, Revenue Support Grant funding will allow individual authorities to determine how best to allocate their resources to fulfil their responsibilities and to meet their priorities.255

230. The response has been mixed. A substantial number of local authorities support a move to mainstream funding, although with reservations. These reservations mainly relate to concern that funding intended for local contingency planning might be diverted to meet more pressing priorities and thus undermine resilience. The Local Government Association believes that, if Civil Defence Grant is to be phased out, there should be transitional arrangements for emergency planning funding to be ring-fenced or identified as a line in the Environmental, Protective and Cultural Services grant, for, say, 2-3 years, to allow this funding to be fully established in local authority expenditure plans, and to enable the service to measure up to public expectation. If Civil Defence Grant is transferred to the Formula Spending Share (the formula Government uses to work out what a council needs to spend to provide all of its services and thus their level of Revenue Support Grant), resource demand pressures from other services could overwhelm the emergency planning service.256

231. The Minister in charge of the Bill said that the move to Revenue Support Grant was about bringing a greater degree of autonomy to local government and moving away from discrete budgets for discrete areas of work. In relation to civil protection, the Government believes that the proposal would have the merit of ensuring that civil protection is mainstreamed within the thinking of local government as in central government. He said this approach was in line with the policy of the Local Government Association.257 The Minister said, however, that the Government will not remove the specific grant until the new framework is in place. 258

232. We do not wish, in this Report, to join in the debate on the general merits or otherwise of ring-fencing, but we are concerned that contingency planning should be adequately and transparently resourced. Because emergency planning has had a low profile and a history as a discretionary and uneven service, there is a risk that funds may be diverted to other priorities.

233. We therefore recommend, at the very least, that serious consideration be given to the introduction of transitional arrangements, for example a temporary ring-fencing of existing grant levels until such time as the new legislation beds down, appropriate infrastructures are established, and new funding streams identified. Alternatively, the Government should consider delaying the abolition of Civil Defence Grant for at least two years after the new arrangements commence to ensure that planning for and implementation of the provisions at Part 1 of the Bill are adequately resourced.

255 Consultation Document, para 33, p 20. 256 Memorandum from the Local Government Association, Ev 1, para 4.2.1. 257 Q 285, Mr Alexander (Minister of State, Cabinet Office). 258 Q 286, Mr Alexander (Minister of State, Cabinet Office).

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Business continuity management

234. As well as local arrangements for civil protection, the Government intends “to generate a resilience culture at the local level" and to require local authorities to promote business continuity management within their areas. The Government believes that resilience will be further strengthened by extending the civil protection duty beyond emergency planning to address risks to business in the local community generally. The Cabinet Office accepts that promotion of business continuity management elements will constitute an additional cost to local authorities, which they “may seek to defray by charging local businesses who respond to the initiative”.259

235. In commenting on the Bill the Local Government Association questioned the proposal for a mandatory requirement for local authorities to give advice and assistance “to the public”. It considered that the most likely recipients would be commercial business operators rather than members of the general public.260 The Association advised that the potential for charging needed to be explored carefully and guidance given to local authorities on how to set charges in order to recover their costs.

236. A clear definition of what “business continuity management” actually means would have assisted respondents to the consultation exercise on the draft Bill. We assume it includes advice on technology recovery, disaster recovery, risk management, crisis management, as well as advice to organisations on increasing resilience to disruption, interruption or loss. We endorse the principle that the promotion of business continuity management should be encouraged. But the consultation documents do not spell out what the Government proposes and whether other mechanisms have been examined. Neither the type and scope of the business continuity management service proposed nor the costs of setting up the service, operating it, or the level of charges have been made clear.

237. We recommend that the principal elements of the proposed business continuity management service be set out in detail in the explanatory notes published with the Civil Contingencies Bill. It should include a business plan for the operation of the service in a typical local authority.

Emergency powers

238. The consultation documents published by the Cabinet Office include a Partial Regulatory Impact Assessment of the emergency powers at Part 2 of the draft Bill.261 The Government takes the view that, as emergency regulations can be used to do anything that might be done by enactment or Royal Prerogative, it is not possible to be specific “at this stage” about the potential regulatory impact if they were used. The regulations may affect businesses, charities and the voluntary sector; but their nature and coverage would depend entirely upon the nature and scale of the emergency and the response and recovery strategy adopted. The Government states that the powers will only ever be used in extreme circumstances where any costs will be justified by the need to respond most effectively to threats to public safety and welfare. The proposals in the Bill will allow the powers to be used on a much more targeted and proportional basis than the existing legislation, which

259 Consultation Document para 23 on page 19 and Partial Regulatory Impact Assessment (Local Responders) para 57. 260 Memorandum from the Local Government Association, Ev 1, paras 3.3.1-3.3.2. 261 Partial Regulatory Impact Assessment (Emergency Powers).

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will mean only those organisations which genuinely need to be affected by regulations will be.262

239. We note the qualification “at this stage”. This rather begs the question of whether there will ever be a stage at which the Government plans to be more specific about the potential regulatory impact. We accept that the Government cannot provide a fully fleshed out Regulatory Impact Assessment, but we do believe it could – and should – revise the present text to include, for example, case studies. Whilst these will not be comprehensive, they should show where resources flow, where costs fall and who controls the purse strings.

240. We recommend that the Government produces a revised and expanded Regulatory Impact Assessment of the emergency powers at Part 2 of the draft Bill.

Bellwin scheme

241. The Bellwin Scheme is based on a statutory provision at section 155 of the Local Government and Housing Act 1989, and gives Ministers discretion to reimburse local authorities for immediate action to safeguard life and property or to prevent suffering or severe inconvenience in their area following an emergency or disaster. A review of the Bellwin Scheme was conducted in 2001, following which the Government concluded that a change to the statutory basis of the Scheme would not be appropriate.263

242. In the view of the Government the Civil Contingencies Bill will represent a “thorough revision of general emergency related legislation [and] will result in a comprehensive legislative framework appropriate for the twenty-first century”.264 The Committee is therefore surprised that there is not a single reference in the consultation documents to the Bellwin scheme, which is a pillar of the emergency framework in England and Wales and which had been reviewed only two years ago.

243. While the Minister in charge of the Bill told us that the Bellwin scheme was retained by agreement with the Local Government Association,265 during our consideration of the draft Bill representatives of local authorities expressed concern to us about the operation of the scheme. The “Bellwin” process was described as “a very discretionary and very bureaucratic process”, and the expenditure threshold was said to be too high. It was suggested that an alternative mechanism – a reserve contingency fund – would give local Responders the confidence to make financial decisions during emergencies that were not going to enfeeble their ability to provide other services.266

244. We are not in a position to give a considered view on the strengths and weaknesses of the Bellwin scheme, or possible alternative arrangements. But we would recommend that the Government, when it comes to finalise the Bill and its supporting documentation, explains the part which the Bellwin scheme plays in resilience and how it fits within the new framework.

262 Partial Regulatory Impact Assessment (Emergency Powers) paras 6 and 7. 263 Questions for the Bill Team, Appendix 9, question 47. 264 Consultation Document, p 41. 265 Q 288, Mr Alexander (Minister of State, Cabinet Office). 266 Q 108, Mr Cunningham (Durham County Council).

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7 Audit and Management Audit

245. In this chapter we consider the mechanisms for assessment of performance, the role of the lead coordinator in declared states of emergency, and the provision of advice to contingency planners.

246. The Government believes that the certainty offered by the new local contingency framework will provide the basis for robust performance management of civil protection activity to ensure operational effectiveness and financial efficiency. It has considered establishing a new mechanism for performance management, possibly through an inspectorate, but believes that the use of existing mechanisms will achieve its aims of ensuring consistency of performance and bringing civil protection into the mainstream.267 The new framework will feed into established processes through bodies such as the Audit Commission, the emergency services inspectorates, and the utility regulators.

247. In common with other areas of policy, the Government believes the means are already in place to allow the Minister to monitor performance and take effective action in the event of poor performance or non-compliance.268 The Local Government Association is satisfied that joint preparedness can be tested and audited. It cited as an example the Crime and Disorder Reduction Partnerships, which are based on obligations placed jointly in two-tier areas, on the county council, the district council and the chief officer of police. The Association believe that the arrangements for audit and inspection generally work well.269

248. The Association of Chief Police Officers took a different view. They argued that there would be benefit in a separate inspectorate for emergency planning. Their experience of working with Crime and Disorder Reduction Partnerships suggested that multi-agency performance measures were both difficult to create and had limitations in holding organisations to account. They believe something as definable and containable as emergency planning could justify a very small inspectorate.270

249. We share the view of the Police, and are attracted by the concept of a separate, dedicated civil contingencies inspectorate. It would be able to ensure that civil contingency inspection had a high profile and that specialised expertise was developed to examine civil contingencies and the joint working arrangements which will be needed to underpin it.

250. Because of the importance of ensuring public confidence in the system, we recommend that the Cabinet Office examines the feasibility of a dedicated inspectorate to oversee performance management of civil protection activity, to ensure operational effectiveness and financial efficiency. Such a dedicated inspectorate might be based within a Civil Contingencies Agency (see paragraphs 256-260).

267 Cabinet Office (June 2003) Draft Civil Contingencies Bill: Consultation Document, para 37, p 21. 268 Cabinet Office (2003) Partial Regulatory Impact Assessment (Local Responders), para 69. 269 Q 27, Mr Griffin (Local Government Association). 270 Q 60, Mr Alan Goldsmith (ACPO), and Memorandum from ACPO, Ev 21, question 9.

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Crisis Management

251. Emergencies frequently develop into disasters because of the inadequacies of command and control. Confidence in commanders needs to be established before an incident occurs, and is dependent on a number of qualities, the most important of which is leadership but which include a deep understanding, and ideally experience, of the generic principles of the response to emergencies. The principle of appointment/organisation primacy already has a proven track record in counter terrorist operations where the police may be supported by a variety of departments, organisations or agencies, but it is ultimately the senior police officer who determines the course of action to be taken on the basis of the advice provided by the subject matter experts. Although in these circumstances the term “command and control” is avoided to minimise the sensitivities of the subordinate contributors, they are in effect the functions that the senior police officer fulfils.

252. In its Consultation Document, the Government states that “the identity of the Regional Nominated Coordinator would depend on the nature of the incident, mirroring at regional level the existing Lead Government Department concept.”271 In his evidence, the Minister in charge of the Bill said:

“I am convinced that the approach that the British Government has taken, with lead Government departments identified in core areas of responsibility, is the right way forward for the people of Britain”.272

253. Others disagreed, for example, the Surrey Police, who argue that “recent experience through the fuel crisis and the outbreak of foot and mouth disease has shown it does not work.”273

Lead Government Department

254. We are concerned that the principle of lead government department for coordinating the response to a crisis following the declaration of an emergency will not ensure the best level of leadership under what are likely to be the most extreme and challenging conditions. It is also unlikely to ensure consistency of planning among the broad range of different disciplines. Nor would it allow for a consistent central Government participation in emergency planning exercises. We accept that expertise in the subject matter, whether from departmental Ministers or the heads of agencies/organisations, is an essential component of any response to a crisis, but we doubt if individuals selected for their specialist knowledge have the skills or experience necessary for crisis and consequence management. It is our belief, therefore, that a Regional Nominated Coordinator (or Emergency Coordinator) should be an individual with proven crisis management skills, not an official with expertise in one or other branch of government.

255. This view was shared by local authorities274 and representatives of the “blue light” services.275 We also believe that he or she should be identified in advance, not appointed as

271 Chapter 4, para 18. 272 Q 265, Mr Alexander (Minister of State, Cabinet Office). 273 Memorandum from Surrey Police, Ev 268, para 6(h). 274 Q 110, Mr Cunningham (Durham County Council) and Mr Davies (Leeds City Council). 275 Q 50, Mr Alan Goldsmith (ACPO).

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a crisis is breaking. Ideally, there should be a crisis management capability at every regional office, whose members would be intimately involved with the continuing development of emergency responses, to ensure mutual confidence at all levels. On the declaration of an Emergency, Regional Nominated Coordinators (and Emergency Coordinators) would then be supported, on the one hand, by the subject matter experts from the lead department/agency/organisation and, on the other, by the embedded emergency management experts.

An Advisory Agency

256. In his evidence, the Minister in charge of the Bill firmly rejected the concept of an “Emergencies” super Ministry, along the lines of the Department for Homeland Security in the United States.276 We accept and support his arguments. That said, as in the case of leadership discussed above, we are not convinced that preparedness for events of such potentially catastrophic consequence can be effectively overseen by anything less than an organisation established for that specific purpose. That is in no way to diminish the expertise developed within individual departments in the confrontation of terrorism and other threats to the population, the economy and the environment, or the professionalism demonstrated by those who routinely manage emergencies.

257. What we propose is the formation of a relatively small permanent national Civil Contingencies Agency (CCA), not a department, staffed by people with expertise in the management of crises and their consequences, and perhaps answerable to a body of part time Civil Contingencies Commissioners, who in turn report to the Home Secretary. In addition to fulfilling a management and audit function, the Agency would also be responsible for setting national response standards for Category 1 and 2 Responders. We believe that by having subject matter experts, from the department or organisation within whose sphere of routine responsibility the emergency falls, providing specialist advice to the emergency manager a consistently high level of emergency management would be provided. We also consider that by providing the emergency management function at both National and Regional tier level there will be a high level of operational coherence.

258. In his evidence, the Minister in charge of the Bill described the coordination of the response to the foot and mouth epidemic as “the beginnings of an effective regional response in parts of the United Kingdom”,277 having earlier commented that central Government was able to “draw on the expertise of a range of outside bodies to assist it in that work of central coordination and resilience”.278 In our view, that function could more easily be achieved through a separate Agency, which could include individuals seconded from appropriate fields of emergency expertise (for example, military, logistics, police, CBN,279 etc) for 2/3 year periods – ultimately building up a reserve of men and women who can be pulled in to advise at every level of Government, and to advise on the management and coordination of responses to crises requiring the use of emergency legislation. An equivalent group but with the potential for extended tenure would have responsibility for the management/coordination of response to crises requiring the use of

276 QQ 266-268, Mr Alexander (Minister of State, Cabinet Office) and Mr Hargreaves (Head of Bill Team, Civil Contingencies

Secretariat). 277 Q 272, Mr Alexander (Minister of State, Cabinet Office). 278 Q 265, Mr Alexander (Minister of State, Cabinet Office). 279 Abbreviation for Chemical Biological and Nuclear.

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emergency legislation. It would serve several objectives without cutting across Whitehall boundaries. These could include:

• To measure capacity, set training objectives and operational standards and ensure compliance across all contributing departments, organisations and agencies, including those of central government, to ensure consistency in planning and response capability

• To provide a channel for expert advice to local authorities

• To collate technical, scientific and other information as it becomes available (including intelligence on terrorist techniques) and to consider strategies for dealing with wide area emergencies

• To develop the ability to “horizon scan” to improve levels of anticipation and the planning necessary to cope with the unexpected

• To develop an intimate knowledge of capabilities and skills at Local Government level and among the emergency services, so that any contingency could be dealt with by bringing together those individuals best able to manage the given emergency. This would require the Agency to develop a tactical as well as a strategic capacity

• The Agency would report to Parliament annually (through the Home Secretary), and its reports should be published, as is the case with the Security and Intelligence Committee.

259. The national Civil Contingencies Agency could have representatives based in the Government’s regional offices to advise and support potential Regional Nominated Coordinators. They would bring some focus for what is at present a vague concept of the Regional Tier in crisis planning and management (see chapter 8). They, and the Agency itself, would also provide a link to those organisations which are currently absent from the Bill but who would be involved in the process, namely the military, central government departments, and an array of national bodies and utilities. Such arrangements would be preferable to relying on the senior regional civil servant having responsibility for a role for which s/he was ill-equipped.

260. We therefore recommend that the Government gives careful consideration to the establishment of a Civil Contingencies Agency which, like other Agencies, would have both advisory and supervisory responsibilities.

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8 The Regional Tier Background

261. This chapter examines the Government’s concept of a regional tier to coordinate the response to an emergency over a sufficiently wide area to require the invocation of emergency legislation.

262. There is broad consensus on the need to modernise existing legislation in order to “reflect the move from Cold War civil defence to modern civil protection.”280 It is clear, too, that a key element in the Government’s modernisation strategy is the creation of a regional dimension in the civil protection function. This objective is pursued in Part 2 of the draft Bill.

263. The two main purposes of creating a regional tier are:

• to improve coordination - between the local and regional bodies, at the regional level itself and between the regions and the centre;281

• to enable the Government to proclaim an emergency over a restricted area of the country.

The Bill’s Provisions

264. The draft Bill however fails to meet the objectives summarised above because the provisions relating to the regional tier are contained in Part 2, which deals with crisis response - not crisis planning. More specifically, the Bill creates the role of Regional Nominated Coordinator (RNC) in England, and Emergency Coordinators elsewhere in the UK, to be nominated at the time an emergency is proclaimed. The Government’s Consultation Document says in terms that the regional tier will have a non-statutory role, including “to identify gaps and interdependencies, to assist with the brokering of mutual aid agreements … and to establish a strong cadre of staff familiar with emergency procedures”.282

265. The main thrust of Part 1 of the Bill is to harmonise and integrate the planning and response functions of the local tier. It is an enabling provision which allows the achievement of consistency by means of regulations and guidance issued from the centre. It is clear that the Regional Resilience Forums and the Regional Resilience Teams (RRT) are also intended to provide a planning function, but their omission from Part 1 results in a lack of clarity over their responsibilities in the planning field. A further source of confusion is that, in England, the RRTs are more accurately defined as the ‘regional presence’ of national government, not a part of ‘regional government’ in the sense either of reporting to elected regional assemblies or as a means of devolving power to the regions from the Centre. At the local level, the RRTs could well be regarded as a means of furthering

280 Draft Civil Contingencies Bill Consultation Document, chapter 1, para 2, p 9. 281 Ibid, chapter 4, pp.23-23. 282 Ibid, chapter 4, para 5.

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centralised control over locally elected bodies, while supposedly only having a ‘coordination’ function after an emergency has been proclaimed.

266. Beyond the regional offices of which they are a part, the RRTs also report to the Civil Contingencies Secretariat of the Cabinet Office, the Regional Coordination Unit (RCU) of the Office of the Deputy Prime Minister, as well as ‘other’ lead Government Departments in Whitehall. The regional tier will thus involve interaction between four elements: “the Regional Resilience Unit, the Regional Resilience Forum, the Regional Civil Contingencies Committee and the Regional Nominated Coordinator”.283 Such a complicated chain of command and control is a cause for concern.

267. The Government’s Consultation Document argues that “the regional role in planning has to be clearly defined and well understood by other Responders, particularly at the local and national levels”.284 As noted earlier (in paragraphs 91-102), the Bill does not achieve such clarity. The relationships between the three tiers of response are obscure, potentially undermining the objective of ensuring consistency of approach across all levels of the resilience framework. This uncertainty and complexity was identified in the Defence Select Committee’s report285 and reinforced by other evidence. It will create conflicts of identity between local and national representation, while singularly failing to establish an alternative ‘regional’ culture. The mechanism for the nomination of the Regional Nominated Coordinator is not properly articulated and appears merely to mirror the ‘lead government department’ concept embedded in the national level framework, while many believe that in crisis conditions a proven crisis manager is preferable to a specialist in the discipline most closely connected to it (as outlined in paragraph 254).

Other Concerns

268. There are two other concerns:

• As noted above, the RRTs consist of appointed officials, while local authorities are led by elected representatives of the District or County. The Bill needs to set out the formal relationship between the two, not only in contingency planning (Part 1) but in responding to a local emergency as well as a proclaimed emergency under Part 2.

• The envisaged regional tier will not in all circumstances suit the demands of a particular emergency, or even the contingency planning to cope with it. The Deputy Chief Constable of Lincolnshire summed it up when he said “the regional structure is useful as a mechanism to get people together, to talk together, but it might not necessarily be the best in terms of response”.286 The logic of contingency planning dictates that adjoining areas should coordinate plans for mutual assistance if one or other is overwhelmed. But there are many examples of adjoining County authorities who do not share the same Regional Office. We recognise that the Government’s own administrative arrangements are based on these areas, which also mirror the Army’s Brigade boundaries. But the Bill needs to recognise that a “one size fits all” approach is

283 Memorandum from the South East Regional Resilience Forum, Ev 266, p.1. 284 Chapter 4, p 22. 285 7th Report of Session 2002-03 (HC 557), pp. 12-14. 286 Q 78, Mr Alan Goldsmith (ACPO).

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undesirable and provide for greater flexibility in response arrangements for regional (proclaimed) emergencies.

269. The formalisation of a regional tier of government as part of the UK’s resilience framework is an important initiative and is potentially of great value, not least in allowing for the proclamation of emergency over a smaller area than the nation as a whole, but also in achieving economies of scale between Responders at a time of crisis. It also has the potential to promote consistency in the overall level of civil protection planning. But the structure and responsibilities require further development to avoid the pitfall of creating an unnecessary and unwanted bureaucratic layer that contributes little to the resilience framework. Most importantly, the extent (or otherwise) of the regional tier’s involvement in local contingency planning must be spelled out.

270. We therefore recommend that:

• Part 1 of the Bill should clarify the respective planning responsibilities of the local authorities and the regional tier, and include a statutory duty for civil protection at the regional level.

• The regional tier should be simplified in terms of structure.

• The chain of command and communication between national and regional tiers needs to be clarified, and linked to the proposed Civil Contingencies Agency.

• Part 2 of the Bill should include the flexibility to proclaim emergencies in geographical rather than administrative areas in circumstances which so dictate.

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9 Summary of Recommendations Definition of Emergency

271. The two Parts of the draft Bill serve different purposes and provide for qualitatively different action. We recommend that the Government include, in a sufficiently robust and objective clause, an additional set of criteria which must be satisfied before a declaration of emergency under Part 2 can be made. This would be in addition to the ‘triple lock’ test. (paragraph 28)

272. The current definition of emergency is so wide as to encompass events which are already routinely dealt with by emergency services We concur with the conclusion of the House of Lords Select Committee on the Constitution that the current definition is unduly broad.287 (paragraph 32)

273. We have heard from the Government that the triple lock is reflected in various clauses throughout Part 2, including clauses 17, 18, 19 and 21. We recommend that the triple lock should be explicitly stated in a single or adjoining clauses on the face of the Bill, rather than mentioned in discrete sections. It should be a statutory condition that the triple lock test is applied before a declaration of emergency can be made. (paragraph 37)

274. We conclude that the triple lock mechanism requires significant strengthening if it is to provide an adequate safeguard against misuse. We recommend that the triple lock include a test which measures whether the use of powers is proportionate to the nature of the emergency, as well as providing for geographical proportionality. The term “reasonableness” should be inserted into the triple lock. The “seriousness” test should be made more robust, given that “serious” is not defined anywhere in the Bill. The opening phrase in clause 21(4), “without prejudice to the generality of subsection (1)(a)” should be removed.288 It is confusing and can only undermine what is otherwise the clear intent of clause 21(4). (paragraph 39)

275. We welcome the comment by the Minister in charge of the Bill that the Government is considering putting a more explicit trigger on the face of the Bill. While we acknowledge the concept of a triple lock as an additional threshold, it cannot replace the need for a clear, objective and proportionate definition of an emergency. (paragraph 42)

276. In Part 2, the definition of emergency refers to a serious threat to “welfare”, rather than “human welfare”. We recommend that the term “human welfare” be explicitly incorporated into the definition of emergency in both Parts of the Bill. (paragraph 44)

277. The draft Bill significantly widens the definition of emergency in the Emergency Powers Act 1920; a threat to human welfare constitutes but one of many components, and is not a prerequisite for all eventualities. We recommend that the definition of an emergency is re-drafted to reflect that an emergency is a situation which presents a threat to human welfare. (paragraph 48)

287 Memorandum from the House of Lords Select Committee on the Constitution, Appendix 1. 288 Memorandum from David Bonner, Ev 178, para 15.

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278. Clauses 1(1)(c) and 17(1)(b) extend the definition of an emergency to include an event or situation which presents a threat to political, administrative or economic stability. We have grave reservations about allowing enabling legislation to contain exploitable opportunities that could give the government of the day the power to protect its own existence when there may be no other threat to human welfare. We recommend that this clause should only remain in the Bill if it can be demonstrated that situations occurring under it will also present a threat to human welfare or safety. It should only cover those threats to human welfare caused by disruption to essential services. (paragraph 52)

279. One of the threats to human welfare is identified as one that causes or may cause disruption of educational services. While education is an important service, we can see no reason why a threat to educational services should, of itself, warrant the use of extensive emergency powers. We therefore recommend that educational services should be removed from clauses 1(2)(h) and 17(2)(h). (paragraph 54)

280. As the draft Bill currently reads, the existence of an emergency is judged according to the seriousness of a “threat”, rather than the seriousness of a potential outcome. We recommend that the Bill makes explicit that the test of the existence of an emergency is judged according to the seriousness of its potential or actual consequences to human welfare. (paragraph 57)

281. An emergency is deemed to exist according to whether a threat is “serious”, yet the draft Bill does not provide any explanation of what “serious” is held to mean. We recommend that the Dealing with Disaster definition of a ‘major emergency’ be inserted into the Bill as one definition of the term ‘serious’. (paragraph 62)

282. Under the draft Bill, an emergency can be declared if there is a threat to political, administrative or economic stability. We have heard that the term “stability” is inadequate for creating a clear and objective threshold. We recommend that “stability” is defined within the Bill, with reference to our recommendation that the core of an emergency is the threat to human welfare. (paragraph 65)

283. Under Part 2, the phrase “in particular” is inserted into the list of possible scenarios that could trigger a declaration of emergency, leaving the definition open-ended and subject to interpretation. We are not convinced that the definition of emergency should incorporate such a degree of latitude, or that the safeguards are robust enough to protect against possible misuse. We therefore recommend that the words “in particular” be removed from clause 17(2). (paragraph 69)

284. Under the draft Bill, emergency powers can be triggered by a threat to “another essential commodity” and “other essential services”. These terms are not defined in the draft Bill and seem dependent on Ministerial interpretation. While we recognise that the Government wishes to leave the definition wide enough to “cover the full spectrum of current and future events and situations”,289 we suggest that this degree of latitude leaves the Bill wide open to possible misuse. The phrases “another essential commodity” and “other essential services” should be removed from the Bill. Any amendments to the Bill which may become necessary in the event of future, unforeseen events, should be enacted

289 Consultation Document, chapter 2, para 7, p 13.

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through proper parliamentary procedure, not left to the discretion of the Government of the day. (paragraph 72)

285. Utility companies have raised concerns about the risk of overlap between Category 1 Responders’ duties and their own statutory responsibilities, outlined in other legislation. We recommend that the existing statutory responsibilities of the utility organisations are cross referenced in accompanying regulations, to ensure that there is no ambiguity or overlap in emergency responses. (paragraph 75)

286. The definition of public functions in Part 2 does not include the UK Parliament, although it includes Ministers and the devolved administrations. We recommend that the UK Parliament should be included in Part 2 and the National Assembly for Wales and the UK Parliament be included in Part 1. (paragraph 77)

287. Under the Bill an event may present a threat to the environment if it causes, or may cause, contamination of land, water or air with fuel oils. Concern has been raised that these terms are overly restrictive or inadequately defined. We recommend that the Cabinet Office consider making clearer the definition of oil and water, in light of the concerns that the Committee has heard. (paragraph 81)

Category 1 and 2 Responders

288. We recommend that Category 1 Responders should be able to require any person or organisation to cooperate in planning or training for a response to an emergency. This requirement should be reasonable, necessary, and only be imposed on those most conveniently placed to deal with an emergency, while not creating substantial burdens relative to the resources of any person. Any resources or services required by a person under this section should be paid for by the Category 1 Responder on the most favourable (to the Category 1 responder) commercial terms. (paragraph 90)

289. Apart from functions related to maritime and coastal matters, central government departments and the regional tier are not given any statutory duties, and have no formal status in the process of contingency planning set out in Part 1. We recommend that the role and responsibilities of Government Departments, the National Assembly for Wales and regional government offices are outlined on the face of the Bill and that they are given a statutory duty to undertake their responsibilities. (paragraph 102)

290. County councils and Shire district councils are both included as Category 1 Responders, which in effect accords them the same duties and responsibilities. We recommend that the responsibilities, in England, of County councils and Shire District councils should be explicitly set out on the face of the Bill. (paragraph 105)

291. Under the draft Bill, Fire and Civil Defence Authorities seem likely to be prevented from undertaking emergency planning arrangements on behalf of local authorities. We recommend that the Government re-examine its stance and consider whether successful existing arrangements, such as Fire and Civil Defence Authorities, should be left in place. (paragraph 107)

292. We recommend that Category 1 also include (in England) Strategic Health Authorities, Primary Care Trusts, Acute Hospital Trusts, (in Wales) Local Health Boards, Public Health Services and the National Public Health Service for Wales. (paragraph 113)

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293. We recommend that the Health Protection Agency, National Blood Service and Welsh Blood Service be included as Category 2 Responders. (paragraph 114)

294. The requirement for Category 2 Responders to provide information to all Category 1 Responders would cause utility companies practical and financial difficulty if it means that every local authority can request information. We recommend that the Government’s proposal to involve utilities at local resilience forum level represents a practical compromise. (paragraph 119)

295. We recommend that a statutory duty be placed upon Category 1 Responders to consult with and involve relevant voluntary organisations in civil contingency planning. (paragraph 128)

296. Given the plethora of voluntary organisations and the individual requirements of local areas, we recommend that Category 1 Responders be given flexibility to identify and consult with the most relevant voluntary organisations in their area. (paragraph 129)

297. Given their potential to cause, as well as their ability to respond to a major disaster, we recommend that the Government consider whether to include in Category 2 all operators of establishments subject to the Control of Major Accident Hazards (COMAH) Regulations and organisations that have an emergency response through national schemes, including the National Arrangements for Incidents involving Radioactivity (NAIR), RADSAFE and CHEMSAFE. (paragraph 131)

298. We have heard evidence proposing that road based transport enterprises, the food and drink industry and private security firms should be included as Category 1 or 2 Responders. We have not had an opportunity to take oral evidence from these sectors and therefore have not had time to explore these areas in great depth. We recommend that the Government consider whether to include the Highways Agency, transport enterprises, fuel suppliers, the food sector and private security firms as Category 1 or 2 Responders. (paragraph 136)

Human Rights Issues

299. We conclude that the Government has not demonstrated a clear and compelling need to treat regulations under the Civil Contingencies Bill as having the status of Acts of Parliament for the purposes of the Human Rights Act. At most, there may be a need for some procedural changes, such as a fast track process within a higher court, plus a compulsory stay on the enforcement of any court order until the appeal is exhausted. We welcome the Government’s willingness to reconsider this matter. (paragraph 156)

300. We recommend that the Bill should provide that regulations shall not alter any existing procedure in criminal cases in any way which is inconsistent with Article 6 in the Human Rights Act. (paragraph 164)

301. We recommend that the Cabinet Office put in place arrangements to ensure that the Council on Tribunals is properly consulted about clause 21(3)(l) and that the arrangements to create possible new courts or tribunals are set out in detail in regulations published in draft. (paragraph 166)

302. The draft Bill contains some protection for human rights which can legally be suspended in an emergency but, aside from the partial protection for article 4 (on forced

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labour), not for those from which member States cannot derogate under the European Convention, article 15. We conclude that the intention of the draft legislation would be clearer if clause 21(4) included among the prohibitions on the making of regulations a prohibition on regulations which would breach any of the Convention rights from which it is not possible to derogate or any provision in the Geneva Conventions of 1949 and Protocols thereto of 1977. (paragraph 168)

303. The draft Bill provides for the requisition, confiscation or destruction of property, animal life or plant life with or without compensation (clause 21(3)(b)). We conclude that if property is to be taken without compensation, then it should be specified that (i) the taking is still in compliance with Article 1 of Protocol 1 of the European Convention and (ii) that steps are taken to ensure that insurance is available for any loss. (paragraph 176)

Constitutional Matters

304. We recommend that the Acts of Parliament listed in paragraph 183 should appear on the face of the Bill as not being liable to modification or disapplication under clause 21(3)(j). (paragraph 187)

305. We recommend that, where because of urgency the Minister issues directions, in substitution for regulations, under clause 7(2) or regulations under clause 12(2) without consulting the National Assembly for Wales, such directions or regulations should expire after 21 days. This would allow the Minister time to make, if necessary, regulations which meet the normal requirements of scrutiny by Parliament and for consultation with the National Assembly for Wales. (paragraph 192)

306. We recommend that draft regulations under Part 2 and guidance to them be published from time to time. The drafts should be published not just for the purposes of Parliamentary deliberation on the legislation but in the interests of open government. (paragraph 196)

307. We recommend that regulations made under Part 2 of the Bill should be subject to the same safeguards as primary legislation in that Ministers should be required to make a human rights statement under section 19 of the Human Rights Act 1998 and that the individual regulations should be subject to textual amendment in Parliament. (paragraph 199)

308. We recommend that the powers in Part 2 should expire every five years from Royal Assent unless renewed beforehand by an order subject to the affirmative procedure and laid by a Secretary of State following a report by a Select Committee on the operation of the Act. (paragraph 201)

309. In relation to the ability of a Secretary of State to declare an emergency on his or her own, we consider there should be two additional safeguards:

• the wording of clause 19 should be altered by adding the condition of reasonableness to the finding of satisfaction of the Secretary of State.

• A declaration under clause 19 should lapse if not confirmed by Parliament within seven days as under clause 24. (paragraph 208)

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Resource Implications

310. We have heard that the Partial Regulatory Impact Assessment does not present an accurate picture of the impact of the draft Bill. We recommend that the Regulatory Impact Assessment (Local Responders) be redrafted in order to address the concerns voiced by business and to ensure that it meets the rigorous requirements of Better Policy Making: A Guide to Regulatory Impact Assessment. It needs to set out in much more detail, with supporting evidence, the costs and benefits of the options and to review the options comprehensively in the light of the regulations to Part 1, which are now due to published with the Bill.290 (paragraph 218)

311. We recommend that the definitive version of the Bill should contain, in the explanatory notes, a detailed analysis of the current and projected costs of providing the emergency planning service. (paragraph 222)

312. We recommend that in future all enabling Bills published in draft should be accompanied by a comprehensive set of draft secondary legislation, to form the basis of an analysis of the financial and public service manpower effects of the proposed legislation. In the case of this Bill we recommend that both Houses only consider it if the explanatory notes published with the Civil Contingencies Bill contain a clear statement of the effects on financial and public service manpower and the explanatory notes address the shortcomings we have identified. (paragraph 226)

313. The Government’s consultation process was seriously flawed by the absence of draft regulations, making it impossible for Responders to estimate the costs of the proposals in Part 1 the Bill. In these circumstances we recommend that the Cabinet Office, once it has revised its analysis of costs as suggested above, should publish at the conclusion of the Spending Review 2004 the resources the Government has agreed to implement the Bill fully and effectively. (paragraph 228)

314. The Government proposes that funding for local contingency planning should be moved from a specific grant – Civil Defence Grant – to general grant, currently Revenue Support Grant. We recommend, at the very least, that serious consideration be given to the introduction of transitional arrangements, for example a temporary ring fencing of existing grant levels until such time as the new legislation beds down, appropriate infrastructures are established, and new funding streams identified. Alternatively, the Government should consider delaying the abolition of Civil Defence Grant for at least two years after the new arrangements commence to ensure that planning for and implementation of the provisions at Part 1 of the Bill are adequately resourced. (paragraph 233)

315. As well as local arrangements for civil protection, the Government intends “to generate a resilience culture at the local level" and to require local authorities to promote business continuity management within their areas. We recommend that the principal elements of the proposed business continuity management service be set out in detail in the explanatory notes published with the Civil Contingencies Bill. It should include a business plan for the operation of the service in a typical local authority. (paragraph 237)

290 Q 237, Mr Alexander (Minister of State, Cabinet Office).

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316. We recommend that the Government produces a revised and expanded Regulatory Impact Assessment of the emergency powers at Part 2 of the draft Bill. (paragraph 240)

317. A review of the Bellwin Scheme was conducted in 2001, following which the Government concluded that a change to the statutory basis of the Scheme would not be appropriate.291 We would recommend that the Government, when it comes to finalise the Bill and its supporting documentation, explains the part which the Bellwin scheme plays in resilience and how it fits within the new framework. (paragraph 244)

Audit and Management

318. The Government has considered establishing a new mechanism for performance management, possibly through an inspectorate, but believes that the use of existing mechanisms will achieve its aims of ensuring consistency of performance and bringing civil protection into the mainstream. Because of the importance of ensuring public confidence in the system, we recommend that the Cabinet Office examines the feasibility of a dedicated inspectorate to oversee performance management of civil protection activity, to ensure operational effectiveness and financial efficiency. Such a dedicated inspectorate might be based within a Civil Contingencies Agency. (paragraph 250)

319. In his evidence, the Minister in charge of the Bill firmly rejected the concept of an “Emergencies” super Ministry, along the lines of the Department for Homeland Security in the United States. We recommend that the Government gives careful consideration to the establishment of a Civil Contingencies Agency which, like other Agencies, would have both advisory and supervisory responsibilities. (paragraph 260)

The Regional Tier

320. We recommend that:

• Part 1 of the Bill should clarify the respective planning responsibilities of the local authorities and the regional tier, and include a statutory duty for civil protection at the regional level.

• The regional tier should be simplified in terms of structure.

• The chain of command and communication between national and regional tiers needs to be clarified, and linked to the proposed Civil Contingency Agency.

• Part 2 of the Bill should include the flexibility to proclaim emergencies in geographical rather than administrative areas in circumstances which so dictate. (paragraph 270)

291 Questions for the Bill Team, Appendix 9, question 47.

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Appendix 1: Memorandum from the House of Lords Select Committee on the Constitution Letter from the Lord Norton of Louth, Chairman of the Select Committee on the Constitution

Thank you for your letter of 16th July inviting the Constitution Committee to comment on the draft Civil Contingencies Bill. The draft bill clearly raises matters of constitutional significance which fall within our remit, since the effect of a declaration of emergency is to confer on the Government an exceptional power to deal with the emergency by making regulations covering matters on which power to legislate would in non-emergency situations be withheld from the Government. As requested by your letter we focus particularly on Part 2 of the Bill which proposes to repeal the Emergency Powers Act 1920 (as amended in 1964) and replace it with new primary legislation. We do not attempt to comment on every detail of the draft bill (which may be more appropriate for us to do when a substantive bill is introduced to Parliament) but draw attention to the following broad issues: 1. the definition of ‘emergency’; 2. the geographical extent of an emergency; 3. the need for a royal proclamation and Orders in Council; 4. the status of emergency regulations for the purposes of the Human Rights Act; 5. Parliamentary scrutiny and approval of emergency measures; and 6. the purposes for which emergency regulations may be made.

The definition of ‘emergency’

Our principal concern with the draft bill is with the definition of ‘emergency’. We note that the definition in clause 17 of the draft bill has a much more elaborate structure and a more extensive application than the definition in the Emergency Powers Act 1920, which is primarily concerned with maintaining the essentials of life for the community. In the draft bill, an ‘emergency’ in respect of all or part of the United Kingdom is “an event or situation which presents a serious threat” to: a) the welfare of all or part of the population; b) the environment; c) political, administrative or economic stability; or d) security. Each of these threats is then spelled out in more detail. Thus a threat to the welfare of the population includes matters that may cause loss of life, homelessness, damage to property, disruption of supplies of food and other essential commodities, disruption of systems of communication, disruption of transport, and disruption of “medical, educational and other essential services”. Various forms of threat to the environment are specified (including contamination of land, water or air; and flooding). And “threats to political, administrative or economic stability” include an event or situation that “causes or may cause” disruption of (a) the activities of Her Majesty’s Government; (b) the performance of public functions (which are defined as including all functions of Ministers, the devolved authorities and local councils); or (c) the activities of banks or other financial institutions. We consider that there are likely to be situations or events involving legitimate political activity and protest or legitimate industrial action which will be caught by this very broad definition. We also note that this definition of emergency has already been criticised in reports by the House of Commons Defence Committee (7th Report 2002–03, paras 62-64) and by the Joint Committee on Human Rights (15th Report 2002–03, para. 3.11). We therefore consider that the definition of ‘emergency’ in the draft bill is unduly broad.

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The geographical extent of an emergency

We note that it could be argued that a declaration of emergency in respect of part of the United Kingdom or a region of England would enable special powers to be invoked even though an event or situation is not so serious as one threatening the entire country. However, we also recognise the force of counter-arguments that support the additional flexibility that the draft Bill presents here compared with the 1920 Act. Restricting an emergency to (for instance) an English region struck by a natural disaster when other regions are not directly affected, seems to us to promote proportionality and avoid an over-broad response to a particular crisis.

The need for a royal proclamation and Orders in Council

The 1920 Act requires a state of emergency to be declared by means of a royal proclamation. The draft Bill (clause 19) envisages that there might be circumstances in which the effects of delay while a proclamation was sought from the Queen personally would be serious and significant avoidable harm would be caused. In this event, a Secretary of State would be empowered to make such a declaration. The constitutional responsibility for the decision in either case would be borne by the Government as a whole and there appear to be no grounds for supposing that the Queen would have a discretion to exercise before acting on the advice of her Ministers. A similar question arises out of the provision for promulgating emergency regulations once an emergency has been declared. Clause 20 provides that such regulations shall be made by the Queen in Council, except where ‘serious delay’ in responding to the emergency would arise while a meeting of the Queen in Council is arranged. In this event, the regulations may under clause 20(1)(b) be made by the Secretary of State. Again, the constitutional responsibility for the regulations so made would be borne by the Government as a whole, and in law there would appear to be no difference between regulations made by Order in Council (a purely formal procedure) and regulations made by the Secretary of State. In each case, the regulations would be, or would be made by, statutory instruments and would be subject to the Statutory Instruments Act 1946.

The status of emergency regulations for the purposes of the Human Rights Act

The draft Bill provides in clause 25 that an instrument containing emergency regulations shall be treated as if it were an Act of Parliament for the purposes of the Human Rights Act 1998. The effect of this is that if it were established by a court that an emergency regulation could not be read to comply with Convention rights under the Human Rights Act, s 3, the only remedy under that Act that the court could give would (assuming it was a superior court) be to declare that the regulation was incompatible with the Convention (under the HRA, s 4). Thus the regulation could not be quashed or set aside for non-compliance with the Convention, as would otherwise be possible in the case of secondary legislation. We are not satisfied that the Government has demonstrated a compelling need for this departure from the structure for the protection of Convention rights created by the 1998 Act, and we consider that this approach would run the risk of creating an undesirable precedent.

Parliamentary scrutiny and approval of emergency measures

In the 1920 Act, provision is made for the urgent recall of Parliament in the event of a declaration of a state of emergency while Parliament is not sitting. The emergency regulations made may remain in force only if approved by each House within seven days. In broad terms, clause 24 of the draft Bill provides for a comparable degree of parliamentary scrutiny. There are, however, two changes from the 1920 Act in the extent of Parliamentary scrutiny. First, under the 1920 Act, emergency regulations “shall have effect as if enacted in this Act, but may be added to, altered, or revoked by resolution of both Houses of Parliament” (s 2(4)). The italicised words appear to give the two Houses a power to amend the regulations as laid. The draft Bill, however, provides that the regulations shall lapse seven days after the date of laying unless during this period each House approves the regulations (clause 24(7)). This formulation provides for no power to amend the regulations as made. Second, the 1920 Act requires a new declaration and new regulations to be re-made where a declaration of emergency continued for more than the statutory month, and this would require a further resolution of each House to approve the new regulations. Clause 23(4) of the draft Bill appears to remove this latter requirement.

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We draw attention to these two aspects of the draft bill as deviating from the existing provisions for Parliamentary scrutiny.

The purposes for which emergency regulations may be made.

Clause 21 of the draft bill sets out in considerable detail the provisions which may be made by emergency regulations. They may include “any provision which the person making them thinks necessary” for purposes that range from “(a) protecting human life, health or safety” to “(k) protecting or restoring activities of Her Majesty’s Government”. The regulations may also “disapply or modify any enactment or any provision made under or by any enactment” (clause 21(3)(j)) and “may make provision of any kind that could be made by Act of Parliament”. The drafting then continues with the words: “or by the exercise of the Royal Prerogative” (clause 21(3)). We find it difficult to see what could be done under the Royal Prerogative that could not be done by Act of Parliament. This far-ranging statement of powers is, indeed, preceded by the provision that regulations may make provision “only if and in so far as the person making the regulations thinks it necessary for the purpose of preventing, controlling or mitigating a serious aspect or serious effect of the emergency specified” (clause 21(1)). Where that is the case, the regulations “may make any provision which the person making the regulations thinks necessary” for the purpose just set out. Nonetheless, we consider that the extent of the purposes for which regulations may be made reflects the breadth of the definition of ‘emergency’ contained in the draft bill; and that this will need to be re-examined if a narrower definition of ‘emergency’ is adopted. The 1920 Act provides some express limitations on what may be done by regulations. Among these limitations is an exclusion of any form of compulsory military service or industrial conscription, and an exclusion of making it an offence for any person to take part in a strike or peacefully to persuade others to take part in a strike. Clause 21(4)(a) continues the exclusion for military or industrial conscription and clause 21(4)(b) provides that regulations may not “prohibit, or enable the prohibition of, a strike or other industrial action”. We draw attention to this new formulation which seems narrower than the protection for industrial action given by the 1920 Act.

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Appendix 2: Memorandum from the House of Commons Transport Committee Letter from Mrs Gwyneth Dunwoody, Chairman of the House of Commons Transport Committee

Thank you for inviting the Transport Committee to comment on the draft Civil Contingencies Bill. Given the specialist nature of our interest, we have limited ourselves to broad points of principle, and to one specific transport point. Firstly, we agree with the Defence Committee that there needs to be far more detail about the way to Bill will be applied in practice, and the nature of the regulations that will be made under it. We are particularly concerned that the regulations in Part 1 of the Bill will not be subject to the affirmative procedure, even though they contain Henry VIII powers. It is not clear to us why regulations making provision for essentially planning work require those Henry VIII powers. Like the Defence Committee, we will be interested to see if the Bill is intended to apply to circumstances in which Parliament is under threat. On a much narrower point, Category 2 Responders include: • A person who holds a licence under section 8 of the Railways act 1993; • an airport operator within the meaning of section 82 (1) of the Airports Act 1986; • a Harbour authority within the meaning of section 46 (1) of the Aviation and Maritime Security Act

1990. They do not include those providing road based transport. There is no explanation for this distinction, beyond a reference in the Regulatory Impact Assessment to "the importance that these organisations have in terms of potentially being the cause of an emergency situation and in aiding response and recovery in liaison with the emergency services"; it may well be that existing police powers would be enough to deal with a road based emergency. However, the Bill allows for regulations to require Category 2 Responders to provide information to Category 1 Responders; one can imagine circumstances in which those planning for an emergency evacuation, say, would wish to know how many buses were available in a particular district. You may wish to ask about the reason for the exclusion of road based transport enterprises from the list of Category 2 Responders. You particularly asked the Committee’s view on Part 2 of the Bill. Clearly, we have not held a specific inquiry into this, but the parliamentary controls over emergency powers seem broadly adequate. We note that the Defence Committee suggested that the “triple lock” over the use of emergency powers be included on the face of the Bill. It also suggested that the proclamation of a state of emergency might be required to be approved by Parliament. We understand the Defence Committee’s concerns, but the counter argument is that the definition of state of emergency is already on the face of the bill; adding the other provisions would open the question of whether the use of the Act was appropriate further to judicial review. If a situation is serious enough to require immediate action, judicial review of the decision to proclaim an emergency could cause delay, and could be seen as giving the courts control of what is essentially a political judgement. A state of emergency would only be proclaimed if legislative action was needed (to do so otherwise would be pointless) and that is subject to stringent Parliamentary control. If our understanding that the Regulations made under the state of emergency themselves will be judicially reviewable is correct there are already both political and legal safeguards against government abuse of emergency powers. Some form of Parliamentary approval of the Government's action in requesting the Queen to make a proclamation of a state of emergency might be a possible compromise, although the regulations themselves provide an opportunity for Parliament to strike down the Government’s action. I hope these comments are useful.

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Appendix 3: Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform Letter from Lord Dahrendorf, Chairman of the House of Lords Select Committee on Delegated Powers and Regulatory Reform

Introduction

On 16 July, Dr Lewis Moonie MP, Chairman of the Joint Committee considering the draft Civil Contingencies Bill, wrote to Lord Dahrendorf, inviting this Committee to consider the delegated powers in the draft bill. We welcome the opportunity to contribute to the pre-legislative scrutiny of this important bill, and this Memorandum sets out the Committee’s views. We have not, unfortunately, had the benefit of a delegated powers memorandum by the Cabinet Office. As a result, some of the concerns we raise may be satisfied by further explanation (additional to that provided by the Explanatory Notes which accompany the bill and the consultation document of June 2003). Other concerns of the Committee are more fundamental. At this stage, we seek only to identify some of the issues to which we think the attention of the Joint Committee should be drawn, whilst reserving the right to comment again on the bill when it has been introduced and in the light of a delegated powers memorandum.

Part 1

There are a number of delegated powers to make orders and regulations in Part 1 of the bill. We shall refer in particular to those in clauses 1(7), 2(2), 4(2) and 6. We shall also comment on a power, in clause 7, to give directions in cases of urgency.

Clause 1(7)

Clause 1 provides a wide definition of “emergency” for the purposes of Part 1 of the bill. Clause 1(1) states that an emergency is an event or situation which presents a serious threat to any of the four categories set out in clause 1(1) (a) to (d). Clause 1(7) enables a Minister of the Crown to provide by regulations that particular situations or events, or types of situation or event, present a threat within one of those four categories. The regulations cannot override clause 1(2) (which gives an exhaustive list of events or situations presenting a threat to human welfare), though they may be more particular than clause 1(2). It is possible to deduce from clause 1(9) and from the draft Explanatory Notes that one likely use of this power is to relate certain types of event to certain types of “Category 1 Responders”. Although the delegation may not be inappropriate, we question the application of the negative procedure provided for under clause 13(3). In the absence of any explanation to the contrary, we would expect the affirmative procedure to apply here, since whether or not something is an emergency is highly significant for most of the other provisions in Part 1.

Clauses 2(2) and 4(2)

Clause 2(2) sets out the duties of those listed in Part 1 of Schedule 1 (local authorities, emergency services, etc. – “Category 1 Responders”). The extent of those duties is apparent in broad terms, but clause 2(2) enables regulations, subject to negative procedure, to prescribe the precise extent of the duty and how it is to be performed. Clause 2(3) lists some of the items which the regulations may contain (and in some cases duties can be imposed on those listed in Part 2 of Schedule 1 as well as on those listed in Part 1 of Schedule 1). The list of items in clause 2(3) is wide-ranging. We note, in particular, that under clause 2(3)(n) provision may be made which operates wholly by reference to the discretion of any specified person or body, and that clause 2(3)(o) enables the regulations to take precedence over statutory provisions in an Act. Were the last two provisions to be included in a bill as introduced, we would invite the Government to provide a full

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explanation of the need for these provisions and suggest to the House that, given the width of the powers under clause 2(2), they should be subject to affirmative, rather than negative, procedure. Clause 4(1) requires local authorities to advise and assist the public in connection with arrangements for the continuance of commercial activity in an emergency. Clause 4(2) is the equivalent for clause 4(1) of clause 2(2) for clause 2(1) and similar considerations apply.

Clause 6

Clause 6 enables a Minister of the Crown to make regulations, subject to negative procedure, requiring or permitting disclosure of information between persons and bodies listed in Part 1 or 2 of Schedule 1. This is in addition to the powers at clause 2(3)(h) (limited to the duty under clause 2(1)) and 5(3)(d) (limited to duties under the section 5 order). Clause 6(2) limits the subject-matter of the regulations to functions which relate to an emergency. But there is no limit on the provision of “sensitive information”. We note however that the June 2003 consultation paper, at Chapter 3, paragraph 26, refers to “appropriate safeguards” in this area. These safeguards do not appear in the draft bill itself. We assume therefore that the Government intends to include them in the regulations. The provision of such safeguards would be a relevant factor to our consideration of the appropriateness of the delegation under clause 6; and if clause 6 were to be included in the bill as introduced, we would invite the Government to provide a full explanation of those safeguards along with further explanation of the meaning of “sensitive information”.

Clause 7

Clause 7 enables a Minister to do, by oral or written directions, anything which he could do by regulations under clause 2(2), 4(2) or 6(1) or by order under clause 5, where there is urgent need and insufficient time to make the regulations or order. This is a power of very considerable significance and we would expect a convincing justification for its inclusion. The bill (as it stands) provides for regulations under clauses 2(2), 4(2) and 6(1) to be subject to negative procedure, and instruments subject to that procedure can be, and often are, made in very short timescales. But even assuming that a power to give directions were appropriate, we question the need for that power to extend to oral directions. We expect the Government to provide convincing examples of situations where it would be possible to give directions only orally; and to consider requiring that all directions under clause 7 be put in writing at some stage even if it were not possible to communicate the directions in writing at the same time as orally.

Part 2

Clauses 20 and 21

Under clause 20, the power to make regulations is conferred on Her Majesty acting by Order in Council, and also on the Secretary of State where an Order in Council could not be made without serious delay. Clause 21 sets out the nature and width of the power to make regulations. It is a very wide power indeed. Clause 21(3) provides that the regulations may make provision of any kind that could be made by Act of Parliament or exercise of the Royal Prerogative, and gives a non-exhaustive list of provisions which might be included. If this were not a draft bill to make emergency provision, we would strongly question the appropriateness of a number of aspects of the power (such as, for example, sub-delegation by directions or orders (whether written or oral) ((3)(a)(ii)), confiscation of property without compensation ((3)(b)), destruction of property, etc. without compensation ((3)(c)), prohibition of movement ((3)(d) and (e)), and prohibition of assembly ((3)(f))). The power in clause 21 might be exercised in a manner incompatible with the Convention Rights mentioned in section 1 of the Human Rights Act 1998. Clause 25 of the draft bill, by providing that regulations under clause 21 are to be treated as an Act of Parliament for the purposes of the 1998 Act, limits the effectiveness of remedies available in cases where those Convention Rights are infringed.292 The extent to which there is an

292 See the 15th Report, Session 2002-03, HL Paper 149, HC 1005, of the Joint Committee on Human Rights where, at

paragraphs 3.20 to 3.35, the human rights implications of the draft Civil Contingencies Bill are described in detail.

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effective remedy is a factor which the Committee would regard as relevant in considering the appropriateness of the powers in clause 21.

Parliamentary scrutiny and renewal of regulations

The arrangements for Parliamentary scrutiny are based on those for regulations under the Emergency Powers Act 1920. The Secretary of State must lay the regulations before Parliament as soon as practicable after making. The regulations lapse 7 days after laying unless approved by each House. This procedure for making the regulations seems satisfactory. Under clause 23(1) and (2) proclamations or orders declaring the emergency lapse after 30 days. Any regulations lapse with the proclamation or order, though a new proclamation or order can be made, and new regulations can be made under it. But clause 23(4) provides an exception. Where, before the lapse of a proclamation or order, a fresh one is made about the same emergency (so that there is no break in continuity), the regulations made under the first proclamation or order continue in force (and do not lapse). If this provision remains in the bill, we will consider whether there should be a time limit for regulations which continue under clause 23(4), whereby the regulations would lapse unless specifically renewed. 8 October 2003

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Appendix 4: Note by Dr James Broderick, Specialist Adviser to the Committee EXECUTIVE SUMMARY OF OPENING BRIEF

What follows is a summary of the main points and questions contained in the Opening Brief submitted to the Clerks.

Definition of Emergency:

• Emergency is defined very broadly in the documentation • There is ample scope for ambiguity and misinterpretation of events • More structured categorisations of emergency are used in other countries • The current structure of the Bill’s terms of reference creates problems regarding the allocation of

power and responsibility

Risk and Risk Management:

• Risk and risk management underpin the Bill team’s approach to civil contingency • The team adopts the view that disruptive challenges exist along a spectrum of severity but insufficient

guidance is given about where key thresholds lie on this spectrum • The Bill team over-emphasises quantification at the expense of qualitative issues • Insufficient explanation is given regarding key governmental response mechanisms • Horizontal and vertical integration in emergency response is not assured

Local Tier:

• Why is the statutory duty placed only on the local tier? • The funding of the duty is not properly addressed • Communications issues are not addressed • Problems beset the proposal to create categories of Responder organisation

Regional Tier:

• The Draft Bill itself does not specifically mention the creation of a regional ‘tier’ • The regional tier is poorly defined • Why is a statutory duty not being placed on the regional level? • The regional co-ordinator’s role further embeds the problematic ‘lead government department’

concept • The lack of specification in the Bill and supporting documentation means that the regional tier could

become subject to problems already being experienced at local and national levels

The National Tier:

• The Draft Bill removes the Government duty to have civil contingency plans. This should be reviewed • Central Government should report annually on defence and security in the UK • The government should review how it transmits intelligence-based information • Central rather than regional government should retain the crucial leadership function in emergency

response • Review and reform of the Civil Contingencies Secretariat, led by a dedicated Cabinet Minister other

than the Home Secretary is required

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ANALYSIS OF THE DRAFT CIVIL CONTINGENCIES BILL AND SUPPORTING DOCUMENTATION

Introduction

The following commentary on the Draft Civil Contingencies Bill is divided into five main sections: 1. Emergency, 2. Risk and risk management, 3. Local Tier, 4. Regional Tier, 5. National Tier. A brief conclusion then follows.

1. Emergency

‘Emergency’ is defined very broadly in the documentation.293 In one sense this is a seemingly rational approach which reflects a core belief that “..civil protection in the 21st Century bore [sic] little resemblance to the 20th Century legislation in which it had its roots.”294 The idea is that “the range of challenges that society faces has broadened as networks have become more complex” thus a greater degree of co-ordination and integration of activities is required.295 The definition of emergency is “designed to be highly inclusive, encompassing circumstances as diverse as severe flooding, a major chemical attack, disruption of fuel supplies and epidemics.”296 The advantage of such a conceptualisation is, of course, that flexibility and adaptability can be built into the legislative framework which can then be used as authority to act decisively should novel or unforeseen events occur. However the very generality of this overarching definition does give rise to a number of questions which merit further exploration. In particular, the definition is so wide there is ample scope for ambiguity and misinterpretation of events. For example, the section entitled “When Emergency Powers May be used” of the Consultation Document uses terminology such as “Major accidents”, “Serious Economic Crises” “major acts of terrorism” and “War-like situations” without further explanation of the underlying quantitative or qualitative terms which will determine whether a given event or events should be labelled an emergency. 297 For example, what exactly does the term ‘war-like situation’ mean here? Why have the Bill team decided to opt for such a broadly defined and vaguely differentiated conceptualisation of the term ‘emergency’? Specifically, what are the reasons for avoiding a more structured definition of emergency since it is not that difficult to identify distinct ‘typologies’ of such situations. Events could be categorised using clearly understood (rather than simply implied) quantitative terms of reference relating to severity of impact (financial loss, fatalities etc) and/or qualitative assumptions that differentiate between terrorist attack, viral pandemic, failure of critical infrastructure/services and so on. Importantly, this could provide guidance as to where responsibility for managing/responding to emergencies should reside. More structured categorisations of emergency are used in other countries. For example, in the Report by British Institute of International and Comparative Law it is noted that the Robert. T. Stafford Disaster Relief and Emergency Assistance Act differentiates between a “major disaster” and an “emergency” in terms of “duration, extent of damage and the amount of federal assistance needed and provided.”298 Moreover:

The Stafford Act governs the co-ordination and delivery of [federal] disaster relief for natural and man-made disasters. It establishes a process for requesting and obtaining a [Presidential] disaster declaration, defines the type and scope of assistance available from the [Federal] government and sets the conditions for obtaining the assistance.”299

293 See for example the “Common Definition of Emergency”pp12-13 of the Draft Civil Contingencies Bill Consultation

Document. 294 Ibid, p.9, para.2. 295 Ibid, p.12, para. 2. 296 Draft Civil Contingencies Bill Explanatory Notes p.27 para. 41. 297 Consultation Document, pp.28-29. 298 Report by British Institute of International and Comparative Law on “Emergency Planning and Civil Protection in France,

Sweden, the European Union and the United States”, p.43. 299 Ibid, p.45 [..] added.

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In my view, the documentation accompanying the draft Bill does not adequately explain why a greater degree of differentiation has been rejected, nor how the current draft legislation will better address key ‘generic’ requirements in emergency management such as: clarity of definition, well-understood chains of command and control and clear mechanisms for the provision of assistance. At present, “clause 1(7) [of the draft Bill] enables a Minister to clarify in regulations whether particular or situations are or are not to be regarded as constituting an emergency”300 The danger here is that regulations will be slow in development, imprecise in scope and/or ineffective. A potential outcome is that, at crucial junctures, Ministers will themselves be looking for guidance in the face of events precisely when coherent leadership and strategic direction is urgently required from this level of government. At such a time, a more clearly defined, structured, conceptualisation of emergency in the primary ‘enabling’ legislation might prove to be highly beneficial. At present these concerns are not properly addressed in the documentation which accompanies the draft Bill. These are not merely semantic issues. The current structure of the Bill’s terms of reference creates problems and ambiguities regarding the allocation of power and responsibility in the face of unforeseen catastrophe. Resolving these questions at a fundamental level should be a primary purpose of an ‘enabling’ Bill. In its current form, the draft Bill may simply perpetuate these tensions.

2. Risk and Risk Management

As is revealed in paragraph 1 of the Executive Summary of the Consultation Document, risk and risk management are central organising concepts which underpin the structure and approach to civil protection outlined in the Draft Bill. While these are an appropriate conceptualisation of the problem of improving the UK’s vulnerability to disruptive challenge a number of issues do arise.

Quantification of Risk

The Consultation Documents states: “The aim of building resilience is to reduce susceptibility to challenges by reducing the probability of their occurrence and their likely effects.”301 This is a fairly standard definition of risk associated in particular with quantified risk assessment (QRA) techniques. That some form of quantitative differentiation is being utilised is also clearly implied by the statement that: “Disruptive challenges exist along a spectrum of severity ranging from local flooding to massive terrorist attack”302 However, neither the Bill nor the accompanying documentation address where key thresholds lie on this ‘spectrum of severity’. At what point will a ‘local’ emergency become a ‘regional’ or ‘national’ emergency? How are Ministers to make such a judgement? Indeed, the purpose of the Bill is to ‘enable’ Ministers to declare a state of emergency but the framework proposed appears to assume that Ministers, in the face of novel or unforeseen events, will be vested with perfect information and a comprehensive understanding of the substantive essence of the problem they face. Yet risk practitioners themselves all acknowledge (supported by numerous theoretical studies of crisis decision-making) that during periods of crisis, decision-makers are subject to severe limitations, asymmetries and distortions of information as well a being subject to highly stressful, threatening and surprising events requiring rapid response. Is there a case for building in to the Bill itself a clearer structure or clarification of what is meant by ‘severity’ and better guidance as to how different levels of severity should be tackled? The Draft Bill is supposed to impart a level of ‘consistency’ (i.e. ‘rationality’) in decision-making and emergency response which current UK emergency powers legislation does not achieve. The above points indicate that the new Draft Bill makes some highly contentious assumptions about ‘rational’ decision-making that are very similar to the problems we currently face regarding the existing legislative framework. It is not clear that the proposed changes will be any more effective in addressing these problems. Moreover, the Consultation Document’s proposed “triple lock” against misuse of Emergency Powers doesn’t provide much in the way of assurance here:

300 Explanatory Notes, p.24, para. 11. [..] added. 301 Consultation Document, p.5, para.1. 302 Ibid. Emphasis added.

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• Seriousness – the situation should be serious enough in nature to warrant the use of Emergency Powers

• The need for special legislative measures -...should only ever be used if there is a genuine need to take such special legislative measures

• Relevant geographical extent – A need for special legislative measures should be declared on the minimum geographical extent required.303

The above appear to be a mix of tautological argument and general aspirational ideals rather than a properly defined mechanism either to assist the appropriate use, or conversely, to prevent the abuse, of the powers envisaged by the Bill. Moreover, this ‘triple lock’ is not contained in the draft bill itself, other than in the context of Her Majesty or the Secretary of State being ‘satisfied’ that a serious threat...exists.” Whether a more clearly defined set of safeguards should be inserted in the Bill proper is clearly an important issue for consideration.

Qualitative concerns

Is it appropriate to neglect qualitative distinctions between ‘disruptive challenges’ such as ‘local flooding’ and ‘terrorist attack’? The Draft Bill Team clearly think so as it is stated that “the purpose of the Civil Contingencies Bill…is to deliver a single framework for civil protection in the United Kingdom” and that, “in a diffuse world of risks this is best delivered through an approach based on generic capabilities.”304 Yet, while the end goals of consistency of structure and flexibility of response are laudable goals, will these be delivered by the framework outlined? A vital aspect of this problem is revealed in reference to Margaret Thatcher’s recollection of the government’s response to the Miner’s Strike of 1984. In, The Downing Street Years, Mrs. Thatcher notes that in response to the declaration of a national dock strike:

We mobilized the Civil Contingencies Unit to prepare to meet the crisis but avoided proclaiming a state of emergency, which might have meant the use of troops. Any sign of overreaction to the dock strike would have given the miners and other union militants new heart.”305

Clearly, for Mrs. Thatcher, the problems of 1984 were a complex mix of ‘economic’, ‘social’ and ‘political’ problems and calculations. Such contextual concerns therefore render highly problematic the idea that emergencies can be easily quantified or universally understood in equivalent terms. What is certainly apparent here is that, faced by the extension of industrial unrest beyond the mining sector, Ministers were not assisted by the structure of emergency powers legislation. If anything, the possibility of military involvement, as well as the political signals which would be sent by using such powers, were disincentives to invoke such legislation. It is not certain that the current structure of the Draft Bill will significantly improve matters. Realistically, any declaration of emergency will always have to be made in a politicised context. Current legislation was obviously unwieldy in 1984, whether these lessons have been learnt in relation to the new Draft Bill need to be explored. As a corollary to this I would like to sound a note of caution in relation to the deliberations of the Joint Committee. In reference to the Foot and Mouth Epidemic of 2001, it could be said that one cannot conclude that increased powers are necessary to prevent a repetition of the problems in 2001. First the FMD problems were not necessarily related to lack of powers. Second the Animal Health Act 2002 has increased powers to deal with such an outbreak where inadequacies had been demonstrated. It is hard to believe that even greater powers and less accountability would have improved the situation. While this is a relevant and important point, there is also a danger to be avoided here. In considering the appropriateness of the Draft Bill, attention should not solely be paid to exploring merely whether an ‘increase’ in powers is commensurate with the ‘severity’ of future disruptive challenges. This restricts our thinking to simplistic (and partial) terms of reference that over-emphasises quantification at the expense of important qualitative concerns about the substantive nature of ‘emergency’ and the context in which crisis decision-making occurs.

303 Ibid, p. 28, para 19. 304 Consultation Document p.5 paras 5-7. 305 Margaret Thatcher: The Downing Street Years, p 356.

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An effective risk management approach?

Despite the clear aim to modernise the legislative tools available and create a single flexible framework for civil protection, the Bill Team’s documentation does not adequately explain why a number of important concepts are considered integral to effective emergency response. In relation to aspects of the “Policy Development” process, the documents state: “Analysis of current practice and procedure informed decisions about the scope and structure of the Bill. The wider resilience agenda, including the capabilities based approach and the Lead Government Department concept.”306 No supporting argument is given as to why these are considered effective mechanisms of risk management. If emergencies have qualitative as well as quantitative characteristics, where does this leave the ‘generic’ or ‘capabilities based’ approach outlined? In fact, what does this term actually mean in practice? Similarly problematic is the continued faith in the efficacy of the “Lead Government Department” concept. Certainly the Anderson Report into the 2001 FMD crisis outlines, in paragraph 9.8, a very interesting range of possible reasons why the army’s assistance was not sought early on:

The delay may have been due to a desire to avoid sending negative political messages about the gravity of the crisis. They may have been caused by MAFF’s reluctance to ask for help. Or they may have occurred simply because central government did not appreciate the size of the task.

Quite clearly, the lead government department concept in 2001 might well have been a contributory factor to the eventual severity of the FMD problem. This criticism is not addressed in the Consultation Document. Also, no mention of the Lead Government Department mechanism is made in the Draft Bill itself, nor is any further light shed by the Explanatory Notes. Again this raises the question: Why is this process deemed an efficient risk management approach? For further illustration of the potential problems inherent even in designating a ‘lead department’ one need only briefly refer to the “Matrix of Sector Emergency Powers” Annex J (supplied by the Clerks) and think, for example, of a radiological leak from a civil nuclear power facility contaminating the water supply. In this instance it would appear that a number of major government departments, including DEFRA, the DTI, OPDM and the DOH all appear to have some form of immediate departmental relevance and/or ‘capability’. What is still not clear is how the process of designating response authority/responsibility will be rendered more effective/efficient than at present. In other words, as well as considering whether the Draft Bill is merely a simple codification of existing practice one should ask whether the Draft Bill will perpetuate (and even more deeply embed) current problems with UK resilience. Despite the drive to improve risk awareness and risk management in emergency response, it is not clear that the Bill’s aim of ensuring “an effective response capability across the local area to all hazards”307 will be successful. Neither is it certain that ‘vertical’ integration in the resilience framework will be promoted. Furthermore, as well as the likelihood of delay, departmental prevarication and ‘blamism’ arising from the ‘capabilities based/lead government department’ framework, the Draft Bill and accompanying documentation contains some glaring omissions/gaps in terms of the roles and responsibilities of key government agencies/departments. I hope to explore these ‘framework’ issues further in the following sections but one in particular merits attention here. Part 1 of Schedule 2 of the Draft Civil Contingencies Bill – Repeals and Revocations - notes that Section 1 of The Emergency Powers Act 1964 will be repealed or revoked by the new legislation.308 Why does the rest of the 1964 Act fall outside of the Draft Civil Contingencies Bill’s remit? The Explanatory Notes merely state: “Section 2 of this Act does not relate to Emergency Powers but provides the legislative underpinning for Military Aid to Government Departments.”309 The Consultation Document devotes precisely one paragraph of its 42 pages to the issue of the role of the military during an emergency. It states:

Ministers have agreed that the proposed new special legislative measures framework will not affect the operation of military assistance in an emergency situation. Section two of the Emergency Powers Act 1964 provides an important legal basis for the provision of military

306 Consultation Document, p.10, para.8. 307 Partial Regulatory Impact Assessment, p.4, para.18. Emphasis added. 308 Draft Civil Contingencies Bill page 19. 309 Explanatory Notes, p. 29, para.57.

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assistance and will remain in place. No new powers will be granted to the military, their role will remain as it is at present.310

Given the crucial (and at times highly problematic) utility of military assistance in relation to the Miner’s Strike of 1984 and the FMD outbreak of 2001, the assumptions governing such a ministerial decision should be thoroughly explored. The civil-military relationship is critical in promoting UK resilience. Why the current legislative framework governing MACA is considered adequate needs to be examined further.

3. The Local Tier

The Draft Bill proposes to establish a series of duties on local Responder organisations which will reduce the “reliance on permissive powers” and “bring civil protection into the mainstream” of local Responder functions.311 While such a move is generally to be welcomed it is not certain that, as currently formulated, the scope of such statutory duty will be effective in ensuring that civil protection is “applied consistently across the local Responder organisations.”312 A number of important questions do need to be addressed: Why is the statutory duty placed only on the local tier? Why are regional and national tiers of government exempt from a similar process of ‘formalisation’ of the civil protection duty in the Draft Bill? This relates to earlier comments about the vagueness inherent in the definitions and approaches adopted in the Draft Bill and its accompanying documentation. But it also creates a further problem in that the ‘burden’ of creating an effective civil protection regime looks to be particularly ‘bottom-heavy’ in the framework currently envisaged. Local Responder organisations are already stretched in terms of resources and capacity, is there not a case for the Draft Bill to introduce a more equitable distribution of the duty across the 3 tiers of government (local-regional-national)? The funding of the duty is another key area of concern here. The creation of a statutory duty at the local level is accompanied by a move to merge the current Civil Defence Grant with the Revenue Support Grant (RSG) in line with the wider LGA commitment to removing the amount of specific and ring-fenced grants available to local authorities. Aside from the highly contentious view that the new Civil Protection duty will not carry significant extra cost, this obviously creates the potential for the perpetuation of inconsistency across the local tier as different LGAs will make differing provision for civil protection as they try to balance competing funding priorities and respond to local variations in civil protection needs. Yet, at the same time, no funding provision appears to have been made at the regional level. Neither are there corresponding changes in national provision for emergency financial assistance, instead, it is proposed that the Bellwin scheme be retained. Thus the national financial provision for emergency assistance remains essentially locked into the present response framework and does not appear to be particularly supportive of the statutory changes envisaged in the Draft Bill. The financial structure outlined thus reinforces a ‘bottom-heavy’ framework and simply perpetuates the problem of permissiveness and inconsistency across the local tier. Communications issues are similarly not addressed despite the statement contained in the Partial Regulatory Impact Assessment that “Information-sharing and co-operation are the foundations of enhanced resilience.”313 However, at present, different Responder agencies have different levels of access to classified information and intelligence. How is information-sharing and resilience to be promoted under the current classification regime? The documentation accompanying the Draft Bill essentially avoids exploring this problem. Such problems also beset the proposal to create two Categories of Responder organisation. How will the proposed twin categorisation be affected by asymmetry of access to information? Also, why is the nomination of Category 1 and 2 Responders only being made at the local level? Is there not an argument for creating such categories at a regional (if not national) tier as well? This differentiation might well have positive implications for burden and cost sharing which are not explored either in the Consultation Document nor the Partial Regulatory Impact Assessments. In fact the ‘three option’ cost/benefit analysis outlined in the Partial Regulatory Impact Assessment completely fails to take into account the potential offset to costs by coordinating Category 2 Partnership activities at a regional or national level. For some Category 2 organisations there could well be economies of scale to be achieved by locating the Partnership/co-operation

310 Consultation Document, p. 30, para.37. 311 Ibid, pp.17-18, para. 6. 312 Ibid, p,18, para. 6. 313 Partial Regulatory Impact Assessment p.34, para 18.

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function regionally rather than duplicating such activities in a large number of local forums. The Documentation accompanying the Draft Bill makes no mention of the cost/benefit implications of adopting this approach. If nothing else, these points do undermine some key premises of the argument for adopting: “Option 2: Duty on a limited Range of Organisations” rather than “Option 3: Duty on a larger range of agencies – with co-ordination ensured by a statutory Partnership” at the local level.314 Adopting Option 3 might actually bestow a financial advantage in that it could be used as a mechanism whereby Category 1 Responders at the local level can explore means of financial/resource ‘burden-sharing’ with Partner (Cat. 2) organisations (and vice versa). Moreover, in the documentation accompanying the Draft Bill it is clearly argued that a proactive approach to Business Continuity and Risk Management has positive cost/benefit outcomes for the private sector.315 But, if this is the case, doesn’t such logic also suggest that a formal ‘statutory Partnership’ could actually further foster ‘risk awareness’ in the private sector? Also, might such a duty provide a clear, well-defined legislative framework within which Category 2 organisations could seek to limit their exposure to corporate/insurance liability costs and/or claims? None of these avenues of exploration appear to have been adequately investigated. Such problems are not helped by the fact that Parts 1 and 2 of the Draft Bill have differing territorial extents. 316 Clause 12 of Part 1 only specifies that the Welsh Assembly should be consulted during emergencies affecting that part of the UK. At present, the Consultation Document merely states that “separate consultation” is being carried out in Scotland and Northern Ireland. What specific provisions are being made arising from the consultation with these assemblies? How will ‘consistency’ of local response be assured and monitored? Also, is there a case for including specific provision in Part 1 of the Bill to include the Greater London Authority?

4. The Regional Tier

Although a number of problems relating to the regional tier have already been alluded to, a number of further areas of concern need to be considered. The Explanatory Notes devote a single paragraph to the creation of “Regional and Emergency Co-ordinators” and simply defines their regional role as, “sitting at a regional level to enable effective co-ordination of response efforts supported by local knowledge and exercising specific powers that may be granted to him or her...”317 Chapter four of the Consultation Document is entitled “A New Regional Tier” but, again, the powers, roles and functions envisaged are so vaguely formulated (being largely centred around “co-ordination”, “support” and “assistance” roles) that it is difficult to achieve a clear sense of just what value is being added by the creation of this new tier.318 Furthermore, it should be noted that the Draft Bill itself does not specifically mention the creation of a regional ‘tier’ at all. Indeed, Part 1 of the Bill essentially excludes Northern Ireland and Scotland as it deals with “Local Arrangements for Civil Protection” and, in Clause 12, simply makes provision for “consultation with the National Assembly for Wales.”319 In Part 2 of the Bill, Clause 22 concentrates entirely on the appointment of individual regional co-ordinators and Clause 26 stipulates that Ministers in Wales, Scotland and Northern Ireland will be consulted in relation to emergency regulations affecting those parts of the UK.320 Should a more specific commitment to creating a ‘regional tier’ be included in the Draft Bill? If nothing else, the Scottish and Northern Ireland assemblies appear to fall somewhat between two stools here in that they are at once ‘regional assemblies’ with power to organise ‘local response’. As such they are structurally and constitutionally unlike the proposed English regional agencies. Whether such variations will affect ‘consistency’ of response is not made clear. Furthermore, how will equivalence in the levels of protection afforded between the regions be assessed?

314 Ibid. pp. 36-44. 315 See for example Partial Regulatory Impact Assessment p. 33 paras. 13-14. 316 Consultation Document pp.32-33. 317 Explanatory Notes, p.28. para. 49. Emphasis added. 318 See Consultation Document pp.22-25. 319 Draft Civil Contingencies Bill pp.1 – 9. 320 Ibid, pp.7-13.

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Also, why is a statutory duty not being placed on the regional level in the same manner as at the local level? The creation of the new tier, it appears will be done through the general regulatory powers granted to Ministers under this enabling Bill If nothing else, doesn’t this introduce great uncertainty regarding the supposed regional ‘leadership’ function that is supposed to ensue from this Bill?321 It is not clear that the regional ‘leadership’ role will be well-understood by other tiers of government nor how the goal of horizontal ‘consistency’ across the regional tier will be promoted. Certainly significant concerns have arisen in relation to this proposed ‘new’ tier of government, not least among emergency planners within the LGAs. In particular there is a widespread view that the regional tier will simply act as another layer of bureaucracy, to which local Responders and other agencies will be required to report, but which does not itself have any significant power or authority and which will not be able to provide support either in terms of resource allocation or strategic guidance. Instead, many fear that the introduction of such a tier will have a detrimental effect on local Responder’s effectiveness as it will simply increase their administrative burden and undermine clarity in command and control processes from the national tier down. Lastly, in this regard, how will the regional tier be funded? No mention at all is made of funding provision for this tier of the response framework. Will the regional offices be required to fund the activities? Will there be funds available to the local tier channelled via the regional level? Why are these issues not addressed in the cost analysis contained in the supporting documentation? Given the generality of the conceptualisation of the regional tier as outlined in the Draft Bill and its accompanying documentation, these concerns should be given serious consideration. Other questions which require clarification include whether the ‘regional co-ordinator’ role further embeds the ‘lead government department’ concept by extending it to the regional tier? As has already been observed, this is a highly questionable approach to emergency response which appears to have been adopted as an ‘article of faith’ by the Bill team. The arguments for extending this process to the regional tier should be clarified. It does appear that the regional tier might inherit some other problems currently associated with the local level. In particular, how will the civil-military relationship be fostered? Despite the fact the Draft Bill will leave the current legislative underpinning of the MACA arrangements largely intact, it is clear that civil-military co-ordination is to be primarily located at this tier. However, neither the Bill itself nor the accompanying documentation explores or clarifies the advantages/disadvantages of such a decision. The Consultation Document states that “Regional Resilience Forums (RRFs) have been formed to bring together the key players, including central government agencies and the Armed Forces, and representatives of local Responders such as the emergency services and local authorities.”322 But, how will the envisaged regional structure address the problems of asymmetries in access to classified information and/or intelligence? This is a problem which continues to dog the efforts of Responders at the local level, it is not at all clear how the regional tier will escape similar difficulties. The MOD has already announced its intent to earmark approximately 6,000 reservists organised into some 14 units for a civil defence/protection role under the ‘New Chapter’ of the Strategic Defence Review. Hence the creation of a regional tier of government, in my view, does impart some advantages. If nothing else, by establishing military-civil cooperative arrangements at this level a measure of ‘consistency’ is achieved in that, as is noted in the Defence Committee’s Report on the Draft Civil Contingencies Bill: “the Civil Contingency Reaction Forces (CCRF) are being established in each regional Brigade area and those areas with two exceptions match the Government Office regions which will be the basis for the regional tier.”323 However, the problem remains that the conceptualisation of the regional role is only partially, and vaguely, outlined. In essence, as currently defined, the regional tier is ‘neither fish nor fowl’. As noted above, the lack of specification in the Bill and supporting documentation means that the regional tier could become subject to problems already being experienced at local and national levels and, rather than enhancing resilience, might simply become yet another bureaucratic obstacle to creating an effective response framework. But, within the regional tier there is, in my view, a profound opportunity as well. The process of creating a regional tier, if properly managed, could lead to the establishment of a ‘cellular’ framework of emergency response that would provide the entire UK with a robust, flexible, interoperable and interdependent system of emergency planning and response. It will also ameliorate the bottom-heavy

321 See Consultation Document, p.23. 322 Ibid. p.23 para. 7. 323 Defence Committee Draft Civil Contingencies Bill 7th Report of Session 2002-3, HC 557, p.17, para. 43.

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emphasis of the present framework and provide support for overstretched local Responders. A cellular response framework (or system) is, in my opinion, the most appropriate for fostering UK resilience to disruptive challenge. Whether the regional tier should be considered as the appropriate organisational location to achieve this end is a critical area for further consideration.

5. The National Tier

I have only a few brief comments regarding the national tier since, in my opinion, key points are clearly expressed in documents CC12 and CC3. In particular, I should like to refer the Committee to paragraphs 5-9 of Document CC12 which lists five main areas of concern relating to the national tier. In short these recommendations are as follows: • The Draft Bill removes the Government duty to have civil contingency plans. This should be

reviewed. • That Central Government should report annually on defence and security in the UK. • The government should review how it transmits intelligence-based information • Central rather than regional government should retain the crucial leadership function in emergency

response • Review and reform of the Civil Contingencies Secretariat, led by a dedicated Cabinet Minister other

than the Home Secretary is required if a strong central government structure is to be put in place. It should be noted that the Draft Bill and its supporting documentation appears to have ignored, rejected or discounted these important and relevant criticisms of the national response framework made, in particular, by the House of Commons Select Committee on Defence in two separate and wide ranging reports on this area of concern since the attacks of 11 September 2001.324

6. Conclusion

That a need exists to update the UK’s legislative framework governing domestic resilience to disruptive challenge is widely recognised. However, in its current form, the Draft Civil Contingencies Bill is, in my view, only a partially successful response to the need to enhance UK resilience. The documentation which accompanies the Bill clearly demonstrates that the Bill team have thought hard about the problems the UK is likely to face and have sought to make use of some appropriate concepts and methods in constructing a new legislative framework. However, as this brief has at least partially illustrated, the analysis contained in the supporting documentation, and the structure of the Draft Bill itself, is fraught with lack of specification, inconsistency and omission. I believe that a number of key areas of concern are inadequately explained by the Bill team. I hope that the comments contained in this brief will be of assistance to the Committee in its deliberations on the Draft Civil Contingencies Bill.

324 Defence Committee Draft Civil Contingencies Bill 7th Report of Session 2002-3, HC 557 and Defence and Security in the

UK, 6th Report of Session 2001-02, HC 518-I.

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Appendix 5: Note by Professor Clive Walker, Specialist Adviser to the Committee INTRODUCTION

This submission was completed in August 2003 and with the benefit of the information provided by the substantial briefing packs sent by the Clerks to the Committee. Therefore, many pertinent arguments about the Civil Contingencies Bill have already been submitted to the Joint Committee. There is no purpose in repeating them here, so this submission will be confined either to arguments which in some way advance or refute arguments made previously or are wholly new points not made elsewhere. The submission is divided into three. In this first part will be considered the most basic questions – the need for legislation at all and the strategy adopted, assuming legislation is to be forthcoming. In the second part, attention will be turned to issues of process and the third part concentrates upon points of substance. Throughout, attention will be paid to the principles on which the legislation should rest, so that the critique is normative as well as factual. There is a strong case for the reform of laws on civil contingencies. The reasons for this assertion are as follows. First, most of the attention during the past thirty years has focused on the potentiality or actuality of terrorism. The relevant legislation has taken a variety of forms, but expansion and expansion seem the inevitable concomitants to this form of law. Current versions are set out in the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001. These Acts are currently under scrutiny from a number of sources, and the Civil Contingencies Bill is not the appropriate site to take over that task. However, it should be realised that the laws against terrorism are about the prevention, investigation, detection and punishment of terrorists. They do not address, save for a few aspects,325 the impact of terrorism on the community. Second, the existing legislation which is the predominant forerunner to the Civil Contingencies Bill, the Emergencies Powers Act 1920 and the Emergency Powers Act 1964, section 2, is unduly restricted. The 1920 Act concentrates upon industrial strikes, while the 1964 Act assumes that it is the military which will deal with emergencies, and so fails to take account the capabilities and duties of other public services. Third, the Civil Defence Act 1948 is now little more than an anachronistic empty shell. Planning for major nuclear attack by foreign powers has been overtaken by other priorities and legislation should be more flexible to cope with the changed situation. Whilst the case for legislation is strong, it is less certain that there should be one, all-encompassing Act to cover most types of future legislation. In fact, terrorist emergency has already been in part considered, and there are other examples of this kind such as legislation dealing with essential services or agricultural or industrial disasters. Examples include the "Seveso Directives"326 (the Control of Industrial Major Accident Hazards Regulations 1984327) or the Food and Environment Protection Act 1985. Under the latter, for example, section 1 provides a power to make emergency orders (which must be approved by Parliament within 28 days), and under section 2(3) the Minister may give "any person such directions as appear...to be necessary or expedient" for the purpose of preventing human consumption of the contaminated food. The Act also expressly sets out the role of the Navy in fisheries protection. Other relevant legislation includes the Energy Act 1976, the Water Industry Act 1991, the Animal Health Act 2002. The New Zealand Law Commission has considered "the difficulty of framing legislation that will, on the one hand, confer sufficient powers to deal with every conceivable situation that might have the character of a "national emergency", and, on the other, prevent the invoking of drastic powers by executive fiat in a situation where that is not justified".328 The resultant First Report on Emergencies of 1990 and Final Report on

325 One exception might be the use of cordons under the Terrorism Act 2000 s.33. 326 82/501/EEC (OJ No.L230 5.8.82 p.1), 87/216/EEC (OJ No.L85 28.3.87 p.36), 88/610/EEC (OJ No.L336 7.12.88 p.14),

96/82/EC (OJ L 10, 14.01.97). 327 S.I. No. 1902. See: Hilliard, L., "Local government, civil defence and emergency planning (1986) 49 Modern Law Review

476, at 483-6. 328 Loc. cit., p. 11.

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Emergencies in 1991329 centrally recommended that when emergency powers are required they should be conferred in "sectoral legislation" - legislation deliberated upon and designed in advance of the emergency and tailored strictly to the needs of each particular kind of emergency.330 This approach was felt to be preferable either to vague prerogative grants of power or last-minute emergency legislation, in respect of which:331

“The choice will be between legislation carefully prepared in advance, conforming to the principles and safeguards...and hastily drafted legislation conferring wider powers than are necessary and omitting appropriate protections against abuse. Moreover, New Zealand and overseas experience suggests that emergency legislation passed in haste is likely to remain on the statute book long after its immediate purpose has been served”.

Though the subtlety of having permanent laws available but not necessarily active may be lost on some,332 there are several advantages flowing from this approach. The most important is that it can reduce the dangers of the passage of badly designed and dangerous emergency laws, so long as it contains within it mechanisms for continued scrutiny. Second, one can seek to build upon the experience of permanent legislation and to impose effective scrutiny. This experience of the Prevention of Terrorism Acts prompted United States Supreme Court Justice Brennan to comment that:333

“Prolonged and sustained exposure to the asserted security claims may be the only way in which a country may gain both the discipline necessary to examine asserted security risks critically and the expertise necessary to distinguish the bona fide from the bogus.”

The recommendation of a sectoral approach has not been implemented in pure form in New Zealand. The First Report on Emergencies was largely implemented by the Defence Act 1990 which had already been drafted as the replacement for the Defence Act 1971.334 A new, more tightly regulated Civil Defence Act was proposed by the Commission to replace an existing Act of 1983.335 In the event, the Civil Defence Emergency Management Act 2002 provides for regional, local and national planning and management structures and policies across a broad range of potential emergencies without distinction. With over 120 sections, the Act is far more comprehensive and informative than the Civil Contingencies Bill At the same time, there is more specialised legislation, such as the Biosecurity Act 1993 to deal with "Public Welfare Emergencies".336 Though the Canadian Emergencies Act 1988 likewise caters comprehensively for different emergencies under one title, those different emergencies are identified and not treated monolithically. The Act deals successively with public welfare emergencies, public order emergencies, international emergencies and war emergencies. The Act is set out in Appendix III and is again far more comprehensive and informative than the Civil Contingencies Bill and possibly also the Civil Defence Emergency Management Act 2002. The first lesson from a sectoral strategy for emergency laws might be the worth of pre-emergency legislation. This point will be considered in Part 2 of this submission. It is there argued that such a strategy might avert in part the shortcomings of panic legislation passed at the time of the emergency, which is likely to be badly structured and inadequately principled as to initial invocation, subsequent use and operational demise. A second lesson from the sectoral approach seems to be the need for a matrix of legislative responses which can address different types and different levels of emergency. In this way, the State's response can be predictable and effective but, at the same time, will be regulated whatever direction it takes. This aspect of the

329 New Zealand Law Commission Report No. 12, First Report on Emergencies (Wellington, 1990); Report No. 22, Final

Report on Emergencies, (Wellington, 1991). 330 Final Report on Emergencies, p.x. 331 Ibid., para. 4.12. 332 see Whitty, N., Murphy, T., and Livingstone, S., Civil Liberties Law (Butterworths, London, 2001) p.126. 333 “The American experience”, in Shetreet, S., Free Speech and National Security (Nijhoff, Dordrecht, 1991). 334 Ibid. See p.1-2. For the background to the Defence Act 1990, see Robertson, B., "The Defence Act 1990 and Military

Assistance to the Civil Power" (1991) 14 New Zealand Universities Law Review 254. 335 Ibid., para. 9.80. 336 Ibid., para 8.5.

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sectoral approach may paradoxically encourage inter-agency planning and co-operation which cut across the boundaries of the different sectors. An example is given by the New Zealand Law Commission:337

“In practice the immediate response to an emergency or disaster arising from a natural hazard will come from the police, the fire service and health services, as well as from regional councils, territorial authorities and concerned government departments. At the point that they are unable to mount an effective response Civil Defence will be involved.”

In this way, it is recognised that Civil Defence personnel and powers may be used in other sectors if the designated personnel proves inadequate - a necessary weakening of the sectoral principle.338 But at the same time, "civil defence participation could ensure that proven systems for inter-agency co-operation were in place".339 One may again compare the requirements for inter-agency planning, co-ordination and exchanges in the U.K. - it may happen from place to place and time to time,340 but it is not legislated for in the same way as in New Zealand, where there is not only now the Civil Defence Emergency Management Act 2002 but an appointed Director of Civil Defence Emergency Management advising the Ministry of Civil Defence and Emergency Management and developing the National CDEM Plan, technical standards and guidelines.341 Equally positive steps towards the facilitation of inter-agency civil contingencies co-ordination and planning have been taken in Canada, where an official agency, the Office of Critical Infrastructure Protection and Emergency Preparedness (OCIPEP, the successor in 2001 to Emergency Preparedness Canada),342 has a duty to further these activities under the terms of the Emergency Preparedness Act 1988, which also designates a Minister Responsible for Emergency Preparedness and obliges all Federal Ministers to develop contingency plans. Questions arising from this debate include: • Whether the Civil Contingencies Bill is the appropriate strategy to deal with future emergencies and

crises or whether sectoral legislation is either preferable or at least necessary in addition. • Whether, given that there is in effect already some sectoral legislation (dealing with terrorism and

emergency services) there is a deficiency in the Civil Contingencies Bill in that it contains no permanent and proactive central co-ordination mechanism equivalent to, say, OCIPEP.343 This point about the absence of a central civil contingencies agency has been made already in several submissions, including that of the Defence Select Committee.344 However, the Canadian legislation provides a ready and developed model which should be considered further (the New Zealand model is also worthy of scrutiny but has a short track-record). It is set out in full in Appendix II. Such a body could replace the less transparent and less ambitious Civil Contingencies Secretariat and could also deliver other goals set by the Defence Select Committee such as annual reports and the sharing of information between agencies.345 It would also help to determine government responsibility. At present there is confusion as between the Cabinet Office and the Home Office. It may, of course, also have more tangible duties, such as to set levels and standards for training and protective measures such

337 Ibid., para. 8.65. See also Final Report, paras. 9.6 and 9.7. 338 See ibid. para.9.20. 339 Ibid. para. 8.76. 340 The central government's co-ordinating agency is the Cabinet Office's Civil Contingencies Secretariat. See: Jeffery, K., and

Hennessy, P., States of Emergency: British governments and strikebreaking since 1919 (Routledge & Kegan Paul, London, 1983) chap.8; Campbell, D., War Plan UK (Burnett Books Ltd., London, 1982); Laurie, P., Beneath the City Streets (Granada, London, 1983); Hennessy, P., "Whitehall contingency planning for industrial disputes" in Rowe, P.J., and Whelan, C.J. (eds), Military Intervention in Democratic Societies (Croom Helm, London, 1985).

341 For details, see its World Wide Web pages at: http://www.mcdem.govt.nz/memwebsite.nsf. 342 For details, see its World Wide Web pages at: http://www.ocipep.gc.ca/home/index_e.asp. The authority for military aid is

granted by the Emergencies Act 1988 Part XI. For the background, see McDonald Commission Report of the Commission of Inquiry concerning certain activities of the Royal Canadian Mounted Police, Freedom and Security (2nd Report, Ottowa, 1981).

343 Note also in the USA the Federal Emergency Management Agency which is established under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 USC s.5121). See further the document submitted by the BIICHR and Bentz, J.A., “The National Response Plan” and “Government and voluntary agencies” in Ghosh, T.K., Prelas, M.A., Viswanath, D.S., Loyalka, S.K., (eds.), Science and Technology of Terrorism and Counterterrorism (Marcel Dekker Inc., New York, 2002).

344 Defence Committee, Defence and Security in the UK (2001-02 HC 518), and Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.24.

345 Defence Committee, Defence and Security in the UK (2001-02 HC 518).

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as vaccines,346 to maintain a certain stock level of rations of food and fuel, to set standards for telecommunications protection and usage,347 for the protection of emergency workers348 and for business resilience within government. The Cabinet Office booklet, Dealing with Disaster, claims that it would not be helpful to have a single agency but then sees the CCS as “pivotal”.349 If that is so, then the rule of law surely demands legal authority and clarity, especially at time of crisis.

PRINCIPLES AND PROCESSES

Principles of process

In this part of the submission, it is intended to set out the principles which should govern laws which deal with emergencies and the processes which should be inserted into the Civil Contingencies Bill in order to ensure that those principles are observed. Perhaps the most important lesson which can be learnt from the considerable experience of anti-terrorism legislation is that the rule of law demands as much clarity in the law before the crisis or emergency arises.350 The broad approach implicit in the Terrorism Act is that there is a continuing need for extensive legislation against political violence now and for ever after. The Anti-terrorism, Crime and Security Act 2001 reinforces that stance, though there are in both Acts “sunset” clauses which ensure that some parts of the legislation must terminate after a set period. Amongst the disadvantages of special laws are that they may be unnecessary (either because of the level of threat of the existence of other powers), there will be abuse of the wide powers and there will be damage to the country’s international reputation.351 Therefore, this claim to a need for a permanently based Civil Contingencies Act should be examined at the outset. It can be justified at two levels. The first level concerns the powers and duties of states. In principle, it is justifiable for Liberal democracies to defend their existence and their values, even if this defence involves some limitation of rights. In the words of one American judge, a democracy is not a suicide pact and measures can be taken against clear and present dangers.352 This point is also reflected in Article 17 of the European Convention of Human Rights:

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

It is also very much the point of the power of derogation from the Convention in time of emergency under Article 15:

“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”

Aside from the power to take action, there is a state responsibility to act against political or paramilitary violence. Each state has a duty, at least in international law, to safeguard the right to life of its citizens (as

346 See the list of “achievements” in the Consultation Paper, para.2.12. Without discussion and external oversight, how is it to

be determined whether these really are “achievements”? 347 Compare the details of the Access Overload Control, Government Telephone Preference Scheme, and the Emergency

Communications Network, which all rightly exist but are wholly beyond public scrutiny: Cabinet Office, Dealing with Disaster (3rd ed., London, 2003) chap.3.

348 Compare in the USA the Occupational Safety and Health Administration, Hazardous Waste and Emergency Response Standard (29 CFR 1910.120). See Lippy, B., “Protecting the health and safety of resilience and recovery workers” in Levy, B.S., and Sidel, V.W., Terrorism and Public Health (Oxford University Press, New York, 2003).

349 Op. cit. paras.1.8, 1.12. 350 See Walker, C., A Guide to the Anti-terrorism Legislation (Oxford University Press, Oxford, 2002) chap.1. 351 Inquiry into Legislation against Terrorism (Cm.3420, London, 1996) paras.5.6-5.9. 352 Terminiello v. Chicago (1949) 337 U.S. 1 at p.37 per Douglas J.

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under Article 2 of the European Convention). In addition, states should more generally ensure the enjoyment of rights and democracy (under Article 1).353 It is therefore established that states can and must take protective action against activities which seriously threaten the well-being of its citizens or its democracy.354 It follows that recent United Kingdom governments have been correct to reject the call, inspired by events in Northern Ireland, “No emergency, no emergency law” (Committee on the Administration of Justice, No Emergency, No Emergency Law (Belfast, 1995)). Assuming a new model of legislation, a stance of “Break glass in case of emergency legislation” is to be preferred. It is illogical to oppose all conceivable forms of special laws on a platform of concerns for human rights. Rather our collective concern for human rights should lead us to the conclusions that we should do our utmost to protect citizens against disaster. This contingency model of a permanent legislative code reflects the philosophy of constitutionalism and democratic accountability – that the legislature can secure an important input if it can speak in advance in a way which cannot be drowned by the screams of a crisis. There is ample evidence to suggest that governments of wholly different complexions will, in a tight corner, wish to resort to much the same measures and react in much the same ways. Thus, if the legal field is left unattended, the power élite will very soon fill it with architecture which, in the circumstances of an emergency, will be rather ugly. One cannot coherently complain about “panic” legislation but at the same time deny to the state the principled and refined means to defend itself and to allay its genuine fears (and often those of the majority of the general public and in Parliament). It is foolish not to plan for contingencies in this way, especially as the planning process can allow the legislature to have its say. This preferred stance reflects what the New Zealand Law Commission called sectoral emergency laws - legislation carefully tailored in detail to respond to each type of emergency, as discussed in Part 1 of this paper.355 The main danger associated with the permanent availability of special laws is the inclination towards overuse - that there will be too much smashing of the glass to take out the special laws and they will be utilised in ways which are inappropriate. There must be an adherence to limiting principles which reflect the values of individual rights,356 constitutionalism (respect for the rule of law and proportionality between emergency and measures used) and democratic accountability and review. As a result, “The true test of the viability of any legal system is its ability to respond to crisis without permanently sacrificing fundamental freedoms”357 One may ask next how we can be sure that the powers will adhere to these standards? For example, how can we be sure that Civil Contingency Bill powers are only triggered by serious threats, are proportionate to them, and will end when the serious threat has dissipated either through the efforts of the special measures or otherwise? Three procedural safeguards should be incorporated. The first feature is to make debates about the legislation whenever it is invoked, especially in Parliament, more principled and informed and less emotional. This process could be aided by stating explicitly some of the desirable limiting principles adduced earlier. So, for each part of the special Act there should be expressed criteria by which to judge its value or dispensability and its proportionality so that there can be a distinct and informed assessment and vote on each part. It might also be suggested that regulations be subject to a sunset clause, so that there is a debate in full and de novo after a set time, such as is required for part VII of the Terrorism Act 2000. The next safeguard is to enforce observance of these preconditions. This vigilance should be undertaken not simply by Parliament in debate but also by the mechanism of a joint committee, the establishment of which could be triggered by any invocation under the Civil Contingencies Bill and which would investigate and report on any proposed institution of the legislation, its working whilst in force, its renewal and its compatibility with international obligations. The third restriction is that, once invoked, the actual application of each special law should be subjected to judicial control so far as possible. Judicial review is distinct from the second safeguard as it concentrates more on the individual rather than the collective, though compatibility with the European Convention on Human

353 This point is also reflected in the view of the Joint Committee on Human Rights, Scrutiny of Bills and Draft Bills (2002-03

HC 1005) para.3.4. 354 This conclusion was also reached by the Inquiry into Legislation against Terrorism (Cm.3420, London, 1996) para.5.15. 355 Report No. 12, First Report on Emergencies (Wellington, 1990); Report No. 22, Final Report on Emergencies, (Wellington,

1991). 356 See especially Council of Europe, Guidelines on Human Rights and the Fight Against Terrorism (Strasbourg, 2002). 357 Lee, H.P., Emergency Powers (Law Book Co., Sydney) (1984) p.ix. See further Hope Report, Royal Commission on

Intelligence and Security (4th Report PP. 249 (Cth) (Canberra, 1977).

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Rights under section 4 of the Human Rights Act 1998 does veer more towards the latter. It is not expected that judicial review will have more than marginal impact. There is much evidence that the courts are usually indulgent of the uses of emergency powers,358 and the only reported successful challenge to emergency regulations occurred in Smith v Wood,359 concerning the prosecution of union official for threatening to withdraw safety cover at a coal mine, a prosecution depending on a regulation which was unlawful as it effectively made it an offence to take part in a strike. Civil libertarians can only hope to secure the principles of constitutionalism and democratic accountability if they confront, rather than ignore, future possibilities of emergency and apply to them all possible mechanisms of governance - executive, legislative and judicial. The simplistic repeal of all emergency laws abnegates the influence of the legislative and judicial branches and gifts absolute power to the executive, making the smash and grab of new powers an even greater danger than the precipitate smashing of glass to get at well-conceived provisions already behind the glass. The alternative to principled security laws is to trust the Home Secretary to design his own laws and to produce them from his secret filing cabinet at a time when everyone (Parliament, the media and the public) will be too frightened to listen to civil liberties pleadings. Better to encourage a vibrant and inclusive democracy which can try to discern the difference between an over-weaning executive and a measured response to a measured assessment of danger.

Specific comments and recommendations on process

Much of the strategy for responding to crisis in the Civil Contingencies Bill seems to be focused at the local and regional level – that level is “the building block”.360 In principle, this approach is sensible since crisis response requires swift and flexible reaction and so inevitably demands local structures already in theatre and without the necessity to await central orders. However, the appointment of the Emergency Coordinators and Regional Coordinators in section 22 raise issues about democratic accountability.361 These concerns may be lessened in the case of the non-English Emergency Coordinators where one can conceive a direct link to a devolved administration, a link which seems to be encouraged by the operation of section 26 (consultation with devolved administrations about regulations). But it may be asked: • What is the structure of accountability for regional coordinators. They must answer upwards to a

Minister. But is there meant to be any downward accountability? • Why is there no requirement equivalent to section 26 for England? A simplistic answer is, of course,

that there is no devolved authority or authorities for England. But it would be possible to set up for the purposes an ad hoc council consisting of representative from each local government area affected by the emergency.

The requirement in section 19 of the Human Rights 1998 for a Minister to make a statement of legislation in regard to primary legislation do not apply to secondary legislation. But in the case of the Civil Contingencies Bill, many regulations may be far wider in terms of their impact on rights than ordinary primary legislation. • It is suggested that the section 19 requirement should equally apply to regulations issued under the

Civil Contingencies Bill. Though the short history of section 19 has not been a happy one, one should seek to apply all possible safeguards.

PRINCIPLES AND SUBSTANCE

Principles of substance

An examination of the substance of the contents of the Civil Contingencies Bill will utilise principles already adduced in relation to process, including respect for rights, constitutionalism and democratic accountability. In addition, laws must in substance achieve effectiveness (achieve their aims), economy (do not take up unnecessary resources) and efficiency (provide cost-effective solutions to problems).

358 See Walker, C., “Constitutional governance and special powers against terrorism” (1997) 35 Columbia Journal of

Transnational Law 1. 359 (1927) 43 TLR 178. 360 Cabinet Office, Consultation Document (Cm.5843, London, 2003) para.2. 361 It is realized of regional commissioners that the concept derives from models going back to 1925 and first used in 1926.

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Specific comments and recommendations on substance

Fundamental to the legislation is the triggering concept of “emergency” in clauses 1 and 17. The following issues might be considered: • The most controversial aspect of the new definition would appear to be the extension compared to the

1920 Act version of a definition (in section 1(1)) in terms of the essentials of life for the community to include also the essentials of life for the government, as stated in clauses 1(1)(c) and 17(1)(c). One is reminded here of debates about the meaning of “subversion” in section 1(2) of the Security Service Act 1989 (“actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means”), where the concern was likewise to distinguish threat to the political interests of the government from the threat to the more public trust interests of the government. The current formulation in the Civil Contingencies Bill prompts the criticism that, “In Britain, the idea of ‘civil’ defence has been turned on its head. Home defence is about the protection of government – if need be, against the civil population.”362

• Questions arise concerning the relationship between the ability to declare an emergency on a regional basis and the wording of Article 15 of the European Convention on Human Rights, which envisages an emergency threatening the life of “the nation”. Of course, not every invocation of the Civil Contingencies Bill will require resort to a derogation under Article 15. Nor is it requirement for Article 15 that the emergency and emergency powers must be national – most derogations since 1951 within the United Kingdom have been confined to the region of Northern Ireland. Nevertheless, the effect must be that a different range of regulations are possible when a localised crisis affects the national position and a localised crisis which does not. This should perhaps be reflected in the Bill to avoid error and to ensure due consideration.

• For all the criteria, there is no reference to any requirements of necessity or proportionality. In this way, it should be specified for all triggering reasons that it is reasonably believed that (i) the use of powers and resources normally available without the invocation of the Civil Contingencies Bill will not be sufficient to deal with the emergency and (ii) that the invocation of the Bill will be a proportionate response to the emergency. These requirements should apply to clauses 1 and 17, though there is some attempt already to reflect necessity in clauses 18(1)(b) and 21(4)(e) as a condition to making Part 2 regulations. As a result, the idea of the “triple lock” in the Consultation Paper363 becomes more than rhetoric364 and should certainly not be left as a matter for the government to consider (or not) at will.365 These formulations could be very significant in dealing with farm animal disease. If the Animal Health Act 2002 is sufficient to deal with an emergency, the effect would be that it should be used in priority to the Civil Contingencies Bill. The further effect would be that compensation is then payable for sure.

As well as questions about the over-inclusiveness or under-inclusiveness of the statutory definitions in clauses 1 and 17, a number of questions may be asked about the relation between the Civil Contingencies Bill and residual common law powers to act in emergencies. The only mention is in Part 1, section 14(5) which refers to the preservation of other statutory powers but does not mention common law. But lurking under the folds of pomp and tradition relating to the Crown are effective and often draconian powers, especially to tackle episodes of crisis. The precise scope of the Crown's powers to intervene in emergencies has been a perennial matter for fierce debate. The disputation has been conducted not only at a theoretical level366 but has occasionally provoked notable legal challenges, ranging from the Seventeenth century controversies, such as the cases of Saltpetre367 and Ship Money,368 to more recent litigation. The contemporary cases amply demonstrate that prerogative powers continue to be vibrantly exercised in response to a wide range of

362 Campbell, D., War Plan UK (Burnett Books Ltd., London, 1982) p.15. 363 para.5.19. 364 As demanded by the Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.64. 365 This seems to be suggestion in the Consultation Paper para.5.20. 366 Evelegh, R., Peacekeeping in a Democratic Society (Hurst, London, 1978); Jeffery K., and Hennessy, P., States of

Emergency: British governments and strikebreaking since 1919, (Routledge & Kegan Paul, London, 1983); Winterton, G., "The Prerogative in Novel Situations" (1983) 99 Law Quarterly Review 407; Greer, S. C., "Military Intervention in Civil Disturbances" [1983] Public Law 573; Peak, S., Troops in Strikes (Cobden Trust, London, 1984); Bonner, D., Emergency Powers in Peacetime (Sweet & Maxwell, London, 1985); Rowe, P.J., and Whelan, C.J. (eds), Military Intervention in Democratic Societies (Croom Helm, London, 1985); Campbell, C., Emergency Laws in Ireland 1918-1925, (Clarendon Press, Oxford, 1994).

367 The Case of the King's Prerogative in Saltpetre (1606) 77 ER 1294. 368 R v Hampden (1637) 3 Cobb.St.Tr. 826.

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perceived emergencies, such as the destruction of oil installations so as to deny them to an invading enemy (the Burmah Oil case369), the banning of trade union membership amongst civil servant engaged in signals intelligence work (the GCHQ case370), the provision of plastic bullet rounds to chief constables in defiance of the wishes of local police authorities (R v Secretary of State for the Home Department, ex p Northumbria Police Authority371) and, finally, the requisitioning of ships at the time of the Falklands conflict.372 It is conceivable that the sponsoring department is relying upon the alleged “general principle in law that statutes do not bind the Crown unless by express provision or necessary implication.”373 In general, the law does tend to immunize the Crown in the way suggested. In Lord Advocate v Dumbarton District Council,374 Lord Keith argued that

“I consider it to be no longer a tenable view that the Crown is in terms bound by general words in a statute but that the prerogative enables it to override the statute. As to the considerations which may be applicable for the purpose of finding a necessary implication that the Crown is bound, it is clear that the mere fact that the statute in question has been passed for the public benefit is not in itself sufficient for that purpose.”

Whilst the use of the prerogative to deal with matters of national security is well-established in the common law, there is also wide agreement amongst observers as to the need for both clarification and reform, the aim of which would be to reflect such hallowed principles of parliamentary democracy as the rule of law and the assertion of checks and balances.375 The present lack of a statutory footing in the U.K. can certainly lead to disputes over when and how the military can intervene in emergencies. To take one illustration, Evelegh, a commentator with the benefit of impressive military experience as well as legal research, asserts that:376

“It is startling to reflect that in strict constitutional theory, a corporal with ten privates in a lorry who happened to drive through Grosvenor Square in London when a crowd of demonstrators had burst through a police cordon and were attacking an embassy, would have not merely a right to intervene and suppress the disorder with lethal weapons if necessary, but an absolute duty to do so, in spite of anyone from the Prime Minister to the senior policeman on the spot telling him not to.”

By contrast, another academic commentator, Greer,377 firmly refutes the suggestion that soldiers have a legal duty to intervene378 but is forced to the observation that "no clear conclusion on these matters can be derived."379 More positively, Greer suggests that:380

“It seems preferable that this uncertainty should be clarified through democratic processes in advance of such intervention, i.e. an informed public debate followed by legislation, rather than

369 Burmah Oil Co Ltd v Lord Advocate [1965] AC 75. 370 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. See: Lee, S., "G.C.H.Q.: Prerogative and

public law principles" [1985] Public Law 186; Wade, H.W.R., "Procedure and prerogative in public law" (1985) 101 Law Quarterly Review 180; Walker, C., "Review of the prerogative" [1987] Public Law 62.

371 [1989] Q.B. 26. See Benynon, H.J., "Prerogative to supply plastic baton rounds and C.S. gas to the police" [1987] Public Law 146; Bradley, A. W., "Comment" [1988] Public Law 298.

372 Requisitioning of Ships Order, 1982 (SI No.1982, p1693). See Turpin, C., British Government and the Constitution (2nd ed., Weidenfeld & Nicolson, London 1990) pp. 383-4.

373 HL Debs vol.613 col.241 16 May 2000, Lord Bach. 374 [1989] 3 W.L.R. 1346 at p.1360; see also Attorney-General v Hancock [1940] 1 KB 427; re Lockerbie Air Disaster (1992)

The Times 20 May. Compare Terrorism Act 2000 s.105. 375 The case for reform of national security laws in general and the principles upon which it should be based are exhaustively

examined by Lustgarten, L., and Leigh, I., In From the Cold (Oxford University Press, Oxford, 1984), Part V. See also: Royal Commission on Intelligence and Security, 4th Report (Australian Government Publishing Service, Canberra, 1977) Vol.1, C, paras.122, 123; Commission of Inquiry concerning Certain Activities of the RCMP, Second Report: Freedom and Security under the Law (Ottowa, 1981) Pt.V, chap.4 para.2.

376 Op. cit., p. 8. 377 Loc. cit., p.591. 378 Loc. cit., p.595. 379 Ibid., p.599. Any conclusion must also take account of the powers to intervene derived from the Criminal Law Act 1967 s.3

or of the duties in common law of public officers (R v Dytham [1979] Q.B. 722; R v Bowden [1995] 4 All ER 505; Nicolson, D., "The Citizen's Duty to Assist the Police" [1992] Criminal Law Review 611).

380 Ibid., p.599.

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merely leaving the matter either to the courts to settle in the legally obscure aftermath or to civil servants to determine behind the closed doors of the Ministry of Defence.”

It is proper that there is concern. The deployment of the military outside their wartime roles must always be a matter of public interest, if not controversy. However, it is not the wartime/peacetime distinction per se that is in issue. Constitutional concern arises through what might be termed the "democratic deficit" - that troops can roam the streets without effective political accountability either locally or nationally and without effective control (political, legislative or judicial) over their actions either locally or nationally. The deficit becomes most acute when the soldiers are ordered to engage in any activity under the heading of military aid to the civil powers ("M.A.C.P.") (maintaining or restoring public order)381 which involves contact with civilians in a confrontational or coercive relationship, though even the operation of troops in aid to the civil community ("M.A.C.C.") (for example natural disaster or civil emergency relief) has the potential for contention. From this debate, it may be concluded that • It would be helpful to clarify the roles of the military and to set them out on a statutory basis in a new

Defence Act.382 Any reform process must involve the injection of constitutional precepts of both a substantive and a structural kind.383 It should: (i) specify the legitimate/illegitimate uses of military intervention (the principled parameters); (ii) provide a clear basis in detailed law for intervention and for the termination of intervention; (iii) clarify the chain of command; (iv) specify the powers available to soldiers which then arise; and (v) ensure accountability to democratic and judicial oversight.

• At very least, the relationship between the Civil Contingencies Bill and residual common law should be explored.

Two questions arise in regard to the list of Category 1 and 2 Responders in clause 2 and Schedule 1: • Why is there no need for the appearance in Category 1 of national organisations (leaving aside the

failure to consider central government departments or even their regional offices, as already mentioned)? Examples include the Security Service and also the National Criminal Intelligence Service and the National Crime Service (the latter actually being derived from regional police squads). Only the British Transport Police is mentioned.

• Should Category 2 include principal suppliers of petroleum products? By clause 16, Part 1 is applied only to England and Wales. It would surely be desirable in the context of an emergency to avoid different legal sources.384 The list of exceptions to the power to make regulations in clause 21(4) should mention all those rights which are effectively absolute in the European Convention on Human Rights, including the right to life (Article 2), the right not to be tortured (Article 3), the right not to be subjected to forced labour (Article 4, which is wider than clause 21(4)(a)), the right to a fair trial (Article 6) and the right not to be subjected to retrospective penalties (Article 7).385 Without such mention, it is difficult to see how the claim that the Bill is compatible with the European Convention on Human Rights386 is easily sustainable, since powers to breach the Convention are granted. It might also be useful to mention the requirements of international humanitarian law. The level of Parliamentary scrutiny under clause 24 is inadequate to achieve democratic accountability.387 Any royal proclamation (clause 18) or emergency declaration (clause 19) must be made subject to a

381 See Bonner, D., Emergency Powers in Peacetime, (Sweet & Maxwell, London, 1985) chap.5; Rowe, P., Defence: The

Legal Implications (Brassey's Defence Publishers, London, 1987) chap.4. 382 See Walker C., and Reid, K., "Military aid in civil emergencies: lessons from New Zealand" (1998) 27Anglo-American Law

Review 133. The idea is rejected by the Consultation Paper (para.37) without argument. 383 Kay, R.S., "Substance and structure as constitutional protections" [1989] Public Law 428, at 430-1. 384 The plans in Scotland and Northern Ireland may already be different: Defence Committee, Draft Civil Contingencies Bill

(2002-03 HC 557) para.53. 385 Compare the more extensive list at Joint Committee on Human Rights, Scrutiny of Bills and Draft Bills (2002-03 HC 1005)

para.3.31 and see also para.3.35. 386 Consultation Paper, para.5.30. 387 See Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.73.

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substantive vote rather than simply notification. Likewise, regulations should be subject to the affirmative procedure (subject to urgency). In terms of ensuring respect for human rights, clause 25 stands out as a startling departure from accepted standards the need for which should be “compelling”.388 The accepted standard in this case is that only Parliament, through the medium of primary Acts, has the sovereign authority to pass legislation which is immune from possible striking down, though it is expressly subjected to the possibility of a declaration of incompatibility (Human Rights Act 1998, section 4) as if primary law. The Joint Committee on Human Rights expresses concern about this provision.389 It is here recommended that • In the light of the arguments given by the Joint Committee on Human Rights, it would be undesirable

to pass clause 25 in its present form. It sets a dangerous precedent which is not only inimical to the principle of rights but also to the principle of democratic accountability. Parliament is capable of passing legislation in an emergency (for example the Criminal Justice (Terrorism and Conspiracy) Act 1998 appeared and was passed within days in late August 1998).

• Additional to the argument, it might be suggested that a limited procedural change could be made to the power to grant remedies under section 8 of the Human Rights Act 1998. For example, the relevant court could be required to stay any remedial order (i) until the date for appeal has passed and no appeal has been made; (ii) if an appeal is made, then the appeal court should have a presumptive requirement to stay the order of the lower tribunal. At the same time, it must be remembered that such a special exception was not considered necessary in connection with challenges to detention without trial under section 30 of the Anti-terrorism, Crime and Security Act 2001.

The other vital issue in relation to rights concerning the protection of rights relates to the restrictions in clause 21(4). One uncertainty is whether the relevant provisions rule out detention without trial. The explanatory notes suggest that the Civil Contingencies Bill has this effect, but this contention has never been confirmed by the courts or accepted by academic commentators who point to a difference between creating an offence punishable without trial and the power of detention without trial which can then be enforced through disciplinary offences tried in the usual way.390 As a result: • It is suggested that detention without trial be specifically excluded in clause 21(4). Such a drastic step

ought to be sanctioned expressly by Parliament. In so far as official act under powers under the Civil Contingencies Bill, there may be a very wide range of officials and a wide range of powers. Especially in the panic of an emergency, there should be some kind of official identity tag which is visible to the public and must be produced on request. The issue of compensation for emergency action against property is left too vague in the regulation-making power in clause 21(3). At very least, there should be a presumption in favour of compensation, so that any attempt to remove that right would have to be explicit and explained. The government has considerable experience through the Pool Re scheme in 1993 onwards for commercial property and the Troika scheme in 2001 for airlines in ensuring that emergency insurance can be offered. Such a scheme should be considered so that insurance might be available through commercial sources, even if it is no longer possible to offer direct government compensation in all cases. Special protection should be given to the protection of means of communication of public information. So, the powers of the authorities to interfere with media such as newspapers should be subject to special restraint. This idea would follow other legislation, such as the Contempt of Court Act 1981, section 10 and the Police and Criminal Evidence Act 1984 section 13. Along the same lines, and with added importance, special importance and immunity from the impact of emergency measures, should be accorded to (i) Members of Parliament for the purposes of transacting the business of Parliament and (ii) members of the judiciary for the purposes of transacting judicial business. Any effort to detain any Member of Parliament or members of the judiciary should be subject to specific approval by Parliament within a certain time.

388 Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.68. 389 Joint Committee on Human Rights, Scrutiny of Bills and Draft Bills (2002-03 HC 1005) para.3.26. 390 Morris, G.S., “The Emergency Powers Act 1920” [1979] Public Law 317 at p.324.

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The apparently full code of draft regulations produced by the Cabinet Office in 2001 under the Emergency Powers Act 1920 is an unremarkable update of the last used version in 1974 and follows a very familiar pattern of interferences with property, controls over public services and utilities, controls over transport, and public order and enforcement measures, as in the last published Emergency (No.3) Regulations 1974.391 As the Cabinet Office states that the Civil Contingencies Bill has “a wider scope than existing legislation”.392 As a result, Parliament is being kept in the dark. The government is seemingly not prepared to indicate what really it has in mind in terms of powers and procedures and will reveal only the outdated portions relating to major industrial disputes. The lack of available information on the contingencies envisaged for forms of WMD attack means that, if ever needed, there will an absence of considered debate by both Parliament and a lack of preparedness on the part of agencies affected.393 One might compare the position in the USA, where responsibilities for 12 Emergency Support Functions under the Federal Response Plan have been prepared and published.394 • It is recommended that the Committee should ask whether corresponding drafts exist under the Bill. It

should ask what approach is being, or will be, taken to the drafting and publication of such draft regulations. It will probably be unwieldy to have just one set of regulations, and it is also that sets of guidelines alongside regulations will be necessary for diverse sectors such as health care and petroleum distribution. The drafts should be published not just for the purposes of Parliamentary deliberation on the Bill but in the interests of open government.395

For the sake of completeness, it would be useful to include within the Civil Contingencies Bill the power to use military resources in the Emergency Powers Act 1964, section 2. Even if, contrary to previous arguments, a more ambitious Defence Bill is rejected, the opportunity should at least be taken to clarify the processes for request, the ensuing powers and the allocation of costs.396

391 1974 SI no.350. In Northern Ireland, see Emergency Powers 1974 SI no.88. 392 Questions for the Bill Team, Appendix 9, question 22. 393 See New Zealand Law Commission, Report No. 22, Final Report on Emergencies, (Wellington, 1991) para.6.79. 394 See Bentz, J.A., “The National Response Plan” and “Government and voluntary agencies” in Ghosh, T.K., Prelas, M.A.,

Viswanath, D.S., Loyalka, S.K., (eds.), Science and Technology of Terrorism and Counterterrorism (Marcel Dekker Inc., New York, 2002). The relevant legislation is the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 USC s.5121). See further the document submitted by the BIICHR.

395 Compare Defence Committee, Draft Civil Contingencies Bill (2002-03 HC 557) para.13. 396 The idea is rejected by the Consultation Paper (para.37) without argument.

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Appendix 6: Note by Professor Clive Walker, Specialist Adviser to the Committee – The Resilience of the Crown The resilience of the Crown

1. The resilience of the office of the Crown is vital to the operation of Part 2 of the Civil Contingencies Bill. The Crown is relied upon to deal with • the proclamations of emergencies (cl.18) • the making of Orders in Council (clause 20) • the requiring of the meeting of Parliament (clause 24) • and the appointment of Secretaries of State and Ministers of the Crown (passim) 2. It follows that it is important to ensure that in any dire emergency, the existence of the Crown in person is assured and that the exercise of Crown powers remains feasible. 3. As regards the existence of the Crown, succession is settled by the Bill of Rights 1689, as amended by the Act of Settlement 1700 and the His Majesty’s Declaration of Abdication Act 1936. The key condition is of course an hereditary relationship, though the foregoing legislation also imposes the conditions that a Roman Catholic is specifically excluded from succession to the throne; nor may the Sovereign marry a Roman Catholic. The Sovereign must, in addition, be in communion with the Church of England and must swear to preserve the established Church of England and the established Church of Scotland. The Sovereign must also promise to uphold the Protestant succession. According to the official royal website (http://www.royal.gov.uk/output/Page389.asp), there are 37 people in line of succession, but one could presumably go further if necessary in line with the rules so specified. When a sovereign dies, or abdicates, a successor is immediately decided according to these rules – there is no interregnum. The coronation of a new sovereign is an important ceremony which confirms to the public the succession (including the promises required). 4. Given the number of available office holders and the ease of transition, the Crown would appear to enjoy a high degree of resilience. The only circumstance which could give rise to difficulty is where a minor (under 18 years) or succeeds to the Crown (section 1) or where the office holder is incapacitated by infirmity of mind or body or (under section 2) is ‘for some definite cause not available’ (being held captive by the enemies of the Crown might be an example). These events trigger the Regency Act 1937. A declaration as to incapacity can be made by any three or more of the Sovereign’s spouse, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice and the Master of the Rolls. No doubt, plans have been considered for such an eventuality from time to time, and the procedure does again secure a fair degree of resilience. 5. In addition under the Regency Act 1937, section 6 (as amended in 1943 and 1953), the sovereign may appoint Councillors of State when suffering from a lesser degree of incapacity or intends to be absent from the realm. The Councillors of State can exercise specified royal functions (except dissolving Parliament or granting titles): Power to delegate royal functions to Counsellors of State 1. In the event of illness not amounting to such infirmity of mind or body as is mentioned in section two of this Act, or of absence or intended absence from the United Kingdom, the Sovereign may, in order to prevent delay or difficulty in the despatch of public business, by Letters Patent under the Great Seal, delegate, for the period of that illness or absence, to Counsellors of State such of the royal functions as may be specified in the Letters Patent, and may in like manner revoke or vary any such delegation: Provided that no power to dissolve Parliament otherwise than on the express instructions of the Sovereign (which may be conveyed by telegraph), or to grant any rank, title or dignity of the peerage may be delegated. 2. Subject as hereinafter provided, the Counsellors of State shall be the wife or husband of the Sovereign (if the Sovereign is married), and the four persons who, excluding any persons disqualified under this section, are next in the line of succession to the Crown, or if the number of such persons next in the line of succession is less than four, then all such persons:

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Provided that, if it appears to the Sovereign that any person who, in accordance with the foregoing provisions of this subsection, would be required to be included among the Counsellors of State to whom royal functions are to be delegated, is absent from the United Kingdom or intends to be so absent during the whole or any part of the period of such delegation, the Letters Patent may make provision for excepting that person from among the number of Counsellors of State during the period of such absence. ..any person disqualified under this Act from being Regent shall be disqualified from being a Counsellor of State. 3. Any functions delegated under this section shall be exercised jointly by the Counsellors of State, or by such number of them as may be specified in the Letters Patent, and subject to such conditions, if any, as may be therein prescribed. 4. The provisions of this section shall apply in relation to a Regent with the substitution for references to the Sovereign of references to the Regent, so, however, that in relation to a Regent subsection (2) of this section shall have effect as if after the word "next," where that word first occurs therein, there were inserted the words "after the Regent". 5. Any delegation under this section shall cease on the demise of the Crown or on the occurrence of any events necessitating a Regency or a change of Regent.” 6. Given that there are around four hundred available members of the Privy Council but no clear rules as to quorum other than the requirement that the monarch (or the regent or councillors of state) must preside, it should never be impossible to arrange for orders in council. The business is in any event purely formal – this successor to the feudal King and Council does little more than record the decisions already taken elsewhere, and members traditionally stand throughout the short meetings. Some secondary legislation is issued in this format for reasons of tradition and status (such as in the case of colonial constitutions or treaty confirmation matters). But the Crown is informed in advance of the business, which affords the usual opportunities to advise, encourage and warn. 7. The Crown appoints Secretaries of State and Ministers of the Crown. There is complete legal discretion to do so under the Royal Prerogative, but, increasingly over the past three hundred years, there has grown a firm convention that the Crown acts on the basis of the advice of the Prime Minister and does not exercise personal discretion to appoint “favourites”. The Crown’s powers are subject to the House of Commons Disqualification Act 1975 and the Ministerial and Other Salaries Act 1975, which set limits to the maximum number of Ministers. Paradoxically, there is greater regulation of Ministers than Secretaries of State by the Ministers of the Crown Act 1975. Ministers can be designated under the Act, thus avoiding the prerogative powers. Most Ministerial offices have been designated by legislation. The office of Lord Chancellor is by contrast an ancient creature of the prerogative and so is the plaything of the Prime Minister’s advice; the Chancellor of the Exchequer is likewise prerogative in nature.

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Appendix 7: Note by Mr Garth Whitty, Specialist Adviser to the Committee Introduction

In the absence of legal expertise I have confined myself to considering the requirement to mount an effective response to ‘disruptive challenges’ and where the draft Bill might benefit from consideration of enhanced or additional elements. There are four criteria against which the draft Civil Contingencies Bill has been assessed: • Necessity • Requirement • Meeting the requirement • Affordability

Is it necessary?

Existing Legislation

While existing legislation has served its purpose it is evident that in the light of existing and emerging threats, increasing technological dependence and associated vulnerability, diminishing individual self-reliance, the culture of self-indulgence at the expense of community welfare, risk aversion and an expectation that ‘others’ will neutralise all uncertainties, there is a requirement for a major overhaul of catastrophic event legislation.

Preparedness Limitations

It is a matter of public record that the preparation for and the management of the response to national and regional emergencies (floods, BSE/VCJD, FMD, the fuel crises, FBU strike) have not always been executed in the most effective way. One of the consequences of this perceived or actual mismanagement has been an increased negative impact rather than the desired mitigation. It seems likely that the shortcomings of current legislation have contributed to unsatisfactory outcomes.

Command and Control

The premise that the senior subject matter expert (SME) is best suited to the command and control of a specific ‘disruptive challenge’ event is not borne out by the record thus far. While leadership and subject matter expertise are not mutually exclusive effective leadership supported by advice from SMEs is essential in ensuring the satisfactory resolution of emergencies. The absence of leadership even in the presence of significant expertise will result in operational failure.

Risks

The risks that we face constitute natural (acts of God) and man-made (accidental/negligent) hazards lacking in intent and man-made (deliberate) threats in which intent is present. These disruptive challenges whether natural or human influenced/instigated threaten ‘normality’ creating uncertainty and impacting negatively on society.

Catastrophic Terrorism

Catastrophic (unconditional) terrorism is manifest in al Qaeda’s enabling objectives – the destruction of Western and non-compliant Islamic governments – to facilitate the realisation of its primary objective – the establishment of an Extremist Islamic Caliphate. Much is made of the UK’s expertise in countering coercive (conditional) terrorism, which is undoubtedly impressive; however the breadth of resources and expertise potentially necessary in the response to coercive terrorism is significantly greater and needs to be legislated

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for. Catastrophic terrorism has also increased the probability of the use of CBRN payloads, digital attacks, multiple vehicle borne improvised explosive devices, man portable anti aircraft weapons and suicide attacks.

9/11

It is a salutary fact that while the modus operandi employed by the 9/11 attackers was novel and the casualty count, psychological impact, economic consequences, foreign policy implications and scale were extreme the physical consequences – crashed aircraft, burning and subsequently collapsed high rise buildings – were not outside the emergency response preparedness parameters. The response was effective because the Category of catastrophic event had been trained for/experienced by Responders, the New York Police and Fire Department were particularly well resourced, there was outstanding leadership in Mayor Guiliano and the citizens of New York demonstrated a high level of resilience. It is only possible to speculate at the outcome of a CBRN attack but it is reasonable to assume, in view of al Qaeda’s record for technological expertise, meticulous planning and execution that it would have resulted in a significantly higher casualty count and extended recovery period.

What is the requirement?

Determining the Requirement

Determining the requirement for ‘disruptive challenge’ event legislation necessitates defining an emergency within the context of the legislation, identification of the generic ‘disruptive challenge’ types and outlining the essential characteristics of an effective response. The detailed response requirement may be established by comparing the probable disruptive challenges (based on historical precedent, identified weaknesses, declared intent of enemies and blue sky thinking) with existing response capability to expose the degree of vulnerability and neutralising response requirement.

Definition

The draft Bill definition: ‘An emergency is an event or situation which presents a serious threat to human welfare …, the environment …, political, economic or administrative stability …, or of the security of the UK …’ fails to identify the point (scale of the emergency) at which it might be expected to trigger the implementation of Emergency Powers. The definition for ‘major emergencies’ in ‘Dealing with Disasters’ usefully states ‘… on such a scale that the effects cannot be dealt with by the emergency services, local authorities and other organisations as part of their normal day-to-day activities.’

Disruptive Challenges

Loss of: • Life • Physical well-being • Psychological well-being • Abode • Livelihood Disruption of: • Food supply • Water • Energy • Communications • Transport • Healthcare • Education • Government • Commerce • Administration

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Contamination of: (including by chemicals, biological agents and radioactive material) • Population • Land • Water • Air • Food • Flora and Fauna • Structures • National herd/flock Flooding Fire Explosions Structural collapse Maritime, rail, road and air catastrophic events Earthquake Climatic conditions

Response Requirements

At the national (strategic) level an effective response to potential ‘disruptive challenges’ requires: Will Clarity – of intent, command and control Legislation Executive Focus Standardisation – of requirement, equipment, performance Resources –financial, equipment, trained personnel Integration Cooperation Public engagement Audit Monitoring, Warning and Reporting Demonstration

Does the draft Bill meet the requirement?

Overview

New legislation to better facilitate an effective response to ‘disruptive challenges’ is long overdue and will be widely welcomed. It is nevertheless essential that the legislation fully meets the requirement and while there is much that is good about the work that has been undertaken there may be scope for further development and consideration in a number of areas.

Devolved Responsibility

While the devolution of operational responsibility to the lowest practicable level is often a sound principle there should be real advantage in doing so and the introduction of additional levels of command and control may cause complications when clarity is required. It is questionable whether when it is necessary to declare an emergency (the trigger point has yet to be defined) local authorities will have the necessary resources to manage disruptive events. An alternative may be the deployment of a forward Regional HQ. It would appear to be advantageous to include the responsibilities of both the regional and national tiers and to define more tightly the responsibilities of the Category 1 and 2 Responders.

Executive Focus

Emergencies most frequently develop into disasters because of the inadequacies of command and control. Confidence in commanders is established before an incident occurs and is dependent on a number of qualities

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the most important of which is leadership but which include a deep understanding, and ideally experience, of the generic principles of the response to ‘disruptive challenges’ (not necessarily subject matter expertise). Considering the wide number of agencies likely to be involved this would seem to demand full-time attention at all levels. It is not clear that the draft bill allows for this. An analogy is to found in the military where individuals who will undoubtedly have a particular specialisation are selected for command appointments primarily for their leadership skills. In these appointments they command operations but receive specialist input from SMEs, the SME, an artillery officer for example does not command the operation because artillery is the key component of that particular operation.

Operational Effectiveness

When a catastrophic event is developing there is an inevitable and proper human tendency toward anxiety and concern on the part of the designated Responders. This can be mitigated by the standardisation of equipment and procedures and the integration of the contributing agencies primarily through the medium of regular training and test exercises (demonstrations not exercises are an important mechanism for public reassurance and enemy deterrence). Operational effectiveness is best overseen by an inspectorate which it is suggested might best be ‘for purpose’ rather than those already established such as HM Inspectorate of Constabulary/HM Fire Services Inspectorate.

Resource Allocation

Resources necessary for the response to ‘disruptive challenges’ should be allocated on the basis of the probability of individual or multiple incidents of a particular Category occurring within a given geographical area and time-frame. There will inevitably be a high level of ‘guesstimating’ of resource requirement but it would seem prudent that the legislation includes the provision for both trained personnel and equipment. It may also be helpful if the expected capability/standard of trained personnel is detailed.

Responder Categorisation

The categorisation of Responders is a sound principle but extension of the existing Category 2 list to accommodate voluntary organisations would appear to provide a level of uniformity. There may also be a case for additionally creating categories 3 and 4. One of the great strengths of the 30 year campaign against Irish Terrorism was the engagement of the public, both the commercial sector and individual citizens, thereby enabling them to provide information that prevented or disrupted attacks, to alert the authorities of the possible presence of explosive device or other suspicious item or activity and to minimise the probability of becoming victims of terrorist action. While the prevailing official view is that to initiate greater public engagement will increase anxiety there is a counter argument based on the premise that an informed and involved society is a resilient society and their inclusion would facilitate mobilisation of the full complement of resources.

Monitoring, Warning and Reporting

To facilitate the earliest possible response to a developing ‘disruptive challenge’ and to mitigate its effect requires an effective monitoring, warning and reporting mechanism.

Is it affordable?

Affordability

Affordability is dependent on an assessment of the level of resources required in light of the probability of disruptive challenges materialising. Nevertheless there is a view that currently the requirement is insufficiently resourced.

Conclusion and Recommendations

It seems entirely appropriate that the draft Civil Contingencies Bill has been published and there is substantial eagerness on the part of the Responder community and the public at large that the Bill be introduced soon. It

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is nevertheless essential that the Bill accurately reflects the requirement and in this regard it is recommended that consideration be given to the following: • Will the introduction of 3 tiers unduly complicate when simplicity is desirable? • Should the Bill include Central Government and Regional responsibilities? • Is the Executive Focus correct? • Should standardisation, integration and an inspectorate be addressed within the Bill? • Should the level of resource allocation be included? • Might voluntary organisations be included with Category 2 Responders? • Should additional categories be created for the commercial sector and individual citizens? • Should a monitoring, warning and reporting mechanism be included?

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Appendix 8: Note by Mr Garth Whitty, Specialist Adviser to the Committee – Military Support Military Support

Military Support is provided to government departments, the civil powers and the civil community under the auspices of MACA (Military Aid to the Civil Authorities). There are four categories of military support potentially available.

Regular Forces

• Dedicated assets – military capability that will be provided on request through the appropriate channels by specialist units. The most obvious example is bomb disposal teams.

• Non-dedicated assets – local or specialist military units that subject to commitments may be available on request.

Volunteer and Reserve Forces

• Dedicated assets – Civil Contingency Reaction Forces of 500 volunteer personnel in each region. Not yet available.

• Non-dedicated assets- local Royal Navy Reserve, Territorial Army and Royal Air Force Reserve units that may be available on request.

Reaction Forces (from SDR: the New Chapter)

• A Reaction Force of, on average, some 500 Volunteer Reserves would be established in each region - in principle giving a total of some 6,000 or so Volunteer Reserves in Reaction Forces nation-wide.

• We would use the Army’s regional brigade areas for this purpose, since this corresponds to the system of Government Offices for the Regions and to the Devolved Administration structure.

• Reaction Forces would comprise only individuals who agree to take on this additional commitment, drawn from all Volunteer Reserve units within the regional brigade area.

• The organisational framework for Reaction Forces would be provided by an existing major Volunteer Reserve unit in each region - most probably a Territorial Army infantry battalion.

• The decision to deploy a Reaction Force would follow a request from the civil authorities for military assistance. A recommendation to deploy a Reaction Force would then be made by the regional military commander with responsibility for home defence and security, who would exercise his judgment as to which of the forces at his disposal, including the Reaction Force but also Regular Forces, best match the requirements of the situation.

• To avoid holding up the deployment of Reaction Forces pending the issue of an appropriate mobilisation order, initial reporting would be on a voluntary basis. To give the Volunteer Reservist the necessary employment protection, the Government would expect to initiate mobilisation procedures after 36 hours, under the Reserve Forces Act 1996.

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genc

y Po

wer

s pro

vide

s. Th

is is

refle

cted

in th

e B

ill it

self.

So

a de

clar

atio

n of

em

erge

ncy

can

only

be

mad

e if

it is

“ne

cess

ary”

to m

ake

regu

latio

ns u

nder

the

Bill

(c

laus

es 1

8(1)

(b) a

nd 1

9(1)

(b))

. Cla

use

21(4

)(e)

pro

vide

s tha

t reg

ulat

ions

may

onl

y in

clud

e a

prov

isio

n w

hich

cou

ld b

e m

ade

by v

irtue

of

a su

bsis

ting

legi

slat

ive

prov

isio

n (f

or e

xam

ple,

the

anim

al h

ealth

legi

slat

ion)

if u

se o

f the

subs

istin

g pr

ovis

ion

wou

ld b

e in

suff

icie

nt

or w

ould

occ

asio

n a

serio

us d

elay

.

2.

Th

ere

wer

e fiv

e st

ates

of e

mer

genc

y be

twee

n 19

70 a

nd 1

973,

but

ther

e ha

ve

been

non

e si

nce.

It w

ould

app

ear

ther

efor

e th

at a

dec

isio

n m

ay d

epen

d on

th

e po

litic

al si

tuat

ion

and

the

attit

ude

of

the

Gov

ernm

ent o

f the

day

. Wha

t wei

ght

does

the

Bill

Tea

m c

onsi

der h

as b

een,

an

d sh

ould

be,

atta

ched

to p

oliti

cal

cons

ider

atio

ns in

pro

clai

min

g a

stat

e of

em

erge

ncy?

Sho

uld

the

mec

hani

sm o

nly

be tr

igge

red

whe

re th

ere

is a

con

sens

us to

us

e it

acro

ss th

e m

ain

polit

ical

par

ties?

Part

2 of

the

draf

t Civ

il C

ontin

genc

ies B

ill g

uard

s aga

inst

gov

ernm

ents

usi

ng e

mer

genc

y po

wer

s in

a di

scre

tiona

ry w

ay. T

he ‘t

riple

lo

ck’ e

nsur

es th

at e

mer

genc

y po

wer

s wou

ld o

nly

be u

sed

in si

tuat

ions

of s

uffic

ient

serio

usne

ss, a

nd o

nly

then

if n

eces

sary

. Th

e G

over

nmen

t will

als

o be

con

stra

ined

by

the

requ

irem

ent t

o se

ek th

e ap

prov

al fr

om P

arlia

men

t of t

he re

gula

tions

(cla

use

24).

The

regu

latio

ns la

pse

seve

n da

ys a

fter t

hey

have

bee

n la

id b

efor

e Pa

rliam

ent u

nles

s eac

h H

ouse

app

rove

s the

regu

latio

ns. T

his e

nsur

es th

at

all P

arlia

men

tary

par

ties w

ill h

ave

the

oppo

rtuni

ty to

scru

tinis

e an

d co

mm

ent o

n th

e G

over

nmen

t’s c

ours

e of

act

ion.

Pr

ovis

ion

is m

ade

(cla

use

24) t

o en

sure

that

, sho

uld

an e

mer

genc

y be

dec

lare

d w

hen

Parli

amen

t is p

roro

gued

or e

ither

Hou

se is

ad

jour

ned,

Par

liam

ent w

ill b

e re

calle

d. T

his s

houl

d en

sure

that

any

dec

lara

tion

of e

mer

genc

y an

d an

y re

gula

tions

are

subj

ect t

o Pa

rliam

enta

ry sc

rutin

y w

ithou

t und

ue d

elay

. (N

ote:

The

unu

sual

ly h

igh

num

ber o

f Sta

tes o

f Em

erge

ncy

betw

een

1970

and

197

3 se

ems l

ikel

y to

hav

e be

en th

e co

nseq

uenc

e of

a

num

ber o

f fac

tors

, rat

her t

han

sim

ply

the

attit

ude

of th

e G

over

nmen

t of t

he d

ay. T

he e

arly

197

0s sa

w a

com

bina

tion

of se

rious

113

emer

genc

ies c

oupl

ed w

ith a

n in

crea

sing

ly in

terd

epen

dent

and

tech

nolo

gica

lly d

epen

dent

soci

ety.

The

ava

ilabl

e le

gisl

atio

n w

as in

man

y ca

ses i

nade

quat

e to

dea

l with

the

natu

re o

f the

em

erge

ncie

s bei

ng d

ealt

with

. A

s a c

onse

quen

ce, t

he 1

970s

saw

a g

row

th in

sect

or sp

ecifi

c em

erge

ncy

legi

slat

ion

whi

ch h

elpe

d to

redu

ce th

e re

lianc

e on

the

Emer

genc

y Po

wer

s Act

192

0.)

3.

Giv

en th

e ab

senc

e of

a d

efin

ition

of a

‘s

erio

us th

reat

’, as

spec

ified

in c

laus

e 1

of th

e dr

aft B

ill, w

hat c

riter

ia w

ould

it b

e m

easu

red

by?

The

term

‘ser

ious

thre

at’ a

s use

d in

subs

ectio

n (1

) of c

laus

e 1

is q

ualif

ied

by su

bsec

tions

(2) t

o (6

). Th

ese

qual

ifica

tions

add

det

ail a

bout

ei

ther

the

caus

e of

eff

ect o

f ser

ious

thre

ats.

A se

rious

thre

at to

, for

exa

mpl

e, h

uman

wel

fare

is il

lust

rate

d by

the

even

ts li

sted

at 1

(2).

W

hile

the

inte

ntio

n of

this

cla

use

is to

def

ine

‘em

erge

ncy’

and

thus

to e

stab

lish

a th

resh

old

belo

w w

hich

a si

tuat

ion

shou

ld n

ot b

e re

gard

ed a

s suc

h, th

e G

over

nmen

t doe

s not

bel

ieve

that

an

over

ly ti

ght d

efin

ition

is se

nsib

le. F

or e

xam

ple

the

refe

renc

e to

loss

of h

uman

lif

e at

1(2

)(a)

cou

ld b

e qu

alifi

ed b

y a

min

imum

num

ber o

f dea

ths t

hat w

ould

hav

e to

occ

ur. P

robl

ems w

ould

aris

e w

hen

palp

able

em

erge

ncie

s did

not

cro

ss in

flexi

ble

thre

shol

ds. D

elay

wou

ld b

e oc

casi

oned

whi

le it

was

asc

erta

ined

whe

ther

an

inci

dent

met

the

rele

vant

thre

shol

d.

(Not

e: m

any

othe

r jur

isdi

ctio

ns h

ave

adop

ted

far l

ess p

reci

se a

ppro

ache

s to

the

ques

tion

of w

hat c

onst

itute

s an

emer

genc

y, re

lyin

g ei

ther

on

not

def

inin

g th

e te

rm o

r usi

ng m

ore

gene

ral l

angu

age

such

as ‘

grav

e an

d im

med

iate

thre

at’ o

r ‘em

erge

nt d

ange

r’.)

4.

The

pow

ers i

n th

e dr

aft C

ivil

Con

tinge

ncie

s Bill

cou

ld b

e ch

arac

teris

ed

as “

one

size

fits

all”

bas

ed o

n w

orst

cas

e sc

enar

ios.

Giv

en th

at th

e C

abin

et O

ffic

e is

pro

posi

ng to

lim

it th

e us

e of

the

pow

ers t

o th

e ar

eas a

ffec

ted

by th

e em

erge

ncy,

wha

t con

side

ratio

n ha

s bee

n gi

ven

to re

stric

ting

the

pow

ers b

y ca

tego

ry o

f em

erge

ncy

tailo

red

to

parti

cula

r em

erge

ncie

s or t

he e

ffec

ts o

f em

erge

ncie

s?

Cla

use

21(1

)(a)

stat

es th

at e

mer

genc

y re

gula

tions

can

be

mad

e on

ly so

far a

s it i

s nec

essa

ry fo

r the

pur

pose

of p

reve

ntin

g, c

ontro

lling

or

miti

gatin

g a

serio

us a

spec

t or s

erio

us e

ffec

t of t

he e

mer

genc

y. T

his h

as th

e ef

fect

of r

estri

ctin

g th

e co

nten

t of e

mer

genc

y re

gula

tions

to

that

nee

ded

to d

eal w

ith th

e em

erge

ncy

at h

and

only

but

allo

ws n

ew p

ower

s to

beco

me

avai

labl

e sh

ould

the

situ

atio

n de

man

d it.

Any

at

tem

pt to

use

em

erge

ncy

pow

ers b

eyon

d th

ose

nece

ssar

y in

a g

iven

situ

atio

n co

uld

be ru

led

to b

e ul

tra

vire

s.

5.

W

hy d

oes f

lood

ing

offe

r acc

ess t

o th

e w

hole

rang

e of

em

erge

ncy

pow

ers,

whe

n on

ly th

e po

wer

to e

vacu

ate

peop

le w

ould

ap

pear

to b

e ne

eded

? W

hy is

the

legi

slat

ion

draf

ted

in su

ch a

gen

eral

m

anne

r tha

t the

re is

no

dist

inct

ion

betw

een

the

pow

ers a

ppro

pria

te to

a

Cla

use

21(1

)(a)

stat

es th

at e

mer

genc

y po

wer

s can

onl

y be

use

d in

so fa

r as i

t is n

eces

sary

for t

he p

urpo

se o

f pre

vent

ing,

con

trolli

ng o

r m

itiga

ting

a se

rious

asp

ect o

r ser

ious

eff

ect o

f the

em

erge

ncy.

If fl

oodi

ng is

the

caus

e th

en o

nly

thos

e po

wer

s nec

essa

ry fo

r dea

ling

with

th

e pa

rticu

lar f

lood

ing

inci

dent

at h

and

are

avai

labl

e. T

he n

eces

sitie

s wou

ld n

ot b

e dr

iven

by

the

type

of f

lood

ing,

but

by

the

spec

ifics

of

the

inci

dent

. N

ever

thel

ess,

the

Gov

ernm

ent w

ould

not

agr

ee th

at th

e on

ly a

ctio

n ne

cess

ary

in th

e ev

ent o

f ser

ious

floo

ding

wou

ld b

e ev

acua

tion

(whe

ther

of p

eopl

e or

ani

mal

s). S

erio

us fl

oodi

ng c

an d

isru

pt w

ater

supp

lies,

pow

er, t

rans

port

and

food

dis

tribu

tion.

Act

ion

mig

ht b

e

114

flood

ed ri

ver a

nd th

ose

appr

opria

te to

sea

flood

ing?

ne

cess

ary

to re

duce

, con

trol o

r miti

gate

the

effe

ct o

f the

floo

ding

, for

exa

mpl

e th

e di

vers

ion

of fl

ood

wat

ers o

r the

ere

ctio

n of

tem

pora

ry

flood

def

ence

s. In

the

afte

rmat

h, sp

ecia

l arr

ange

men

ts m

ight

be

nece

ssar

y to

supp

ort r

ecov

ery.

A

lthou

gh th

e ex

pect

atio

n w

ould

be

that

mos

t of t

hese

cou

ld b

e ac

hiev

ed w

ithou

t rec

ours

e to

em

erge

ncy

pow

ers,

the

mos

t ext

rem

e flo

odin

g si

tuat

ions

mig

ht re

quire

, for

exa

mpl

e, e

mer

genc

y po

wer

s to

requ

isiti

on p

rope

rty o

r res

trict

mov

emen

t. Th

is is

equ

ally

true

of b

oth

coas

tal a

nd fl

uvia

l flo

odin

g. C

oast

al fl

oodi

ng h

as tr

aditi

onal

ly h

ad th

e po

tent

ial t

o ca

use

grea

ter d

amag

e, b

ut

fluvi

al fl

oodi

ng th

reat

ens m

ore

area

s. B

oth

can

and

have

cau

sed

loss

of l

ife a

nd d

islo

catio

n of

ess

entia

l ser

vice

s.

6.

In th

e co

ntex

t of a

nim

al d

isea

ses,

the

only

rele

vant

add

ition

al p

ower

that

the

draf

t Bill

wou

ld o

ffer

ove

r and

abo

ve th

e An

imal

Hea

lth A

ct 2

002

wou

ld a

ppea

r to

be th

e po

wer

to sl

augh

ter a

nim

als w

ithou

t pa

ying

com

pens

atio

n. If

that

pow

er is

to

play

a p

art i

n th

e G

over

nmen

t’s a

nim

al

heal

th st

rate

gy, w

hy w

as n

ot it

incl

uded

in

the

2002

Act

?

Whe

re p

ossi

ble,

an

anim

al h

ealth

em

erge

ncy

wou

ld b

e de

alt w

ith b

y th

e G

over

nmen

t und

er it

s exi

stin

g po

wer

s, up

to a

nd in

clud

ing

the

Ani

mal

Hea

lth A

ct 2

002.

H

owev

er, a

n an

imal

hea

lth e

mer

genc

y m

ight

hav

e a

colla

tera

l im

pact

on

the

natio

nal i

nfra

stru

ctur

e in

an

unex

pect

ed w

ay th

at c

anno

t be

cate

red

for b

y th

e A

nim

al H

ealth

Act

s. Fo

r exa

mpl

e, a

n an

imal

hea

lth e

mer

genc

y m

ight

aff

ect t

he fo

od su

pply

, or n

eces

sita

te m

ovem

ent

bans

. In

such

circ

umst

ance

s rec

ours

e m

ight

be

need

ed to

pow

ers i

n th

e dr

aft B

ill to

add

ress

the

wid

er im

pact

. A

fulle

r exp

lana

tion

of th

e po

licy

on c

ompe

nsat

ion

is se

t out

at a

nsw

er 3

7.

7.

Ther

e ar

e cu

rren

tly p

rovi

sion

s in

stat

utes

su

ch a

s sec

tion

3 of

the

Ani

mal

Hea

lth

Act

200

2 to

pro

vide

the

auth

oriti

es w

ith

emer

genc

y po

wer

s. W

hat c

riter

ia w

ill th

e G

over

nmen

t app

ly in

reac

hing

a d

ecis

ion

to u

se th

e po

wer

s in

the

Civ

il C

ontin

genc

ies B

ill ra

ther

than

in a

noth

er

stat

ute?

Emer

genc

y po

wer

s are

use

d w

hen

ther

e is

a n

eed

for s

peci

al te

mpo

rary

legi

slat

ion.

If th

e si

tuat

ion

can

be d

ealt

with

usi

ng e

xist

ing

legi

slat

ion

spec

ial l

egis

lativ

e m

easu

res w

ill n

ot b

e in

voke

d. C

laus

e 21

(4)(

e) st

ates

that

em

erge

ncy

regu

latio

ns c

anno

t mak

e pr

ovis

ion

of

a ki

nd w

hich

is m

ade

by o

r cou

ld b

e m

ade

unde

r exi

stin

g le

gisl

ativ

e pr

ovis

ion

unle

ss u

se o

f tha

t pro

visi

on w

ould

be

insu

ffic

ient

or

occa

sion

serio

us d

elay

. Thi

s is a

n es

sent

ial e

lem

ent o

f the

‘trip

le lo

ck’.

So in

the

case

of t

he e

xam

ple

in q

uest

ion,

use

of s

peci

al le

gisl

ativ

e m

easu

res w

ould

onl

y be

con

side

red

if th

ose

in th

e A

nim

al H

ealth

A

cts w

ere

dete

rmin

ed to

be

insu

ffic

ient

or t

heir

use

riske

d se

rious

del

ay th

at c

ould

oth

erw

ise

be a

void

ed.

Dec

isio

n to

Use

Em

erge

ncy

Pow

ers

8.

The

Con

sulta

tion

docu

men

t sta

tes t

hat

the

deci

sion

to u

se e

mer

genc

y po

wer

s sh

ould

be

base

d on

thre

e gu

idin

g pr

inci

ples

whi

ch re

pres

ent a

“tri

ple

lock

” ag

ains

t pos

sibl

e m

isus

e –

serio

usne

ss, t

he

need

for s

peci

al le

gisl

ativ

e m

easu

res a

nd

rele

vant

geo

grap

hica

l ext

ent (

p28)

. How

is

this

pro

tect

ion

agai

nst m

isus

e gi

ven

The

“trip

le lo

ck”

is se

t out

exp

licitl

y in

the

draf

t Bill

. Cla

use

17(1

)(a)

stat

es th

at th

e em

erge

ncy

mus

t pre

sent

a “

seri

ous”

thre

at. I

n ad

ditio

n, c

laus

e 21

(1)(

a) p

rovi

des t

hat e

mer

genc

y re

gula

tions

may

onl

y m

ake

prov

isio

n in

rela

tion

to a

“se

rious

” as

pect

or e

ffec

t of t

he

emer

genc

y. C

laus

es 1

8(1)

(b) a

nd 1

9(1)

(b) s

tate

that

a d

ecla

ratio

n of

em

erge

ncy

may

onl

y be

mad

e if

the

use

of e

mer

genc

y re

gula

tions

m

ust b

e ne

cess

ary.

Cla

use

21(1

)(a)

rein

forc

es th

is b

y pr

ovid

ing

that

em

erge

ncy

regu

latio

ns c

an o

nly

mak

e pr

ovis

ion

in so

far a

s tha

t pr

ovis

ion

is n

eces

sary

for t

he p

urpo

se o

f pre

vent

ing,

con

trolli

ng o

r miti

gatin

g a

serio

us a

spec

t or s

erio

us e

ffec

t of t

he e

mer

genc

y.

Cla

uses

18(

2)(b

) and

19(

2)(b

) req

uire

the

decl

arat

ion

of e

mer

genc

y to

stat

e th

e pa

rts o

r reg

ions

of t

he U

nite

d K

ingd

om in

rela

tion

to

whi

ch th

e re

gula

tions

may

hav

e ef

fect

. Cla

use

21(4

)(f)

pro

vide

s tha

t reg

ulat

ions

may

not

rela

te to

any

thin

g in

, or d

one

in, a

par

t or

regi

on w

hich

is n

ot sp

ecifi

ed in

the

decl

arat

ion.

Eve

n w

ithin

the

regi

on o

r par

t spe

cifie

d in

the

decl

arat

ion,

if th

e em

erge

ncy

is o

ccur

ring

115

lega

l eff

ect i

n th

e dr

aft B

ill?

in a

geo

grap

hica

l are

a th

at is

not

aff

ecte

d it

will

not

be

nece

ssar

y, a

nd th

eref

ore

poss

ible

, to

use

emer

genc

y po

wer

s in

that

are

a.

9.

How

wou

ld th

e “t

riple

lock

” cr

iteria

be

appl

ied

in a

cas

e w

here

an

emer

genc

y w

as p

ossi

ble

but n

ot c

erta

in?

For

inst

ance

, in

the

case

of f

lood

ing,

act

ion

need

s to

be ta

ken

whe

n th

ere

are

war

ning

s tha

t wat

ers a

re ri

sing

too

high

, ra

ther

than

whe

n th

ey a

re a

lread

y flo

odin

g.

The

Gov

ernm

ent b

elie

ves t

hat i

t is i

mpo

rtant

that

whe

re p

ossi

ble

risks

shou

ld b

e ad

dres

sed

befo

re th

ey b

ecom

e em

erge

ncie

s. Th

at is

w

hy th

e G

over

nmen

t has

arr

ange

men

ts to

mon

itor a

nd m

anag

e ris

k, a

nd to

scan

the

horiz

on fo

r fut

ure

thre

ats.

Prev

enta

tive

actio

n is

of

ten

take

n –

for e

xam

ple

flood

def

ence

s or i

nocu

latio

n pr

ogra

mm

es.

This

prin

cipl

e of

pre

-em

ptio

n is

als

o tru

e in

situ

atio

ns w

here

an

emer

genc

y be

com

es n

ot ju

st p

ossi

ble

but p

roba

ble

or im

min

ent.

In th

ose

circ

umst

ance

s, th

e G

over

nmen

t will

seek

to ta

ke a

ctio

n as

soon

as p

ossib

le to

pre

vent

the

emer

genc

y ha

ppen

ing

or to

redu

ce it

s im

pact

. In

a se

rious

and

urg

ent s

ituat

ion,

that

act

ion

mig

ht re

quire

the

exer

cise

of e

mer

genc

y po

wer

s. So

in li

ne w

ith th

at o

vera

ll po

licy

aim

, the

B

ill h

as b

een

draf

ted

with

the

inte

ntio

n th

at p

re-e

mpt

ive

actio

n sh

ould

be

poss

ible

. Th

at is

why

cla

use

18(1

)(a)

refe

rs to

‘an

emer

genc

y [th

at] h

as o

ccur

red,

is o

ccur

ring

or is

abo

ut to

occ

ur’.

This

pro

vide

s for

pre

-em

ptiv

e (a

nd in

deed

retro

spec

tive)

act

ion.

And

the

“nec

essi

ty”

test

in c

laus

es 1

8, 1

9 an

d 21

env

isag

es th

at a

ctio

n m

ay b

e ta

ken

whe

re n

eces

sary

to

“pr

even

t” a

n as

pect

or e

ffec

t of t

he e

mer

genc

y.

In th

e ca

se o

f pre

-em

ptiv

e ac

tion

the

‘trip

le lo

ck’ s

till a

pplie

s – th

e ke

y di

ffer

ence

wou

ld b

e th

at th

e ju

dgem

ents

abo

ut se

rious

ness

, ne

cess

ity a

nd e

xten

t wou

ld b

e ba

sed

on a

like

ly ra

ther

than

act

ual i

mpa

ct.

10

.

In th

e ca

se o

f usi

ng p

ower

s und

er th

e dr

aft B

ill fo

r ani

mal

hea

lth o

r flo

odin

g,

the

use

of th

e tri

ple

lock

wou

ld su

rely

m

ean

dela

y. Y

et th

e pr

oble

m in

the

foot

an

d m

outh

epi

dem

ic in

200

1 w

as th

at

exis

ting

pow

ers t

o ba

n an

imal

mov

emen

t w

ere

not u

sed

for t

hree

day

s, th

ereb

y do

ublin

g th

e sc

ale

of th

e ev

entu

al

epid

emic

. If i

t was

nec

essa

ry to

wai

t unt

il th

e tri

ple

lock

cou

ld b

e op

ened

, wou

ld

this

not

cre

ate

furth

er d

elay

and

po

tent

ially

a m

ore

seve

re e

mer

genc

y?

The

Gov

ernm

ent b

elie

ves t

hat t

he ri

ght s

afeg

uard

s sho

uld

be in

pla

ce to

pre

vent

the

mis

use

of e

mer

genc

y po

wer

s. Th

at is

the

purp

ose

of

the

‘trip

le lo

ck’ a

nd th

e co

nstra

ints

in c

laus

e 21

(4).

The

Gov

ernm

ent a

lso

belie

ves t

hat d

elay

s in

taki

ng a

ctio

n sh

ould

be

avoi

ded

whe

reve

r pos

sibl

e. T

hat i

s why

the

draf

t Bill

incl

udes

fall

back

opt

ions

to p

reve

nt d

elay

, suc

h as

cla

use

19 a

nd c

laus

e 26

(4).

A b

alan

ce

has t

o be

stru

ck.

The

tripl

e lo

ck is

inte

nded

to b

e a

sign

ifica

nt h

urdl

e, b

ut it

s req

uire

men

ts a

re fo

cuss

ed o

n ev

iden

ce ra

ther

than

pro

cess

– a

dem

onst

ratio

n of

serio

usne

ss, e

xten

t and

nec

essi

ty. T

he G

over

nmen

t doe

s not

con

sider

that

the

tripl

e lo

ck w

ill re

sult

in a

bur

eauc

ratic

del

ay.

Of t

he th

ree

elem

ents

, ser

ious

ness

and

ext

ent a

re a

key

info

rmat

ion

requ

irem

ent f

or G

over

nmen

t and

evi

denc

e on

thes

e is

sues

wou

ld

alm

ost c

erta

inly

be

avai

labl

e. It

wou

ld b

e po

ssib

le to

est

ablis

h ve

ry q

uick

ly w

heth

er th

ese

test

s wer

e sa

tisfie

d.

Alth

ough

the

nece

ssity

que

stio

n m

ight

seem

mor

e de

man

ding

(and

thus

tim

e co

nsum

ing)

, in

prac

tice

Gov

ernm

ent t

akes

regu

lar l

egal

ad

vice

dur

ing

emer

genc

ies.

Dep

artm

ents

hav

e a

clea

r sen

se o

f the

scop

e of

thei

r exi

stin

g po

wer

s, in

par

t a c

onse

quen

ce o

f the

per

iodi

c pr

oces

s of d

raw

ing

up d

raft

emer

genc

y re

gula

tions

Dep

artm

ents

wou

ld b

e ca

refu

l to

ensu

re th

at th

ey a

cted

with

in th

eir p

ower

s and

w

ould

rais

e an

y co

ncer

ns a

bout

shor

tfalls

– in

deed

this

wou

ld b

e lik

ely

to b

e th

e st

artin

g po

int f

or c

onsi

dera

tion

of th

e us

e of

em

erge

ncy

pow

ers.

116

11.

W

hat c

riter

ia w

ould

Min

iste

rs u

se to

de

cide

whe

ther

or n

ot a

thre

at is

“s

erio

us”

for t

he p

urpo

se o

f cla

use

17(1

)?

The

term

‘ser

ious

thre

at’ a

s use

d in

subs

ectio

n (1

) of c

laus

e 17

is q

ualif

ied

by su

bsec

tions

(2) t

o (7

). Th

ese

qual

ifica

tions

add

det

ail

abou

t eith

er th

e ca

use

of e

ffec

t of s

erio

us th

reat

s. A

serio

us th

reat

to, f

or e

xam

ple,

hum

an w

elfa

re is

illu

stra

ted

by th

e ev

ents

list

ed a

t 17

(2).

W

hile

the

inte

ntio

n of

this

cla

use

is to

def

ine

‘em

erge

ncy’

and

thus

to e

stab

lish

a th

resh

old

belo

w w

hich

a si

tuat

ion

shou

ld n

ot b

e re

gard

ed a

s suc

h, th

e G

over

nmen

t doe

s not

bel

ieve

that

an

over

ly ti

ght d

efin

ition

is se

nsib

le. F

or e

xam

ple

the

refe

renc

e to

loss

of h

uman

lif

e at

17(

2)(a

) cou

ld b

e qu

alifi

ed b

y a

min

imum

num

ber o

f dea

ths t

hat w

ould

hav

e to

occ

ur. P

robl

ems w

ould

aris

e w

hen

palp

able

em

erge

ncie

s did

not

cro

ss in

flexi

ble

thre

shol

ds.

Ther

e is

als

o an

ele

men

t of t

he d

efin

ition

of ‘

serio

us th

reat

’ in

Part

2 of

the

draf

t Bill

that

will

be

left

for t

he p

roce

ss o

f Roy

al

Proc

lam

atio

n (S

ectio

n 18

). A

key

ele

men

t of t

hat p

rocl

amat

ion

proc

ess i

s a d

ecis

ion

that

an

emer

genc

y is

occ

urrin

g. If

a si

tuat

ion

was

fe

lt to

con

stitu

te a

‘ser

ious

thre

at’ t

he o

ther

two

parts

of t

he ‘t

riple

lock

’ wou

ld st

ill h

ave

to b

e sa

tisfie

d be

fore

spec

ial l

egis

lativ

e m

easu

res c

ould

be

used

. (N

ote:

man

y ot

her j

uris

dict

ions

hav

e ad

opte

d fa

r les

s pre

cise

app

roac

hes t

o th

e qu

estio

n of

wha

t con

stitu

tes a

n em

erge

ncy,

rely

ing

eith

er

on n

ot d

efin

ing

the

term

or u

sing

mor

e ge

nera

l lan

guag

e su

ch a

s ‘gr

ave

and

imm

edia

te th

reat

’ or ‘

emer

gent

dan

ger’

.) (S

ee a

lso:

Que

stio

n 3)

12.

W

ould

all

inci

dent

s fal

ling

with

in th

e de

finiti

on o

f maj

or in

cide

nts a

t ann

ex A

of

“D

ealin

g w

ith D

isas

ter”

fall

with

in th

e de

finiti

on o

f “se

rious

” fo

r the

pur

pose

of

clau

se 1

7(1)

? If

not

, ple

ase

expl

ain

the

diff

eren

ce.

The

defin

ition

of ‘

maj

or in

cide

nt’ g

iven

in A

nnex

A o

f ‘D

ealin

g w

ith D

isas

ter’

is: "

A m

ajor

inci

dent

is a

ny e

mer

genc

y th

at re

quire

s the

im

plem

enta

tion

of sp

ecia

l arr

ange

men

ts b

y on

e or

mor

e of

the

emer

genc

y se

rvic

es, t

he N

HS

or th

e lo

cal a

utho

rity

for:

• th

e in

itial

trea

tmen

t, re

scue

and

tran

spor

t of a

larg

e nu

mbe

r of c

asua

lties

; •

the

invo

lvem

ent e

ither

dire

ctly

or i

ndire

ctly

of l

arge

num

bers

of p

eopl

e;

• th

e ha

ndlin

g of

a la

rge

num

ber o

f enq

uirie

s lik

ely

to b

e ge

nera

ted

both

from

the

publ

ic a

nd th

e ne

ws m

edia

, usu

ally

to th

e po

lice;

•

the

need

for t

he la

rge

scal

e co

mbi

ned

reso

urce

s of t

wo

or m

ore

of th

e em

erge

ncy

serv

ices

; •

the

mob

ilisa

tion

and

orga

nisa

tion

of th

e em

erge

ncy

serv

ices

and

supp

ortin

g or

gani

satio

ns, e

.g. l

ocal

aut

horit

y, to

cat

er fo

r the

thre

at

of d

eath

, ser

ious

inju

ry o

r hom

eles

snes

s to

a la

rge

num

ber o

f peo

ple.

" Th

is d

efin

ition

is re

fere

nced

to th

e em

erge

ncy

plan

ning

man

uals

prod

uced

by

the

emer

genc

y se

rvic

es. T

he d

efin

ition

is w

idel

y us

ed b

y th

e em

erge

ncy

serv

ices

, the

NH

S, lo

cal a

utho

ritie

s and

oth

ers.

It is

gen

eral

ly u

sed

in th

e co

ntex

t of l

ocal

ised

em

erge

ncie

s. It

is li

kely

th

at m

ost,

if no

t all,

wou

ld sa

tisfy

the

defin

ition

of e

mer

genc

y in

Par

t 1 o

f the

Bill

. B

ut a

s a lo

calis

ed e

mer

genc

y, it

wou

ld b

e un

likel

y to

be

suff

icie

ntly

serio

us to

trig

ger s

peci

al le

gisl

ativ

e m

easu

res.

If, h

owev

er, t

he

effe

cts d

escr

ibed

abo

ve a

ffec

ted

a re

gion

or g

reat

er a

rea,

that

situ

atio

n co

uld

be ju

dged

to b

e an

em

erge

ncy

for t

he p

urpo

ses o

f cla

use

17(1

).

117

(Not

e: ‘D

ealin

g w

ith D

isas

ter’

is p

ublis

hed

by th

e C

abin

et O

ffic

e, a

nd p

rovi

des g

uide

lines

to a

ssis

t tho

se w

ho p

lan

for e

mer

genc

ies.

It w

as re

vise

d ea

rlier

this

yea

r Th

e cu

rren

t edi

tion

of ‘D

ealin

g w

ith D

isas

ter’

is n

ot in

tend

ed to

be

read

alo

ngsi

de th

e dr

aft B

ill. T

he G

over

nmen

t’s in

tent

ion

is th

at th

e cu

rren

t edi

tion

will

be

with

draw

n on

ce th

e C

ivil

Con

tinge

ncie

s Bill

is e

nact

ed a

nd re

plac

ed b

y a

com

preh

ensi

ve lo

cal r

espo

nder

civ

il pr

otec

tion

docu

men

t whi

ch w

ill b

e th

e ve

hicl

e fo

r the

gui

danc

e un

der t

he B

ill.)

13.

W

ould

any

of t

he e

mer

genc

ies f

or w

hich

pa

ymen

ts h

ave

been

mad

e un

der t

he

Bel

lwin

sche

me

sinc

e 19

83 h

ave

trigg

ered

a u

se o

f the

em

erge

ncy

pow

ers

at P

art 2

of t

he B

ill (i

.e. w

ould

they

hav

e m

et th

e tri

ple

lock

crit

eria

at p

age

28 o

f th

e co

nsul

tatio

n pa

per)

?

A su

mm

ary

of p

aym

ents

und

er th

e B

ellw

in S

chem

e ov

er th

e la

st 1

5 ye

ars i

s atta

ched

as A

nnex

A.

The

emer

genc

ies f

or w

hich

the

paym

ents

wer

e m

ade

wou

ld b

e un

likel

y to

trig

ger t

he u

se o

f em

erge

ncy

pow

ers u

nder

Par

t 2 o

f the

Bill

. W

hile

a n

umbe

r of t

he e

mer

genc

ies w

ere

serio

us, f

ew a

ttain

ed su

ffic

ient

geo

grap

hica

l ext

ent.

Of t

hose

that

mig

ht h

ave,

all

wer

e m

anag

eabl

e w

ithin

exi

stin

g po

wer

s ava

ilabl

e to

resp

onde

r org

anis

atio

ns.

14.

W

ould

the

Doc

klan

ds o

r Man

ches

ter

bom

bing

s in

1996

, the

fuel

cris

es in

20

00, o

r Sep

tem

ber 1

1th h

ave

trigg

ered

a

use

of th

e em

erge

ncy

pow

ers a

t Par

t 2 o

f th

e B

ill (i

e w

ould

they

hav

e m

et th

e tri

ple

lock

crit

eria

at p

age

28 o

f the

co

nsul

tatio

n pa

per)?

Any

con

side

ratio

n of

whe

ther

the

emer

genc

y po

wer

s ava

ilabl

e in

the

draf

t Bill

mig

ht h

ave

been

use

d ha

d th

ey b

een

avai

labl

e in

the

past

sh

ould

focu

s on

the

tripl

e lo

ck, j

ust a

s any

futu

re u

se w

ould

do.

Situ

atio

ns w

ould

hav

e to

be

serio

us, t

hey

wou

ld h

ave

to re

quire

spec

ial

legi

slat

ive

mea

sure

s, an

d th

ey w

ould

hav

e to

a g

eogr

aphi

cal a

rea

as la

rge

as a

regi

on o

r gre

ater

. In

ligh

t of t

hose

requ

irem

ents

, it s

eem

s unl

ikel

y th

at e

ither

the

Man

ches

ter b

omb

or th

e D

ockl

ands

bom

b w

ould

hav

e le

d to

spec

ial

legi

slat

ive

mea

sure

s as t

he g

eogr

aphi

cal i

mpa

ct w

ould

not

hav

e m

et th

e re

quire

men

ts o

f the

Bill

. Sin

gle

seat

ed e

vent

s wou

ld n

ot b

e ex

pect

ed to

pas

s thi

s tes

t unl

ess c

onse

quen

tial e

ffec

ts w

ere

sign

ifica

nt (f

or e

xam

ple,

mas

s cas

ualti

es re

quiri

ng a

nat

iona

l NH

S ef

fort,

m

assi

ve d

isru

ptio

n to

tran

spor

t net

wor

ks).

Bot

h in

cide

nts,

whi

le se

rious

, had

rela

tivel

y lo

calis

ed c

onse

quen

ces.

Bot

h ev

ents

wou

ld a

lso

be li

kely

to fa

il th

e ‘n

eces

sary

’ tes

t. Su

cces

sive

Gov

ernm

ent’s

bui

lt up

a ra

nge

of le

gisl

ativ

e pr

actic

al m

easu

res

to c

omba

t Nor

ther

n Ir

ish

terr

oris

m a

nd so

eve

n la

rge

bom

bing

s wou

ld b

e w

ithin

the

legi

slat

ive

and

prac

tical

com

pete

nce

of th

e re

spon

se

agen

cies

. A

Sep

tem

ber 1

1-st

yle

even

t occ

urrin

g in

the

UK

mig

ht re

quire

the

use

of sp

ecia

l leg

isla

tive

mea

sure

s, th

ough

muc

h w

ould

dep

end

on

the

char

acte

ristic

s of t

he si

tuat

ion.

It w

ould

pas

s the

‘ser

ious

ness

’ tes

t, an

d w

ould

be

likel

y to

pas

s the

‘ext

ent’

test

for a

regi

onal

em

erge

ncy.

Whe

ther

the

inci

dent

met

the

‘nec

essa

ry’ t

est w

ould

dep

end

on w

heth

er n

ew p

ower

s wer

e ‘n

eces

sary

’, fo

r exa

mpl

e to

re

stric

t mov

emen

t in

affe

cted

are

as o

r to

rest

rict a

cces

s to

the

vici

nity

of o

ther

pot

entia

l tar

gets

. A m

assi

ve m

ulti-

seat

ed a

ttack

mig

ht

also

put

stra

in o

n av

aila

ble

reso

urce

s, an

d so

pow

ers o

f req

uisi

tion

mig

ht b

e ne

eded

. Th

e fu

el c

risis

of 2

000

is ty

pica

l of t

he so

rt of

serio

us, w

ide

area

em

erge

ncy

durin

g w

hich

the

Gov

ernm

ent m

ight

con

side

r the

use

of

emer

genc

y po

wer

s. It

wou

ld p

ass b

oth

the

'serio

usne

ss' a

nd 'e

xten

t' te

sts o

f the

'trip

le lo

ck'.

118

In d

ealin

g w

ith p

robl

ems w

ith th

e fu

el su

pply

, the

Gov

ernm

ent's

prin

cipl

e le

gisl

ativ

e to

ol is

the

Ener

gy A

ct 1

976.

Thi

s Act

allo

ws t

he

Gov

ernm

ent t

o ta

ke a

ctio

n in

rela

tion

to th

e su

pply

of f

uel a

nd it

s use

. The

Act

doe

s not

allo

w th

e G

over

nmen

t to

deal

with

co

nseq

uent

ial e

ffec

ts -

for e

xam

ple

the

impa

ct o

n es

sent

ial p

ublic

serv

ices

. Th

e fu

el c

risis

of 2

000

had

a si

gnifi

cant

impa

ct o

n es

sent

ial p

ublic

serv

ices

. How

ever

, the

cris

is w

as re

solv

ed b

efor

e re

med

ial a

ctio

n be

cam

e ne

cess

ary.

Had

the

situ

atio

n co

ntin

ued,

mea

sure

s mig

ht h

ave

been

requ

ired

that

wen

t bey

ond

the

exis

ting

legi

slat

ive

prov

isio

n.

In th

at so

rt of

circ

umst

ance

the

spec

ial l

egis

lativ

e m

easu

res t

hat t

he d

raft

Civ

il C

ontin

genc

ies B

ill m

akes

ava

ilabl

e w

ould

hav

e be

en

used

. 15

.

Is it

the

Cab

inet

Off

ice’

s vie

w th

at th

e pr

erog

ativ

e po

wer

at c

laus

e 18

wou

ld

neve

r be

exer

cise

d w

ithou

t, or

aga

inst

, m

inis

teria

l adv

ice

even

in a

n ex

trem

e si

tuat

ion?

It is

a lo

ng e

stab

lishe

d pa

rt of

the

UK

’s c

onst

itutio

n th

at th

e Q

ueen

onl

y ev

er a

cts o

n th

e ad

vice

of H

er M

inis

ters

.

16.

Th

e co

nsul

tatio

n pa

per i

nvite

s vie

ws o

n an

alte

rnat

ive

met

hod

for m

akin

g a

Proc

lam

atio

n of

Em

erge

ncy

(pag

e 31

). W

hat i

s the

scop

e in

the

proc

ess f

or a

M

inis

ter’

s dec

isio

n to

be

revi

ewed

bef

ore

a st

ate

of e

mer

genc

y is

dec

lare

d?

In th

e ev

ent t

hat a

Roy

al P

rocl

amat

ion

of e

mer

genc

y co

uld

not b

e ar

rang

ed w

ithou

t occ

asio

ning

serio

us d

elay

, the

dra

ft B

ill p

rovi

des f

or

the

Secr

etar

y of

Sta

te to

mak

e th

e de

clar

atio

n of

em

erge

ncy

and

the

emer

genc

y re

gula

tions

. The

Gov

ernm

ent b

elie

ves t

hat t

his i

s a

sens

ible

pre

caut

ion.

Th

e dr

aft B

ill c

onst

rain

s the

act

ions

of t

he S

ecre

tary

of S

tate

in tw

o w

ays.

Firs

tly, c

laus

e 19

mak

es c

lear

that

the

fallb

ack

can

only

be

used

in a

ver

y na

rrow

rang

e of

circ

umst

ance

s. Se

cond

ly, t

he S

ecre

tary

of S

tate

is st

ill su

bjec

t to

the

‘trip

le lo

ck’.

Any

pos

sibl

e ac

tion

wou

ld b

e re

view

ed a

gain

st b

oth

thes

e co

nstra

ints

. Th

e M

inis

teria

l dec

isio

n w

ould

als

o be

revi

ewed

with

in G

over

nmen

t. Th

e co

nven

tion

of c

olle

ctiv

e de

cisi

on m

akin

g by

Cab

inet

wou

ld

appl

y, a

nd th

e de

cisi

on to

use

spec

ial l

egisl

ativ

e m

easu

res w

ould

requ

ire c

olle

ctiv

e ag

reem

ent.

Cla

use

26 e

xten

ds th

is re

view

pro

cess

to

the

Dev

olve

d A

dmin

istra

tions

.

17.

D

o yo

u en

visa

ge a

role

for t

he C

ounc

il of

St

ate

in d

ecla

ring

an e

mer

genc

y in

the

case

of t

he u

nava

ilabi

lity

of T

he Q

ueen

(f

or w

hate

ver r

easo

n)?

Or w

ould

the

Secr

etar

y of

Sta

te’s

pow

ers u

nder

cla

use

19 b

e in

voke

d au

tom

atic

ally

in su

ch

circ

umst

ance

s? A

pro

clam

atio

n by

the

Cou

ncil

of S

tate

was

use

d on

9 F

ebru

ary

1972

whe

n th

e Q

ueen

was

on

a vi

sit t

o So

uth

East

Asi

a)?

The

Bill

doe

s not

aff

ect i

n an

y w

ay th

e po

wer

s of H

er M

ajes

ty u

nder

the

Reg

ency

Act

193

7 to

del

egat

e he

r fun

ctio

ns to

Cou

nsel

lors

of

Stat

e. If

Her

Maj

esty

had

del

egat

ed h

er fu

nctio

ns u

nder

the

Bill

to C

ouns

ello

rs o

f Sta

te, a

ny p

rocl

amat

ion

wou

ld b

e m

ade

by th

e C

ouns

ello

rs, u

nles

s it w

ould

cau

se se

rious

del

ay th

at m

ay re

sult

in se

rious

dam

age

(cla

use

19(1

)(c)

and

19(

3)).

The

Secr

etar

y of

Sta

te’s

po

wer

s und

er c

laus

e 19

wou

ld n

ot th

eref

ore

be in

voke

d au

tom

atic

ally

.

18.

W

hat a

rran

gem

ents

wou

ld b

e fo

llow

ed if

D

ecla

ratio

ns o

f em

erge

ncy

can

be m

ade

unde

r the

Bill

by

The

Que

en (o

r a S

ecre

tary

of S

tate

if it

wou

ld c

ause

serio

us d

elay

to a

rran

ge

119

a st

ate

of e

mer

genc

y ha

d to

be

proc

laim

ed w

hile

Par

liam

ent w

as

diss

olve

d?

for a

Roy

al P

rocl

amat

ion)

. Suc

h a

Proc

lam

atio

n is

mad

e at

a m

eetin

g of

the

Priv

y C

ounc

il (th

e Pr

ivy

Cou

ncil

still

exi

sts r

egar

dles

s of

any

per

iod

of d

isso

lutio

n). T

he Q

ueen

can

ther

efor

e de

clar

e an

em

erge

ncy

even

whe

n Pa

rliam

ent h

as b

een

diss

olve

d.

Whe

n Pa

rliam

ent h

as b

een

diss

olve

d M

inis

ters

still

reta

in o

ffic

e du

ring

the

ensu

ing

gene

ral e

lect

ion.

Thu

s eve

n w

hen

Parli

amen

t has

be

en d

isso

lved

the

Secr

etar

y of

Sta

te is

als

o in

a p

ositi

on to

dec

lare

an

emer

genc

y sh

ould

ther

e be

serio

us d

elay

in o

btai

ning

a R

oyal

Pr

ocla

mat

ion.

It

is n

ot p

ossi

ble

to 'u

ndis

solv

e' Pa

rliam

ent.

If P

arlia

men

t sta

nds d

isso

lved

then

ther

e is

no

Parli

amen

t to

reca

ll/re

inst

ate.

Und

er c

laus

e 24

(6),

the

Secr

etar

y of

Sta

te m

ust a

s soo

n as

is re

ason

ably

pra

ctic

able

, lay

any

regu

latio

ns m

ade

unde

r cla

use

21, b

efor

e Pa

rliam

ent.

As

durin

g a

diss

olut

ion

ther

e is

no

Parli

amen

t, it

wou

ld b

e ne

cess

ary

for t

he S

ecre

tary

of S

tate

to w

ait f

or th

e ne

w P

arlia

men

t to

be

conv

ened

. In

the

mea

ntim

e, th

e re

gula

tions

wou

ld st

ill c

arry

lega

l for

ce.

H

uman

Rig

hts

19

.

If, a

s the

Gov

ernm

ent s

ugge

sted

in th

e C

onsu

ltatio

n do

cum

ent,

ther

e is

not

hing

in

the

draf

t Bill

that

con

flict

s with

the

Con

vent

ion

on H

uman

Rig

hts,

why

is it

pr

opos

ing

to p

reve

nt a

stat

emen

t of i

ts

com

patib

ility

bei

ng m

ade

befo

re

Parli

amen

t (as

is re

quire

d un

der t

he

Hum

an R

ight

s Act

199

8)?

The

Min

iste

r in

char

ge o

f the

Bill

will

mak

e a

stat

emen

t of c

ompa

tibili

ty a

s req

uire

d by

the

Hum

an R

ight

s Act

whe

n th

e B

ill is

in

trodu

ced.

The

stat

emen

t will

be

publ

ishe

d on

the

face

of t

he B

ill a

nd in

the

expl

anat

ory

note

s, in

the

usua

l way

. A

s ind

icat

ed a

t par

agra

ph 6

1 of

the

Expl

anat

ory

Not

es th

at a

ccom

pany

the

draf

t Bill

, the

Gov

ernm

ent c

onsi

ders

that

the

Bill

as i

t cu

rren

tly st

ands

is c

ompa

tible

with

the

Con

vent

ion

right

s.

20.

W

ill th

e G

over

nmen

t’s p

ower

s und

er th

e A

ct b

e su

bjec

t to

the

Inte

rnat

iona

l C

oven

ant o

n C

ivil

and

Polit

ical

Rig

hts,

ratif

ied

by th

e U

K in

May

197

6? W

ould

it

help

to c

larif

y th

e U

K’s

pos

ition

und

er

inte

rnat

iona

l law

if a

cla

use

wer

e in

clud

ed st

atin

g th

at a

ctio

ns ta

ken

unde

r th

e B

ill m

ust b

e co

mpa

tible

with

the

Cov

enan

t (as

in th

e C

anad

ian

Act

)?

Arti

cle

4 of

the

Cov

enan

t sta

tes t

hat a

t a

time

of a

“pu

blic

em

erge

ncy

whi

ch

thre

aten

s the

life

of t

he n

atio

n”, S

tate

s m

ay ta

ke m

easu

res “

dero

gatin

g th

eir

Alth

ough

the

ICC

PR h

as n

ot b

een

inco

rpor

ated

into

UK

law

, the

Gov

ernm

ent w

ould

cer

tain

ly ta

ke in

to a

ccou

nt th

e in

tern

atio

nal

oblig

atio

ns o

f the

Uni

ted

Kin

gdom

bef

ore

taki

ng a

ctio

n un

der t

he B

ill.

120

oblig

atio

ns u

nder

the

exis

ting

Cov

enan

t to

the

exte

nt st

rictly

requ

ired

by th

e ex

igen

cies

of t

he si

tuat

ion”

. The

se

mea

sure

s mus

t not

be

inco

nsis

tent

with

ot

her o

blig

atio

ns u

nder

inte

rnat

iona

l law

an

d m

ust n

ot in

volv

e di

scrim

inat

ion

sole

ly o

n th

e gr

ound

of r

ace,

col

our,

sex,

la

ngua

ge, r

elig

ion

or so

cial

orig

in. T

here

ca

n be

no

dero

gatio

n fr

om th

e ar

ticle

s pr

ocla

imin

g th

e rig

ht to

life

, pro

tect

ion

from

tortu

re, d

egra

ding

trea

tmen

t or

slav

ery,

reco

gniti

on a

s a p

erso

n be

fore

th

e la

w, a

nd fr

eedo

m o

f tho

ught

, co

nsci

ence

and

relig

ion.

The

re c

an a

lso

be n

o de

roga

tion

from

arti

cles

forb

iddi

ng

the

conv

ictio

n of

a c

rimin

al o

ffen

ce

whi

ch d

id n

ot c

onst

itute

an

offe

nce

whe

n it

was

com

mitt

ed, a

nd im

pris

onm

ent o

n th

e gr

ound

s of i

nabi

lity

to fu

lfil a

co

ntra

ctua

l obl

igat

ion.

21

.

Wha

t is t

here

in th

e dr

aft B

ill to

ens

ure

that

the

pow

ers g

rant

ed b

y th

e B

ill w

ill

not b

e ab

used

in th

e ev

ent o

f an

emer

genc

y?

Cla

use

21(1

)(a)

stat

es th

at e

mer

genc

y re

gula

tions

can

be

mad

e on

ly so

far a

s it i

s nec

essa

ry fo

r the

pur

pose

of p

reve

ntin

g, c

ontro

lling

or

miti

gatin

g a

serio

us a

spec

t or s

erio

us e

ffec

t of t

he e

mer

genc

y. A

ttem

pts t

o m

ake

regu

latio

ns b

eyon

d th

at w

hich

is n

eces

sary

may

lead

to

judi

cial

revi

ew p

roce

edin

gs. C

laus

e 21

(4) a

lso

spec

ifica

lly b

ars e

mer

genc

y re

gula

tions

from

inte

rfer

ing

with

cer

tain

righ

ts e

.g. c

laus

e 21

(4)(

a), w

hich

pro

hibi

ts th

e re

gula

tions

from

requ

iring

a p

erso

n to

pro

vide

mili

tary

or i

ndus

trial

serv

ice,

refle

cts t

he p

rovi

sion

s of

Arti

cle

4 EC

HR

(for

ced

labo

ur).

In

add

ition

, the

Hum

an R

ight

s Act

will

ope

rate

so a

s to

limit

the

exer

cise

of t

he p

ower

s und

er th

e B

ill (a

lbei

t tha

t cla

use

25 w

ould

, if

enac

ted,

aff

ect t

he re

med

ies w

hich

may

be

soug

ht in

rela

tion

to e

mer

genc

y re

gula

tions

.)

R

egul

atio

ns (c

laus

e 21

)

22.

W

hen

will

dra

fts o

f the

prin

cipa

l re

gula

tions

and

ord

ers t

o be

mad

e un

der

the

Bill

be

read

y fo

r con

side

ratio

n by

the

Com

mitt

ee?

The

Gov

ernm

ent i

nten

ds to

mak

e as

muc

h in

form

atio

n av

aila

ble

as p

ossi

ble

to th

e Jo

int C

omm

ittee

abo

ut th

e sh

ape

and

cont

ent o

f the

re

gula

tions

to b

e m

ade

unde

r the

Bill

. R

egul

atio

ns to

be

mad

e un

der P

art 1

of t

he B

ill a

re st

ill u

nder

dev

elop

men

t. W

hile

the

Gov

ernm

ent h

as th

is p

roce

ss w

ell u

nder

way

, si

gnifi

cant

cha

nges

mig

ht b

e ne

cess

ary

as a

con

sequ

ence

of t

he c

onsu

ltatio

n pr

oces

s (pa

rticu

larly

que

stio

ns 1

, 2, 3

, 4 a

nd 5

). In

ligh

t of

121

this

, the

Gov

ernm

ent i

nten

ds to

mak

e fu

rther

det

ail o

n th

e re

gula

tions

ava

ilabl

e to

the

Com

mitt

ee d

urin

g O

ctob

er.

In o

rder

to p

rovi

de a

n in

dica

tion

of th

e so

rt of

regu

latio

ns th

at m

ight

be

mad

e un

der P

art 2

, a c

opy

of th

e ex

istin

g dr

aft e

mer

genc

y re

gula

tions

has

alre

ady

been

pas

sed

to th

e C

omm

ittee

to c

onsi

der,

on th

e un

ders

tand

ing

that

it sh

ould

be

treat

ed a

s con

fiden

tial.

A

revi

ew o

f the

se is

now

und

erw

ay a

nd in

clud

es a

n ex

erci

se to

iden

tify

an in

dica

tive

list o

f dra

ft re

gula

tions

that

wou

ld b

e po

ssib

le u

nder

th

e dr

aft B

ill a

s thi

s has

a w

ider

scop

e th

an th

e ex

istin

g le

gisl

atio

n.

23

.

Is th

ere

any

reas

on w

hy "

stan

dard

" re

gula

tions

can

not b

e at

tach

ed to

the

Bill

, al

low

ing

them

to b

e de

bate

d an

d ap

prov

ed b

y Pa

rliam

ent a

s par

t of t

he

enab

ling

legi

slat

ion,

whi

le st

ill a

llow

ing

disc

retio

n to

intro

duce

add

ition

al, e

vent

-sp

ecifi

c, re

gula

tions

whe

n an

em

erge

ncy

is d

ecla

red.

In th

e st

ate

of e

mer

genc

y ca

lled

in N

ovem

ber 1

973,

the

then

Hom

e Se

cret

ary

stat

ed: “

It ha

s bee

n th

e pr

actic

e of

succ

essi

ve G

over

nmen

ts –

I am

sure

th

at it

is a

wis

e on

e –

to m

ake

a co

mpl

ete

set o

f em

erge

ncy

regu

latio

ns a

t the

ou

tset

.”39

7

The

Gov

ernm

ent b

elie

ves t

hat t

he d

raft

Bill

shou

ld o

ffer

a fu

ller i

ndic

atio

n of

the

likel

y us

es o

f spe

cial

legi

slat

ive

mea

sure

s tha

n th

e 19

20 A

ct c

urre

ntly

doe

s. Th

at is

why

Cla

use

21 o

f the

dra

ft B

ill se

ts o

ut a

list

of l

ikel

y us

es fo

r the

regu

latio

ns w

hich

Par

liam

ent s

houl

d co

nsid

er a

s ind

icat

ive

of th

e ty

pe o

f reg

ulat

ions

that

cou

ld b

e m

ade.

Th

ere

are

thre

e st

rong

arg

umen

ts a

gain

st m

akin

g th

e fu

ll se

t of d

raft

regu

latio

ns a

vaila

ble.

Fi

rstly

, the

dra

ft re

gula

tions

are

subj

ect t

o fr

eque

nt c

hang

e. T

hey

are

upda

ted

at le

ast e

very

two

year

s, an

d m

ore

ofte

n if

nece

ssar

y.

Seco

ndly

, ‘st

anda

rd’ (

or p

ublic

atio

n of

dra

ft) re

gula

tions

wou

ld n

ot n

eces

saril

y of

fer a

cle

ar in

dica

tion

of th

e co

nten

t of f

utur

e em

erge

ncy

regu

latio

ns. B

y th

eir v

ery

natu

re e

mer

genc

ies a

re u

npre

dict

able

and

can

occ

ur in

, and

incl

ude,

a v

ery

wid

e-ra

nge

of

circ

umst

ance

s and

eve

nts.

Emer

genc

y re

gula

tions

will

in la

rge

mea

sure

be

tailo

red

to th

e pa

rticu

lar e

mer

genc

y at

han

d. T

he d

raft

regu

latio

ns a

re v

ery

muc

h a

star

ting

poin

t, an

d it

is h

ighl

y lik

ely

that

any

act

ual r

egul

atio

ns w

ould

div

erge

from

the

stan

dard

dra

ft.

Third

ly, d

raft

regu

latio

ns w

ill b

e de

sign

ed to

resp

ond

to e

mer

genc

ies i

nclu

ding

terr

oris

m a

nd d

isru

ptiv

e in

dust

rial a

ctio

n. W

ide

acce

ss to

dr

aft e

mer

genc

y re

gula

tions

cou

ld h

ighl

ight

bot

h po

tent

ial w

eakn

esse

s or t

arge

ts a

nd li

kely

cou

nter

-mea

sure

s.

24.

R

egul

atio

ns is

sued

dur

ing

an e

mer

genc

y w

hich

rela

te w

holly

or p

artly

to S

cotla

nd,

Nor

ther

n Ir

elan

d an

d W

ales

“m

ay n

ot b

e m

ade

unle

ss th

e Se

cret

ary

of S

tate

has

co

nsul

ted

with

” Sc

ottis

h M

inis

ters

, the

Fi

rst M

inis

ter a

nd d

eput

y Fi

rst M

inis

ter

in N

orth

ern

Irel

and

or th

e N

atio

nal

Ass

embl

y fo

r Wal

es (c

laus

e 26

(1-4

)).

The

devo

lved

adm

inis

tratio

ns h

ave

a di

rect

invo

lvem

ent i

n th

e le

gisl

atio

n m

akin

g pr

oces

s. A

s a c

onse

quen

ce, t

he G

over

nmen

t bel

ieve

s th

is in

volv

emen

t sho

uld

cont

inue

whe

re p

ossi

ble

if th

e us

e of

spec

ial l

egis

lativ

e m

easu

res i

s nec

essa

ry. T

his i

nvol

vem

ent i

s als

o cr

ucia

l be

caus

e of

the

impo

rtant

role

the

devo

lved

adm

inis

tratio

ns p

lay

in c

o-or

dina

ting

resp

onse

to e

mer

genc

ies.

Ther

e ar

e cu

rren

tly n

o ad

min

istra

tions

in E

ngla

nd w

hich

enj

oy c

ompa

rabl

e le

vels

of l

egis

lativ

e co

mpe

tenc

e. T

his s

ituat

ion

will

con

tinue

to

be

revi

ewed

as p

art o

f the

dev

elop

men

t of t

he G

over

nmen

t’s p

olic

y on

Eng

lish

Reg

iona

l Ass

embl

ies.

Whe

re re

spon

sibi

litie

s hav

e no

t be

en d

evol

ved

in E

ngla

nd, t

hose

resp

onsi

bilit

ies c

ontin

ue to

sit w

ith U

K G

over

nmen

t Min

iste

rs. T

hose

Min

iste

rs w

ill o

bvio

usly

be

part

of th

e pr

oces

s to

agre

e an

d de

ploy

em

erge

ncy

regu

latio

ns.

397

HC

Deb

15

Nov

embe

r 197

3 cc

680

-3

122

Wha

t rea

sons

are

ther

e fo

r not

app

lyin

g th

e sa

me

leve

ls o

f con

sulta

tion

in

Engl

and?

In p

ract

ice,

con

sulta

tion

mig

ht ru

n ev

en m

ore

wid

ely.

In m

akin

g de

cisi

ons a

bout

the

use

of sp

ecia

l leg

isla

tive

mea

sure

s, th

e G

over

nmen

t w

ould

wor

k cl

osel

y w

ith lo

cal a

genc

ies o

r the

ir re

pres

enta

tives

whi

ch w

ould

be

deliv

erin

g th

e fr

ont l

ine

of a

ny re

spon

se.

25

.

Wha

t for

mat

is e

nvis

aged

for t

he

cons

ulta

tions

with

dev

olve

d ad

min

istra

tions

und

er c

laus

es 1

2 an

d 26

? W

ould

they

be

cons

ulte

d ab

out t

he

cont

ent o

f dra

ft re

gula

tions

? W

ould

they

be

con

sulte

d ab

out:

i) w

hich

regu

latio

ns w

ould

app

ly?

ii)

who

shou

ld b

e ap

poin

ted

emer

genc

y co

ordi

nato

r in

thei

r are

a an

d ab

out t

he

term

s of t

he a

ppoi

ntm

ent?

Off

icia

ls a

re in

dis

cuss

ion

with

the

devo

lved

adm

inis

tratio

ns a

s to

the

exac

t for

mat

of c

onsu

ltatio

n un

der c

laus

e 26

, whi

ch is

like

ly to

be

ensh

rined

in c

onco

rdat

. The

star

ting

poin

t is t

hat t

hey

shou

ld p

lay

as fu

ll a

role

as p

ossi

ble

so fa

r as t

his d

oes n

ot ri

sk d

elay

ing

effe

ctiv

e re

spon

se. T

his w

ould

incl

ude

cons

ulta

tion

on th

e us

e an

d na

ture

of r

egul

atio

ns a

nd th

e id

entit

y an

d fu

nctio

ns o

f the

em

erge

ncy

co-

ordi

nato

r whe

reve

r pos

sibl

e.

26.

In

wha

t pos

sibl

e ci

rcum

stan

ces d

oes t

he

Gov

ernm

ent e

nvis

age

need

ing

the

pow

ers

to p

rohi

bit,

or e

nabl

e th

e pr

ohib

ition

of,

asse

mbl

ies o

f spe

cifie

d ki

nds,

at sp

ecifi

ed

plac

es o

r at s

peci

fied

times

? H

ow w

ould

it

resp

ond

to th

e vi

ew th

at th

is is

sim

ply

a po

wer

to c

rush

pol

itica

l dis

sent

?

A ra

nge

of c

ircum

stan

ces e

xist

s in

whi

ch th

e G

over

nmen

t mig

ht n

eed

to p

rohi

bit l

arge

gat

herin

gs o

f peo

ple.

Suc

h ga

ther

ings

may

be

unde

sira

ble

if, fo

r exa

mpl

e, th

ere

is a

con

tagi

ous e

pide

mic

, a ri

sk o

f a m

ass-

casu

alty

terr

oris

t atta

ck o

r sev

ere

disr

uptio

n to

tra

nspo

rtatio

n.

In li

ght o

f the

se a

nd o

ther

exa

mpl

es, t

he G

over

nmen

t bel

ieve

s tha

t it i

s nec

essa

ry to

pro

vide

for s

uch

situ

atio

ns u

nder

the

draf

t Bill

. The

‘tr

iple

lock

’ wou

ld c

ontin

ue to

pro

vide

a sa

fegu

ard

agai

nst m

isus

e.

27

.

Und

er c

laus

e 21

(3)(

l), re

gula

tions

may

“c

onfe

r jur

isdi

ctio

n on

a c

ourt

or tr

ibun

al

(whi

ch m

ay in

clud

e a

tribu

nal e

stab

lishe

d by

the

regu

latio

ns)”

, but

und

er c

laus

e 21

(4

)(d)

, reg

ulat

ions

may

not

“cr

eate

an

offe

nce

whi

ch is

pun

isha

ble

with

out t

rial

befo

re a

mag

istra

tes’

cou

rt, th

e C

row

n C

ourt,

the

dist

rict c

ourt

or th

e sh

eriff

.”

Wha

t is t

he e

nvis

aged

poi

nt o

f a tr

ibun

al

esta

blis

hed

unde

r Cla

use

21 (3

)(1)

, and

w

hat c

ases

wou

ld it

be

likel

y to

han

dle?

Cla

use

21(4

)(c)

pro

vide

s tha

t em

erge

ncy

regu

latio

ns m

ay n

ot c

reat

e an

y of

fenc

e ot

her t

han

that

of f

ailin

g to

com

ply

with

the

regu

latio

ns o

r act

ion

take

n un

der t

he re

gula

tions

or o

bstru

ctin

g a

pers

on in

the

perf

orm

ance

of a

func

tion

unde

r or b

y vi

rtue

of th

e re

gula

tions

. The

cla

ss o

f crim

inal

off

ence

s tha

t can

be

crea

ted

unde

r em

erge

ncy

regu

latio

ns is

ther

efor

e ve

ry li

mite

d. It

is u

nlik

ely

that

it

wou

ld b

e ne

cess

ary

to e

stab

lish

a ne

w tr

ibun

al to

dea

l with

thes

e of

fenc

es.

How

ever

, the

re w

ould

be

scop

e, fo

r exa

mpl

e, to

con

fer t

he ju

risdi

ctio

n of

one

trib

unal

on

anot

her t

ype

of tr

ibun

al w

here

it w

as

nece

ssar

y an

d no

t pos

sibl

e in

the

emer

genc

y si

tuat

ion

for t

he fi

rst t

o he

ar it

(e.g

. if t

hose

who

wou

ld n

orm

ally

sit o

n th

e Tr

ibun

al a

re

caug

ht u

p th

emse

lves

in th

e em

erge

ncy

situ

atio

n).

It is

mor

e lik

ely

that

a tr

ibun

al w

ould

nee

d to

be

esta

blis

hed

to d

eal w

ith n

on-c

rimin

al m

atte

rs. F

or e

xam

ple,

it m

ight

be

appr

opria

te to

es

tabl

ish

a tri

buna

l to

asse

ss c

laim

s und

er a

ny c

ompe

nsat

ion

prov

isio

n m

ade

by e

mer

genc

y re

gula

tions

. A

ll of

this

is o

f cou

rse

boun

d by

the

test

in c

laus

e 21

(1) o

f nec

essi

ty.

28

.

Whi

ch R

oyal

Pre

roga

tives

doe

s the

Pr

erog

ativ

e po

wer

s are

pow

ers,

priv

ilege

s, rig

hts a

nd o

ther

inte

rest

s tha

t are

reco

gnis

ed in

law

as p

erta

inin

g to

the

Cro

wn

even

thou

gh

123

Cab

inet

Off

ice

cons

ider

wou

ld fa

ll w

ithin

th

e po

wer

s con

ferr

ed b

y cl

ause

21(

3)?

th

ey h

ave

not b

een

vest

ed in

the

Cro

wn

by A

cts o

f Par

liam

ent,

All

of th

e R

oyal

Pre

roga

tives

wou

ld fa

ll w

ithin

cla

use

21(3

) but

it w

ould

be

impo

ssib

le to

list

them

all.

Ex

ampl

es w

ould

incl

ude

the

Prer

ogat

ives

of i

ssui

ng p

assp

orts

, cre

atin

g a

corp

orat

ion

by a

roya

l cha

rter o

f inc

orpo

ratio

n, p

ardo

ning

of

fend

ers a

nd p

ower

s in

rela

tion

to c

oina

ge.

Onc

e ag

ain

the

over

all t

est o

f nec

essi

ty w

ould

hav

e to

be

esta

blis

hed.

29.

W

hich

dis

cret

iona

ry fu

nctio

ns o

f M

inis

ters

of t

he C

row

n do

you

con

side

r w

ould

fall

with

in th

e po

wer

s con

ferr

ed

by c

laus

e 21

(3)(

a)?

Any

dis

cret

iona

ry fu

nctio

n co

uld

be c

onfe

rred

on

Min

iste

rs o

f the

Cro

wn

by c

laus

e 21

(3)(

a) p

rovi

ded

it is

nec

essa

ry to

con

fer i

t.

30.

Th

e C

ivil

Def

ence

Act

194

8 im

pose

s the

du

ty o

n M

inis

ters

to ta

ke st

eps n

eces

sary

or

exp

edie

nt fo

r civ

il de

fenc

e pu

rpos

es.

Wha

t dut

ies w

ill th

e dr

aft B

ill im

pose

on

Min

iste

rs in

resp

ect o

f civ

il de

fenc

e? If

th

ey a

re n

ot p

rovi

ded

on th

e fa

ce o

f the

B

ill, w

hat d

utie

s will

rest

on

Min

iste

rs?

Whe

re a

re th

e pr

ovis

ions

in re

spec

t of

dutie

s?

The

Civ

il D

efen

ce A

ct 1

948

prov

ides

for “

the

desi

gnat

ed M

inis

ter t

o ta

ke su

ch st

eps a

s app

ear t

o hi

m fr

om ti

me

to ti

me

to b

e ne

cess

ary

or e

xped

ient

for c

ivil

defe

nce

purp

oses

”, in

par

ticul

ar th

e fo

rmat

ion

of c

ivil

defe

nce

forc

es, c

ivil

defe

nce

activ

ities

at t

he lo

cal l

evel

, in

stru

ctio

n of

mem

bers

of t

he p

ublic

for c

ivil

defe

nce,

hol

ding

civ

il de

fenc

e eq

uipm

ent a

nd th

e ca

rryi

ng o

ut o

f civ

il de

fenc

e w

orks

. Th

e 19

48 A

ct a

lso

defin

es c

ivil

defe

nce

as “

any

mea

sure

s not

am

ount

ing

to a

ctua

l com

bat f

or a

ffor

ding

def

ence

aga

inst

hos

tile

atta

ck b

y a

fore

ign

pow

er o

r for

dep

rivin

g …

the

who

le o

f par

t of i

ts e

ffec

t.”

Thes

e pr

ovis

ions

will

be

repe

aled

by

the

draf

t Bill

. The

re is

wid

e ac

cept

ance

that

civ

il de

fenc

e no

long

er c

onst

itute

s a st

and

alon

e ac

tivity

as e

nvis

aged

in 1

948.

Thi

s is v

ery

muc

h pa

rt of

a lo

nger

term

tren

d w

ith c

ivil

defe

nce

activ

ities

rega

rded

as a

subs

et o

f a m

uch

broa

der s

pect

rum

of e

mer

genc

ies r

equi

ring

a ge

neric

resp

onse

cap

acity

– a

n ap

proa

ch k

now

n as

inte

grat

ed e

mer

genc

y m

anag

emen

t. Th

is a

ppro

ach

was

giv

en le

gisl

ativ

e ef

fect

by

the

1986

Civ

il Pr

otec

tion

in P

eace

time

Act

, whi

ch p

rovi

ded

for t

he u

se o

f civ

il de

fenc

e re

sour

ces f

or o

ther

type

s of e

mer

genc

y, a

nd th

e 19

93 re

gula

tions

issu

ed u

nder

the

1948

Act

. In

pra

ctic

al te

rms,

man

y of

the

mea

sure

s out

lined

in th

e 19

48 A

ct h

ave

been

rend

ered

redu

ndan

t by

the

chan

ging

nat

ure

of th

e th

reat

of

host

ile a

ttack

– c

ivil

defe

nce

forc

es w

ere

disb

ande

d in

the

1960

s and

civ

il de

fenc

e w

orks

are

no

long

er re

gard

ed a

s a n

eces

sary

cou

nter

-m

easu

re.

The

Bill

doe

s not

impo

se a

ny d

utie

s on

Min

iste

rs in

resp

ect o

f civ

il de

fenc

e. T

he G

over

nmen

t bel

ieve

s tha

t suf

ficie

nt le

gisl

ativ

e pr

ovis

ion

alre

ady

exis

ts to

allo

w th

e G

over

nmen

t to

take

the

nece

ssar

y ac

tion

in re

spec

t of c

ivil

defe

nce,

bot

h as

a su

bset

of c

ivil

cont

inge

ncie

s and

of h

ome

defe

nce.

Thi

s exi

stin

g pr

ovis

ion

is su

ppor

ted

by th

e m

echa

nism

s out

lined

in a

nsw

er 3

1.

The

Bill

doe

s pro

vide

for c

ivil

defe

nce

plan

ning

to b

e un

derta

ken

if ne

cess

ary

by lo

cal r

espo

nder

s. D

utie

s in

rega

rd to

Civ

il D

efen

ce a

re

at 1

(1)(

d), 1

(5),

1(7)

-(10

), C

laus

e 2

et su

b. It

is n

ot p

ropo

sed

to d

evel

op re

gula

tions

in re

latio

n to

thes

e po

wer

s at t

he p

rese

nt ti

me.

The

124

scop

e of

the

regu

latio

n m

akin

g po

wer

s in

Part

2 of

the

draf

t Bill

als

o in

clud

es c

ivil

defe

nce.

31.

H

ow d

oes t

he G

over

nmen

t ens

ure

and

test

that

all

depa

rtmen

ts fu

lfil t

heir

resp

onsi

bilit

ies t

o pl

an, p

repa

re, t

rain

and

ex

erci

se fo

r han

dlin

g in

cide

nts a

nd

emer

genc

ies (

chap

ter 5

.5 o

f the

C

onsu

ltatio

n D

ocum

ent)?

The

Gov

ernm

ent i

s com

mitt

ed to

ens

urin

g th

at d

epar

tmen

ts a

re a

ble

to p

lan

for a

nd re

spon

d to

em

erge

ncie

s. Th

ere

are

seve

ral k

ey

stra

nds w

hich

und

erpi

n th

is p

repa

redn

ess:

-

Cle

ar re

spon

sibi

litie

s. U

nder

the

Lead

Gov

ernm

ent D

epar

tmen

t prin

cipl

e, d

epar

tmen

ts ta

ke th

e le

ad fo

r con

tinge

ncy

plan

ning

and

em

erge

ncy

resp

onse

in th

eir o

wn

area

s of r

espo

nsib

ility

. The

Lea

d G

over

nmen

t Dep

artm

ent l

ist i

s a p

ublic

doc

umen

t, la

id b

efor

e Pa

rliam

ent,

and

upda

ted

whe

neve

r nec

essa

ry.

- C

o-or

dina

tion

and

deliv

ery.

The

Civ

il C

ontin

genc

ies S

ecre

taria

t of t

he C

abin

et O

ffic

e su

ppor

ts th

e w

ork

of d

epar

tmen

ts, c

o-or

dina

ting

cros

s-de

partm

enta

l ini

tiativ

es a

nd m

onito

ring

deliv

ery.

The

Cap

abili

ties p

rogr

amm

e, b

ased

aro

und

17 b

road

w

orks

tream

s, is

the

corn

erst

one

of th

is d

eliv

ery

man

agem

ent.

- Tr

aini

ng. T

he E

mer

genc

y Pl

anni

ng C

olle

ge, w

orki

ng w

ith th

e C

entre

for P

olic

y an

d M

anag

emen

t Stu

dies

, ens

ures

that

the

right

tra

inin

g is

ava

ilabl

e fo

r tho

se st

aff i

n ce

ntra

l gov

ernm

ent i

nvol

ved

in th

is a

rea.

-

Exer

cisi

ng. T

he G

over

nmen

t is d

evel

opin

g a

com

preh

ensi

ve e

xerc

ise

prog

ram

me

to te

st p

lann

ing

(see

ans

wer

40)

. -

Aud

it. A

regi

me

base

d up

on th

e em

bedd

ing

of c

ontin

genc

y pl

anni

ng a

ssur

ance

into

the

over

all D

epar

tmen

tal A

ssur

ance

pro

cess

is

at p

rese

nt u

nder

dev

elop

men

t. Th

e G

over

nmen

t exp

ects

to m

ake

deta

ils o

f the

new

aud

it re

gim

e av

aila

ble

durin

g th

e au

tum

n.

32.

Th

e C

ivil

Def

ence

Act

194

8 co

ntai

ns a

po

wer

at s

ectio

n 2

that

em

pow

ers t

he

Min

iste

r to

act i

n pl

ace

of a

loca

l au

thor

ity o

r pol

ice

auth

ority

whi

ch fa

ils

or re

fuse

s to

act a

nd to

cha

rge

them

for

the

cost

s inc

urre

d. H

as th

is p

ower

eve

r be

en u

sed?

It a

ppea

rs th

at th

e po

wer

has

no

t bee

n re

peat

ed in

the

draf

t Bill

. Wha

t co

nsid

erat

ions

led

the

Cab

inet

Off

ice

to

the

view

that

the

prov

isio

n w

as n

o lo

nger

re

quire

d?

Res

earc

h by

the

Bill

Tea

m h

as n

ot id

entif

ied

any

inst

ance

s in

whi

ch th

e in

terv

entio

n po

wer

s in

sect

ion

2 of

the

1948

hav

e be

en u

sed.

W

hile

the

pow

er in

the

1948

Act

has

not

bee

n re

peat

ed in

the

draf

t Bill

, pow

ers o

f int

erve

ntio

n w

ill st

ill b

e av

aila

ble

to M

inis

ters

. Pa

rt 1

of th

e dr

aft B

ill g

ives

pow

ers t

o th

e M

inis

ter u

nder

cla

uses

5 b

y or

der a

nd 7

to b

e m

ore

dire

ctiv

e in

his

app

roac

h to

the

perf

orm

ance

of l

ocal

resp

onde

rs, i

f tha

t is n

eces

sary

. If n

eed

be, e

nfor

cem

ent a

ctio

n ca

n be

take

n un

der c

laus

e 9.

M

ore

gene

rally

, the

Gov

ernm

ent b

elie

ves t

hat t

he p

ower

s to

inte

rven

e in

the

Loca

l Gov

ernm

ent A

ct 1

999

prov

ide

a m

ore

appr

opria

te

mec

hani

sm fo

r dea

ling

with

faili

ng p

erfo

rman

ce. T

hese

pow

ers a

pply

to th

e ge

nera

lity

of lo

cal a

utho

rity

func

tions

and

brin

g ci

vil

prot

ectio

n fu

rther

into

the

mai

nstre

am.

33

.

Wou

ld th

e su

spen

sion

or m

odifi

catio

n of

an

Act

of P

arlia

men

t und

er th

e po

wer

s at

clau

se 2

1(3)

con

tinue

bey

ond

the

end

of

the

stat

e of

em

erge

ncy

and

the

laps

ing

of

regu

latio

ns m

ade

unde

r cla

uses

20

and

21?

No.

Sus

pens

ion

or m

odifi

catio

n of

an

Act

of P

arlia

men

t can

onl

y be

ach

ieve

d th

roug

h re

gula

tions

. All

regu

latio

ns la

pse

whe

n a

proc

lam

atio

n or

min

iste

rial o

rder

stat

ing

that

use

of s

peci

al le

gisl

ativ

e m

easu

res i

s nec

essa

ry la

pses

(see

cla

use

23).

Ther

efor

e an

y su

spen

sion

or m

odifi

catio

n of

an

Act

of P

arlia

men

t is o

nly

poss

ible

whi

le re

gula

tions

are

ext

ant.

34.

W

hat i

s the

pos

ition

of t

he N

atio

nal

Crim

inal

Inte

llige

nce

Serv

ice

and

Nat

iona

l Crim

e Sq

uad

unde

r the

Bill

? W

ould

they

be

expe

cted

to a

ttend

foru

ms

Loca

l pol

ice

forc

es w

ill a

ct a

s a C

ateg

ory

1 re

spon

der i

n ac

cord

ance

with

thei

r fun

ctio

ns a

nd in

the

light

of r

isk

asse

ssm

ent.

Alth

ough

m

any

emer

genc

ies o

ccur

as t

he re

sult

of a

crim

e –

and

the

polic

e w

ill p

rote

ct th

e em

erge

ncy

site

as a

pot

entia

l “sc

ene

of c

rime”

for

inve

stig

atio

n by

spec

ialis

t off

icer

s – o

ffic

ers w

ith a

focu

s on

crim

e ar

e no

t nor

mal

ly in

clud

ed in

mul

ti-ag

ency

em

erge

ncy

plan

ning

ar

rang

emen

ts. T

heir

inte

rest

s are

repr

esen

ted

by p

olic

e of

ficer

s con

cern

ed w

ith p

ublic

ord

er a

nd e

mer

genc

y pl

anni

ng.

125

or p

ass o

n in

form

atio

n?

So n

eith

er N

CIS

nor

NC

S w

ould

be

expe

cted

to a

ttend

loca

l res

ilien

ce fo

rum

s. Th

ey w

ould

inst

ead

cont

inue

to p

rovi

de su

ppor

t to

indi

vidu

al p

olic

e fo

rces

, whi

ch in

turn

wou

ld fe

ed it

into

the

emer

genc

y pl

anni

ng p

roce

ss a

s nec

essa

ry.

35.

W

hat i

s the

diff

eren

ce b

etw

een

“fun

ctio

ns c

onfe

rred

or i

mpo

sed

by o

r by

virtu

e of

an

enac

tmen

t”, “

func

tions

of

Min

iste

rs o

f the

Cro

wn

(or t

heir

depa

rtmen

ts)”

, and

“fu

nctio

ns o

f per

sons

ho

ldin

g of

fice

unde

r the

Cro

wn”

(cla

use

1(6)

)?

“Fun

ctio

ns c

onfe

rred

or i

mpo

sed

by o

r by

virtu

e of

an

enac

tmen

t” m

eans

func

tions

con

ferr

ed o

n an

yone

(e.g

. Min

iste

rs o

f the

Cro

wn,

re

gula

tory

bod

ies)

by

way

of a

n en

actm

ent.

“Fun

ctio

ns o

f Min

iste

rs o

f the

Cro

wn

(or t

heir

depa

rtmen

ts)”

wou

ld in

clud

e fu

nctio

ns c

onfe

rred

on

a M

inis

ter o

f the

Cro

wn

by v

irtue

of

an e

nact

men

t but

wou

ld a

lso

incl

ude

func

tions

con

ferr

ed b

y co

ntra

ct, c

omm

on la

w o

r the

pre

roga

tive.

“F

unct

ions

of

pers

ons

hold

ing

offic

e un

der

the

Cro

wn”

wou

ld in

clud

e fu

nctio

ns c

onfe

rred

by

virtu

e of

an

enac

tmen

t but

wou

ld a

lso

incl

ude

func

tions

con

ferr

ed b

y co

ntra

ct, c

omm

on la

w o

r the

pre

roga

tive.

Whe

ther

a p

erso

n ho

lds o

ffic

e un

der t

he C

row

n w

ill d

epen

d on

th

e ci

rcum

stan

ces.

W

hile

thes

e ca

tego

ries

of f

unct

ions

do

over

lap,

the

Gov

ernm

ent c

onsi

ders

that

it is

nec

essa

ry to

ref

er to

eac

h of

thes

e ca

tego

ries

to

ensu

re th

at th

e co

ncep

t of a

thre

at to

the

polit

ical

, adm

inis

trativ

e or

eco

nom

ic st

abili

ty is

suff

icie

ntly

flex

ible

. 36

.

The

draf

t Bill

men

tions

the

Secr

etar

y of

St

ate

at so

me

poin

ts a

nd M

inis

ter o

f the

C

row

n at

oth

er p

lace

s. W

hy, a

nd w

hat i

s th

e si

gnifi

canc

e?

The

refe

renc

e to

“Se

cret

ary

of S

tate

” m

eans

any

of H

er M

ajes

ty’s

Prin

cipa

l Sec

reta

ries o

f Sta

te (s

ee th

e In

terp

reta

tion

Act

197

8).

“Min

iste

r of t

he C

row

n” is

def

ined

by

the

Min

iste

rs o

f the

Cro

wn

Act

197

5 as

the

“hol

der o

f an

offic

e in

Her

Maj

esty

’s G

over

nmen

t in

the

Uni

ted

Kin

gdom

, and

incl

udes

the

Trea

sury

, the

Boa

rd o

f Tra

de a

nd th

e D

efen

ce C

ounc

il”. T

hus “

Min

iste

r of t

he C

row

n” h

as a

br

oade

r mea

ning

and

incl

udes

Min

iste

rs w

ho a

re n

ot S

ecre

tarie

s of S

tate

Fu

nctio

ns u

nder

Par

t 1 o

f the

Bill

are

con

ferr

ed o

n M

inis

ters

of t

he C

row

n. T

his r

efle

cts t

he ra

nge

of M

inis

ters

who

may

nee

d to

take

ac

tion

unde

r tha

t Par

t of t

he B

ill. I

n pa

rticu

lar,

it sh

ould

be

note

d th

at th

e M

inis

ter c

urre

ntly

resp

onsi

ble

for t

he C

ivil

Con

tinge

ncie

s Se

cret

aria

t is n

ot a

Sec

reta

ry o

f Sta

te.

Func

tions

und

er P

art 2

of t

he B

ill a

re c

onfe

rred

on

the

Secr

etar

y of

Sta

te. T

his r

efle

cts t

he G

over

nmen

t’s v

iew

that

act

ion

unde

r Par

t 2 is

a

maj

or u

nder

taki

ng a

nd so

shou

ld o

nly

be ta

ken

by a

seni

or G

over

nmen

t Min

iste

r.

Com

pens

atio

n

37.

In

wha

t pos

sibl

e ci

rcum

stan

ces c

ould

the

Bill

Tea

m e

nvis

age

the

Gov

ernm

ent

need

ing

the

pow

ers t

o:

• pr

ovid

e fo

r or e

nabl

e th

e re

quis

ition

or c

onfis

catio

n of

pr

oper

ty w

ithou

t com

pens

atio

n; o

r •

prov

ide

for o

r ena

ble

the

The

Gov

ernm

ent b

elie

ves t

hat t

here

are

circ

umst

ance

s in

whi

ch it

mig

ht b

e ap

prop

riate

to o

ffer

com

pens

atio

n to

indi

vidu

als o

r or

gani

satio

ns if

they

are

neg

ativ

ely

affe

cted

by

emer

genc

y re

gula

tions

. Tha

t is w

hy th

e B

ill a

llow

s for

legi

timat

e co

mpe

nsat

ion

in

appr

opria

te c

ircum

stan

ces.

H

owev

er, t

here

shou

ld b

e no

ass

umpt

ion

that

com

pens

atio

n w

ould

be

auto

mat

ic in

all

circ

umst

ance

s. In

som

e si

tuat

ions

, for

exa

mpl

e in

re

spec

t of i

nsur

ed lo

sses

or w

here

an

indi

vidu

al o

r org

anis

atio

n is

in p

art t

o bl

ame

for t

heir

own

loss

es, a

utom

atic

com

pens

atio

n w

ould

no

t be

appr

opria

te.

126

dest

ruct

ion

of p

rope

rty, a

nim

al

life

or p

lant

life

with

out

com

pens

atio

n?

How

wou

ld y

ou re

spon

d to

the

argu

men

t th

at c

ompe

nsat

ion

shou

ld b

e pa

id, b

oth

beca

use

of n

atur

al ju

stic

e an

d so

as t

o ga

in c

onse

nt?

38.

W

hy h

as th

is d

raft

Bill

bro

ken

with

UK

an

d in

tern

atio

nal p

rece

dent

rega

rdin

g co

mpe

nsat

ion

if ch

atte

ls/la

nd is

dam

aged

as

a re

sult

of a

ctio

n ta

ken

unde

r em

erge

ncy

plan

ning

legi

slat

ion?

Dur

ing

the

stat

e of

em

erge

ncy

decl

ared

in 1

973,

re

gula

tions

30

and

31 re

quire

d th

e G

over

nmen

t to

pay

com

pens

atio

n if

they

re

quis

ition

ed c

hatte

ls o

r too

k po

sses

sion

of

land

. Civ

il co

ntin

genc

ies l

egis

latio

n in

N

ew Z

eala

nd a

nd C

anad

a al

so m

akes

pr

ovis

ion

for c

ompe

nsat

ion

if pr

oper

ty,

anim

al o

r pla

nt li

fe is

dam

aged

thro

ugh

actio

n ta

ken

unde

r the

Act

s.

See

answ

er 3

7.

It is

als

o w

orth

not

ing

that

the

Emer

genc

y Po

wer

s Act

192

0 do

es n

ot re

quire

the

paym

ent o

f com

pens

atio

n. C

ompe

nsat

ion

was

pro

vide

d fo

r in

rela

tion

to a

ctio

n un

der t

hat A

ct w

hen

the

Gov

ernm

ent c

onsi

dere

d it

appr

opria

te. T

hus t

he p

ositi

on u

nder

the

Bill

repl

icat

es th

at

unde

r the

cur

rent

legi

slat

ion.

Fund

ing

39

.

The

Con

sulta

tion

docu

men

t sta

tes t

hat

“the

cen

tre n

eeds

to b

e ab

le to

[mak

e] th

e re

sour

ces o

f cen

tral g

over

nmen

t ava

ilabl

e if

requ

ired

and

tack

l[e] t

he m

ost s

erio

us

emer

genc

ies u

sing

the

full

rang

e of

its

pow

ers”

(p6)

. The

dra

ft B

ill m

akes

pr

ovis

ion

for c

entra

l gov

ernm

ent t

o us

e th

e fu

ll ra

nge

of it

s pow

ers,

but w

here

do

es it

pro

vide

for m

akin

g th

e re

sour

ces

of c

entra

l gov

ernm

ent a

vaila

ble?

Wha

t ar

rang

emen

ts w

ould

be

put i

n pl

ace

to

asse

ss th

e re

sour

ces r

equi

red

and

to

The

purp

ose

of P

art 2

of t

he d

raft

Bill

is to

allo

w th

e G

over

nmen

t to

take

em

erge

ncy

pow

ers.

The

prov

isio

n of

reso

urce

s to

supp

ort

thes

e sp

ecia

l leg

isla

tive

mea

sure

s doe

s not

nec

essa

rily

requ

ire sp

ecifi

c le

gisl

ativ

e su

ppor

t (au

thor

ity fo

r exp

endi

ture

alre

ady

exis

ts in

m

any

inst

ance

s). W

here

add

ition

al a

utho

rity

was

requ

ired

it co

uld

be c

onfe

rred

thro

ugh

the

emer

genc

y re

gula

tions

. R

esou

rce

requ

irem

ents

wou

ld b

e as

sess

ed o

n th

e sa

me

basi

s whe

ther

the

reso

urce

s wer

e be

ing

depl

oyed

usi

ng e

xist

ing

pow

ers o

r em

erge

ncy

pow

ers.

Ass

essm

ents

wou

ld ta

ke p

lace

on

the

basi

s of d

iscu

ssio

ns b

etw

een

cent

ral g

over

nmen

t dep

artm

ents

, dra

win

g on

ev

iden

ce in

clud

ing

the

natu

re o

f the

situ

atio

n, e

xist

ing

reso

urce

s and

likl

ey fu

ture

requ

irem

ents

. The

cur

rent

pub

lic e

xpen

ditu

re

fram

ewor

k ha

s the

flex

ibili

ty to

allo

w th

e G

over

nmen

t to

man

age

any

unex

pect

ed c

hang

es, a

nd to

targ

et re

sour

ces w

here

they

are

ne

eded

.

127

enab

le th

e re

sour

ces t

o be

pai

d?

40.

C

entra

l Gov

ernm

ent h

as st

ress

ed th

e im

porta

nce

of c

arry

ing

out e

xerc

ises

(Ms

Susa

n Sc

hole

field

to th

e D

efen

ce S

elec

t C

omm

ittee

on

20 M

arch

200

3). H

ow

man

y m

ore

exer

cise

s nee

d to

be

carr

ied

out,

how

muc

h w

ould

it c

ost t

o fin

ance

th

e op

timum

num

ber o

f exe

rcis

es a

nd

whe

re w

ill th

e fin

ance

com

e fr

om?

The

Gov

ernm

ent b

elie

ves t

hat i

t is r

ight

for c

ontin

genc

y pl

anni

ng fo

r em

erge

ncie

s to

be te

sted

thro

ugh

exer

cise

s. Th

is is

an

impo

rtant

el

emen

t of t

he v

alid

atio

n an

d re

view

pro

cess

. A d

istin

ctio

n sh

ould

be

mad

e be

twee

n ex

erci

ses c

arrie

d ou

t at t

he in

stig

atio

n of

cen

tral

gove

rnm

ent a

nd re

gion

al g

over

nmen

t off

ices

to te

st c

entra

l and

regi

onal

arr

ange

men

ts, a

nd th

ose

carr

ied

out a

t a lo

cal l

evel

. The

serie

s of

exe

rcis

es sh

ould

als

o no

t be

rega

rded

as a

clo

sed

proj

ect w

ith a

beg

inni

ng a

nd e

nd; r

athe

r, ex

erci

ses a

re a

lway

s a p

art o

f the

em

erge

ncy

plan

ning

pro

cess

. It i

s the

refo

re n

ot p

ossi

ble

to sa

y ho

w m

any

mor

e ex

erci

ses n

eed

to b

e ca

rrie

d, a

s exe

rcis

es w

ill c

ontin

ue

as lo

ng a

s the

re is

em

erge

ncy

plan

ning

. N

ever

thel

ess,

the

Gov

ernm

ent d

oes s

ee a

nee

d to

ens

ure

the

right

leve

l of e

xerc

isin

g at

all

leve

ls.

The

draf

t Bill

pro

vide

s for

exe

rcis

ing

as p

art o

f the

em

erge

ncy

plan

ning

pro

cess

at c

laus

e 2(

3)(k

). G

ener

ally

, loc

al e

xerc

ise

prog

ram

mes

w

ould

be

a m

ater

for l

ocal

det

erm

inat

ion,

and

driv

en b

y lo

cal p

lann

ing

requ

irem

ents

. Whi

le p

ower

s exi

st in

the

draf

t Bill

for M

inis

ters

to

det

erm

ine

how

ofte

n th

ese

exer

cise

s sho

uld

be c

arrie

d ou

t, it

is p

ropo

sed

that

this

wou

ld b

e a

mat

ter f

or g

uida

nce

rath

er th

an

regu

latio

n in

the

first

inst

ance

. Loc

al e

xerc

ises

are

and

will

con

tinue

to b

e fu

nded

from

with

in lo

cal c

ivil

prot

ectio

n re

sour

ces.

The

Gov

ernm

ent a

lso

has a

nat

iona

l exe

rcis

e pr

ogra

mm

e. A

cro

ss-g

over

nmen

tal w

orki

ng p

arty

pro

vide

s a fo

rmal

mec

hani

sm fo

r re

view

ing

Dep

artm

enta

l exe

rcis

e pl

ans c

over

ing

a co

mpr

ehen

sive

rang

e of

dom

estic

cha

lleng

es a

nd c

ount

er te

rror

ist a

reas

of a

ctiv

ity.

The

aim

of t

his g

roup

is to

cre

ate

a pr

iorit

ised

pro

gram

me

of e

xerc

ises

that

will

refle

ct a

nd te

st e

ffec

tivel

y th

e ra

nge

of L

ead

Gov

ernm

ent D

epar

tmen

t res

pons

ibili

ties a

nd th

e in

volv

emen

t of t

he D

evol

ved

Adm

inis

tratio

ns, r

egio

nal a

nd lo

cal a

utho

ritie

s and

in

terd

epen

dent

com

mun

ities

of i

nter

est.

As a

t the

loca

l lev

el, t

he p

rogr

amm

e ru

ns o

n a

rolli

ng b

asis

to v

alid

ate

and

revi

ew g

over

nmen

t co

ntin

genc

y pl

ans.

In a

dditi

on, t

he U

K is

incr

easi

ngly

bei

ng e

ngag

ed in

exe

rcis

es w

ith fo

reig

n pa

rtner

s, ei

ther

on

a bi

late

ral b

asis

or t

hrou

gh m

ultil

ater

al

foru

ms i

.e. N

ATO

and

the

EU.

Cos

ts fo

r exe

rcis

es a

re a

dep

artm

enta

l res

pons

ibili

ty a

nd, t

here

fore

, are

inco

rpor

ated

with

in re

spec

tive

depa

rtmen

tal b

udge

ts. N

o ce

ntra

l ex

erci

se b

udge

t exi

sts,

nor a

re th

eir a

ny p

lans

to e

stab

lish

one.

41.

D

oes t

he G

over

nmen

t con

side

r tha

t the

ci

vil c

ontin

genc

y ar

rang

emen

ts w

hich

ha

ve e

mer

ged

sinc

e 20

01 a

nd w

hich

w

ould

be

enac

ted

by th

e B

ill re

quire

gr

eate

r res

ourc

es th

an th

ose

in o

pera

tion

befo

re 2

001?

The

Gov

ernm

ent h

as re

cogn

ised

sign

ifica

nt n

ew re

sour

ce p

ress

ures

in th

e U

K’s

resi

lienc

e si

nce

2001

. The

cha

ngin

g ris

k as

sess

men

t has

le

d to

subs

tant

ial n

ew in

vest

men

t in

a ra

nge

of a

reas

. A su

mm

ary

of th

is a

dditi

onal

exp

endi

ture

was

set o

ut in

the

Dra

ft C

ivil

Con

tinge

ncie

s Bill

Con

sulta

tion

Doc

umen

t (p

13-1

4). T

he G

over

nmen

t kee

ps th

is is

sue

unde

r clo

se re

view

. Th

e G

over

nmen

t bel

ieve

s tha

t the

cur

rent

leve

l of f

undi

ng is

suff

icie

nt to

supp

ort t

he b

asic

resp

onsi

bilit

ies t

hat f

low

from

the

Bill

. In

larg

e m

easu

re th

e dr

aft B

ill c

onso

lidat

es e

xist

ing

prac

tice,

for w

hich

org

anis

atio

ns a

re a

lread

y fu

nded

. The

con

sulta

tion

proc

ess

spec

ifica

lly in

vite

s vie

ws o

n th

is p

ositi

on.

128

The

sam

e fu

ndin

g ne

utra

lity

is b

road

ly tr

ue fo

r priv

ate

sect

or b

odie

s im

pact

ed b

y th

e dr

aft B

ill. M

ost o

f the

org

anis

atio

ns in

Cat

egor

y 2

are

alre

ady

subj

ect t

o ci

vil p

rote

ctio

n re

quire

men

ts a

s par

t of t

heir

regu

lato

ry re

gim

e. A

fulle

r ass

essm

ent o

f thi

s is s

et o

ut in

the

Part

ial

Regu

lato

ry Im

pact

Ass

essm

ent P

art 1

. Thi

s RIA

show

s tha

t ove

rall

the

bene

fits o

ut w

eigh

the

cost

s, an

d th

at th

e re

gula

tory

impa

ct is

m

inim

al.

42

.

Doe

s the

Gov

ernm

ent p

ropo

se to

incr

ease

or

redu

ce th

e re

sour

ces f

or c

ivil

cont

inge

ncie

s dis

tribu

ted

via

Rev

enue

Su

ppor

t Gra

nt o

nce

Civ

il D

efen

ce G

rant

is

abo

lishe

d?

The

Gov

ernm

ent h

as n

o pl

ans t

o ch

ange

the

leve

l of f

undi

ng fo

r civ

il co

ntin

genc

ies o

utsi

de o

f the

usu

al p

ublic

exp

endi

ture

pro

cess

es.

The

switc

h fr

om sp

ecifi

c gr

ant t

o R

even

ue S

uppo

rt G

rant

shou

ld b

e re

gard

ed a

s not

hing

mor

e th

an a

cha

nge

in th

e fu

ndin

g m

echa

nism

.

43.

If

Civ

il D

efen

ce G

rant

wer

e re

plac

ed

with

fund

ing

prov

ided

thro

ugh

Rev

enue

Su

ppor

t Gra

nt, h

ow w

ould

Par

liam

ent

know

how

muc

h su

ppor

t the

Gov

ernm

ent

was

giv

ing

to lo

cal a

utho

ritie

s to

supp

ort

plan

ning

for c

ivil

cont

inge

ncie

s?

The

over

all a

mou

nt p

rovi

ded

by G

over

nmen

t to

loca

l aut

horit

ies f

or c

ivil

cont

inge

ncie

s will

be

iden

tifia

ble,

as a

Cab

inet

Off

ice

trans

fer

to O

DPM

. The

am

ount

will

be

set o

ut in

the

mat

eria

l pro

vide

d to

loca

l gov

ernm

ent a

t the

tim

e of

the

anno

unce

men

t of t

he G

over

nmen

t's

prop

osal

s for

fund

ing

of lo

cal a

utho

rity

expe

nditu

re. P

rovi

sion

cur

rent

ly st

ands

at £

19m

illio

n. If

add

ition

al fu

nds a

re th

ough

t to

be

appr

opria

te, C

abin

et O

ffic

e w

ill b

id fo

r the

m in

the

usua

l way

and

tran

sfer

the

appr

oved

am

ount

s to

OD

PM, f

or d

istri

butio

n th

roug

h R

SG.

44

.

Will

the

Gov

ernm

ent p

rovi

de a

dditi

onal

re

sour

ces f

or lo

cal a

utho

ritie

s to:

(a) e

nter

bu

sine

ss re

cove

ry c

ontra

cts w

ith p

rivat

e se

ctor

pro

vide

rs; (

b) p

urch

ase

spar

e ca

paci

ty w

hen

acqu

iring

a n

ew sy

stem

or

faci

lity

in o

rder

to b

e ab

le to

pro

vide

as

sist

ance

to o

ther

loca

l aut

horit

ies u

nder

a

mut

ual s

uppo

rt ar

rang

emen

t; or

(c)

mee

t the

cos

ts o

f car

ryin

g ou

t exe

rcis

es?

The

Gov

ernm

ent e

xpec

ts th

at th

e fu

ndin

g cu

rren

tly p

rovi

ded

to lo

cal a

utho

ritie

s wou

ld c

over

all

thes

e el

emen

ts:

(a)

man

y lo

cal a

utho

ritie

s alre

ady

have

wel

l dev

elop

ed b

usin

ess r

ecov

ery

arra

ngem

ents

from

with

in e

xist

ing

reso

urce

s. (b

) m

any

mut

ual a

id a

gree

men

ts a

lread

y ex

ist b

etw

een

loca

l aut

horit

ies.

This

mut

ual a

id is

pro

vide

d on

the

basi

s of e

xist

ing

capa

city

, ra

ther

than

a sp

are

capa

city

ove

r and

abo

ve th

at.

(c)

Exer

cisi

ng is

rega

rded

as a

cen

tral e

lem

ent o

f the

pla

nnin

g pr

oces

s. Th

e co

sts o

f exe

rcis

ing

ther

efor

e al

read

y fa

ll w

ithin

exi

stin

g ci

vil p

rote

ctio

n bu

dget

s.

45.

If

a v

olun

tary

org

anis

atio

n w

ishe

d to

be

com

e in

volv

ed w

ith c

ontin

genc

y pl

anni

ng, w

ould

loca

l aut

horit

ies b

e ab

le

to in

clud

e th

em in

, for

exa

mpl

e, lo

cal

mee

tings

and

to p

ass p

aper

s to

them

? W

ould

loca

l aut

horit

ies b

e ab

le to

pay

th

eir c

osts

of a

ttend

ing

mee

tings

or

carr

ying

out

civ

il co

ntin

genc

y w

ork?

The

Gov

ernm

ent c

ontin

ues t

o pl

ace

a hi

gh v

alue

on

the

role

the

volu

ntar

y se

ctor

pla

ys in

the

resp

onse

to e

mer

genc

ies,

and

will

con

tinue

to

enc

oura

ge th

eir i

nvol

vem

ent i

n lo

cal m

ulti-

agen

cy p

lann

ing

and

resp

onse

thro

ugh

the

guid

ance

that

will

und

erpi

n th

e ne

w le

gisl

atio

n.

So lo

cal a

utho

ritie

s wou

ld b

e ab

le to

incl

ude

volu

ntar

y ag

enci

es in

loca

l pla

nnin

g, a

nd w

ould

be

able

to p

ay th

eir c

osts

of c

arry

ing

out

civi

l con

tinge

ncie

s wor

k.

46.

W

hy d

oes t

he B

ill n

ot in

clud

e a

mec

hani

sm to

rele

ase

fund

s to

thos

e Em

erge

ncy

regu

latio

ns u

nder

Par

t 2 o

f the

dra

ft B

ill c

ould

, if n

eces

sary

, be

used

to re

leas

e fu

nds a

s des

crib

ed.

129

carr

ying

out

func

tions

und

er e

mer

genc

y po

wer

s reg

ulat

ions

seek

ing

to p

reve

nt o

r co

ntro

l a c

risis

? 47

.

Why

has

the

Gov

ernm

ent d

ecid

ed n

ot to

br

ing

the

Bel

lwin

sche

me

with

in th

e C

ivil

Con

tinge

ncie

s Bill

?

The

Bel

lwin

Sch

eme

is b

ased

on

a st

atut

ory

prov

isio

n (S

ectio

n 15

5 of

the

Loca

l Gov

ernm

ent a

nd H

ousi

ng A

ct 1

989)

whi

ch g

ives

M

inis

ters

dis

cret

ion

to re

imbu

rse

loca

l aut

horit

ies f

or im

med

iate

act

ion

to sa

fegu

ard

life

and

prop

erty

or t

o pr

even

t suf

ferin

g or

seve

re

inco

nven

ienc

e in

thei

r are

a fo

llow

ing

an e

mer

genc

y or

dis

aste

r in

whi

ch th

ey w

ere

enda

nger

ed. I

t is n

ot d

esig

ned

to su

pple

men

t mai

n sp

endi

ng p

rogr

amm

es. A

s a re

sult

it ha

s not

bee

n us

ed fo

r inc

iden

ts su

ch a

s ter

roris

t bom

bs in

Lon

don

and

Man

ches

ter,

riots

in v

ario

us

parts

of t

he c

ount

ry o

r blo

ck o

f fla

ts in

dan

ger o

f fal

ling

dow

n du

e to

det

erio

ratin

g co

nditi

ons o

f mai

nten

ance

. A

revi

ew o

f the

Sch

eme

was

con

duct

ed in

200

1 fo

llow

ing

whi

ch it

was

felt

that

a c

hang

e to

the

stat

utor

y ba

sis o

f the

Sch

eme

wou

ld n

ot

be a

ppro

pria

te.

48

.

On

aver

age

how

long

doe

s it t

ake

for

fund

s to

be re

leas

ed u

nder

Bel

lwin

? M

inis

ters

are

com

mitt

ed to

mak

ing

paym

ents

with

in 1

5 w

orki

ng d

ays o

f rec

eivi

ng v

alid

cla

ims.

The

maj

ority

of p

aym

ents

are

mad

e w

ithin

this

tim

e.

49.

D

oes B

ellw

in in

clud

e in

tere

st o

n m

oney

s bo

rrow

ed p

endi

ng re

imbu

rsem

ent u

nder

th

e sc

hem

e?

No.

The

stat

ute

prov

ides

for r

eim

burs

emen

t of c

osts

incu

rred

on

rele

vant

act

iviti

es o

nly.

50.

H

ow m

any

appl

icat

ions

for

reim

burs

emen

t und

er B

ellw

in h

ave

been

re

fuse

d si

nce

the

sche

me

cam

e in

to

oper

atio

n? W

hat m

atte

rs w

ere

the

subj

ect

of th

ese

appl

icat

ions

and

how

muc

h m

oney

was

invo

lved

?

Det

aile

d st

atis

tics a

re n

ot k

ept i

n re

latio

n to

the

num

ber o

f suc

cess

ful a

nd u

nsuc

cess

ful a

pplic

atio

ns m

ade.

In p

ract

ice,

how

ever

, re

ject

ions

are

ver

y ra

re b

ecau

se d

etai

led

guid

ance

is is

sued

at t

he b

egin

ning

of e

ach

finan

cial

yea

r set

ting

out t

he c

riter

ia fo

r re

imbu

rsem

ent.

This

redu

ces t

he li

kelih

ood

of a

utho

ritie

s sub

mitt

ing

clai

ms w

hich

do

not q

ualif

y un

der t

he sc

hem

e..

Mili

tary

51.

W

hat i

s the

sign

ifica

nce

and

diff

eren

ces

betw

een

the

term

s use

d to

cov

er m

ilita

ry

supp

ort t

o th

e ci

vil a

utho

ritie

s? F

or

exam

ple,

“D

ealin

g w

ith D

isas

ter”

refe

rs

to M

ilita

ry A

id to

the

Civ

il C

omm

unity

(p

age

14) b

ut th

e M

inis

ter o

f Sta

te fo

r the

A

rmed

For

ces (

Mr I

ngra

m) i

n re

plyi

ng to

a

ques

tion

from

Mr L

ansl

ey re

ferr

ed to

M

ilita

ry A

id to

the

Civ

il Po

wer

(Offi

cial

Re

port

, 25

Feb

2003

, Col

umn

444W

).

Mili

tary

Aid

to th

e C

ivil

Aut

horit

ies i

s the

gen

eric

term

for a

ll m

ilita

ry a

ssis

tanc

e to

the

civi

l aut

horit

ies.

It is

div

ided

into

thre

e m

ain

cate

gorie

s, de

pend

ing

upon

the

prec

ise

circ

umst

ance

s in

whi

ch it

is p

rovi

ded,

as f

ollo

ws:

M

ilita

ry A

id to

the

Civ

il Po

wer

(MA

CP)

is th

e pr

ovis

ion

of m

ilita

ry a

ssis

tanc

e to

the

Civ

il Po

wer

in th

e m

aint

enan

ce o

f law

, ord

er a

nd

publ

ic sa

fety

usi

ng sp

ecia

list c

apab

ilitie

s or e

quip

men

t, in

situ

atio

ns b

eyon

d th

e ca

paci

ty o

f the

Civ

il Po

wer

. M

ilita

ry A

ssis

tanc

e to

Oth

er G

over

nmen

t Dep

artm

ents

(MA

GD

) is a

ssis

tanc

e pr

ovid

ed b

y th

e Se

rvic

es o

n ur

gent

wor

k of

nat

iona

l im

porta

nce

or in

mai

ntai

ning

supp

lies a

nd se

rvic

es e

ssen

tial t

o lif

e, h

ealth

and

safe

ty o

f the

com

mun

ity, e

spec

ially

but

not

exc

lusi

vely

du

ring

indu

stria

l dis

pute

s. M

ilita

ry A

id to

the

Civ

il C

omm

unity

(MA

CC

) fal

ls in

to th

ree

cate

gorie

s:

130

• C

ateg

ory

A: A

ssis

tanc

e in

tim

es o

f em

erge

ncy

such

as n

atur

al d

isas

ters

or m

ajor

acc

iden

ts. A

ssis

tanc

e id

gen

eral

ly p

rovi

ded

to th

e em

erge

ncy

serv

ices

(pol

ice,

fire

, am

bula

nce,

mar

itim

e se

arch

and

resc

ue su

ppor

t to

HM

Coa

stgu

ard

and

- whe

n un

der d

irect

ion

- th

e m

ount

ain/

cave

resc

ue se

rvic

e.)

• C

ateg

ory

B: S

hort-

term

rout

ine

assi

stan

ce o

n sp

ecia

l pro

ject

s of s

igni

fican

t val

ue to

the

civi

l com

mun

ity.

• C

ateg

ory

C: T

he fu

ll-tim

e at

tach

men

t of v

olun

teer

s to

soci

al se

rvic

es (o

r sim

ilar)

org

anis

atio

ns fo

r spe

cific

per

iods

."

52.

In

the

past

20

year

s, on

how

man

y oc

casi

ons,

and

for w

hat p

urpo

ses,

has

Mili

tary

Aid

to th

e C

ivil

Com

mun

ity

been

pro

vide

d an

d, if

ther

e is

a

diff

eren

ce, t

o th

e C

ivil

Pow

er?

How

m

uch

of th

e co

st h

as b

een

reco

vere

d fr

om

the

bene

ficia

ries?

In h

ow m

any

inst

ance

s ha

ve c

osts

bee

n w

aive

d an

d w

hat v

alue

of

cha

rges

has

bee

n w

aive

d?

It is

not

pos

sibl

e to

pro

vide

full

deta

ils o

f all

depl

oym

ents

und

erta

ken

over

the

last

20

year

s or t

o pr

ovid

e de

tails

of c

osts

cha

rged

and

w

aive

d. It

is, h

owev

er, p

ossi

ble

to il

lust

rate

the

exte

nt o

f the

pro

visi

on o

f the

thre

e ca

tego

ries o

f Mili

tary

Ass

ista

nce

and

the

prin

cipl

es

unde

r whi

ch c

harg

es a

re ra

ised

. M

ilita

ry A

id to

the

Civ

il Po

wer

(MA

CP)

is d

efin

ed a

s ‘th

e pr

ovis

ion

of m

ilita

ry a

ssis

tanc

e to

the

Civ

il Po

wer

in th

e m

aint

enan

ce o

f la

w, o

rder

and

pub

lic sa

fety

usi

ng sp

ecia

list c

apab

ilitie

s or e

quip

men

t, in

situ

atio

ns b

eyon

d th

e ca

paci

ty o

f the

Civ

il Po

wer

.’ (P

rovi

sion

of

supp

ort t

o th

e Po

lice

Serv

ice

of N

orth

ern

Irel

and

is b

ased

on

the

sam

e pr

inci

ples

as M

AC

P, b

ut is

trea

ted

as a

sepa

rate

sub-

cate

gory

of

the

over

all p

rovi

sion

. It h

as th

eref

ore

been

exc

lude

d fr

om fu

rther

con

side

ratio

n.)

As t

he M

inis

ter o

f Sta

te fo

r the

Arm

ed F

orce

s (M

r Ing

ram

) ind

icat

ed in

his

repl

y to

And

rew

Lan

sley

on

25 F

ebru

ary

2003

, MA

CP

supp

ort i

s for

the

mos

t par

t rou

tine,

and

is li

nked

to a

ctiv

e po

lice

inve

stig

atio

ns a

nd o

pera

tions

. By

far t

he la

rges

t sin

gle

cate

gory

co

ncer

ns e

xplo

sive

dev

ices

. The

re w

ere

957

occa

sion

s in

2001

whe

n ex

perts

from

the

Arm

ed F

orce

s wer

e as

ked

by th

e po

lice

to p

rovi

de

supp

ort i

n th

e in

vest

igat

ion

of im

prov

ised

exp

losi

ve d

evic

es, a

nd 4

31 o

ccas

ions

in 2

002.

The

pro

visi

on o

f oth

er su

ppor

t, th

e na

ture

of

whi

ch v

arie

s con

side

rabl

y, is

aut

horis

ed o

n a

case

by

case

bas

is. O

n av

erag

e be

twee

n 30

and

40

of th

ese

requ

ests

are

aut

horis

ed e

ach

year

. A sm

all p

ropo

rtion

of M

AC

P re

ques

ts a

re re

late

d to

the

terr

oris

t thr

eat,

but b

y no

mea

ns a

ll. (O

ffici

al R

epor

t, 25

Feb

200

3,

Col

umn

444W

).

The

figur

es q

uote

d in

the

Offi

cial

Rep

ort o

n 25

Feb

ruar

y ill

ustra

te th

e av

erag

e nu

mbe

r of c

alls

on

MA

CP

supp

ort.

Det

ails

of t

he k

inds

of

inci

dent

s atte

nded

and

the

capa

bilit

ies d

eplo

yed

cann

ot b

e pr

ovid

ed in

an

uncl

assi

fied

form

at.

Mili

tary

Ass

ista

nce

to O

ther

Gov

ernm

ent D

epar

tmen

ts (M

AG

D) i

s def

ined

as ‘

assi

stan

ce p

rovi

ded

by th

e Se

rvic

es o

n ur

gent

wor

k of

nat

iona

l im

porta

nce

or in

mai

ntai

ning

supp

lies a

nd se

rvic

es e

ssen

tial t

o th

e lif

e, h

ealth

and

safe

ty o

f the

com

mun

ity, e

spec

ially

but

no

t exc

lusi

vely

dur

ing

indu

stria

l dis

pute

s.’ M

AG

D su

ppor

t has

bee

n pr

ovid

ed re

gula

rly d

urin

g lo

cal a

utho

rity

fire

strik

es a

s wel

l as

durin

g th

e re

cent

nat

iona

l fire

dis

pute

. It w

as a

lso

prov

ided

(in

supp

ort o

f the

DTI

) dur

ing

the

fuel

dis

pute

in th

e au

tum

n of

200

0 an

d (in

su

ppor

t of M

AFF

/DEF

RA

) dur

ing

the

2001

foot

and

mou

th e

pide

mic

. A li

st o

f MA

GD

ope

ratio

ns si

nce

1983

is a

ttach

ed (a

t Ann

ex B

). M

ilita

ry A

id to

the

Civ

il C

omm

unity

(MA

CC

) fal

ls in

to th

ree

cate

gorie

s:

• C

ateg

ory

A: A

ssis

tanc

e in

tim

es o

f em

erge

ncy

such

as n

atur

al d

isas

ters

or m

ajor

acc

iden

ts. A

ssis

tanc

e is

gen

eral

ly p

rovi

ded

to th

e em

erge

ncy

serv

ices

(pol

ice,

fire

, am

bula

nce,

mar

itim

e se

arch

and

resc

ue su

ppor

t to

HM

Coa

stgu

ard

and

– w

hen

unde

r dire

ctio

n –

131

the

mou

ntai

n/ca

ve re

scue

serv

ice)

.

• C

ateg

ory

B: S

hort-

term

rout

ine

assi

stan

ce o

n sp

ecia

l pro

ject

s of s

igni

fican

t soc

ial v

alue

to th

e ci

vil c

omm

unity

.

• C

ateg

ory

C: T

he fu

ll-tim

e at

tach

men

t of v

olun

teer

s to

soci

al se

rvic

es (o

r sim

ilar)

org

anis

atio

ns fo

r spe

cific

per

iods

. A

n ill

ustra

tive

list o

f MA

CC

Cat

egor

y A

inci

dent

s sin

ce 1

983

is a

ttach

ed a

t Ann

ex C

. In

view

of t

he fa

ct th

at C

ateg

ory

A in

corp

orat

es

the

imm

edia

te re

spon

se to

an

emer

genc

y, w

e ca

nnot

gua

rant

ee th

at th

is c

over

s all

of th

e in

cide

nts f

or w

hich

this

supp

ort h

as b

een

prov

ided

. MA

CC

Cat

egor

y B

and

Cat

egor

y C

supp

ort f

all o

utsi

de th

e sc

ope

of su

ppor

t to

the

civi

l aut

horit

ies d

urin

g em

erge

ncie

s. C

OST

S R

egre

ttabl

y it

is im

poss

ible

to p

rovi

de d

etai

led

info

rmat

ion

on th

e co

sts c

harg

ed fo

r Mili

tary

Aid

to th

e C

ivil

Aut

horit

ies.

Cos

ts o

f in

divi

dual

ope

ratio

ns a

re g

ener

ally

low

and

are

by

and

larg

e re

imbu

rsed

dire

ct to

the

budg

ets w

hich

incu

rred

the

cost

s. So

me

stan

ding

op

erat

ions

are

par

tially

fund

ed b

y ot

her g

over

nmen

t dep

artm

ents

(for

inst

ance

the

Hom

e O

ffic

e co

ntrib

utes

abo

ut £

2M p

er a

nnum

to th

e co

st o

f exp

losi

ve o

rdna

nce

disp

osal

supp

ort t

o th

e po

lice)

. M

AG

D o

pera

tions

tend

to le

ad to

the

grea

test

cos

ts a

nd a

tabl

e sh

owin

g th

e co

sts c

harg

ed to

oth

er g

over

nmen

t dep

artm

ents

as a

resu

lt of

re

cent

MA

GD

ope

ratio

ns is

ther

efor

e at

tach

ed a

t Ann

ex D

. We

wou

ld su

gges

t cau

tion

whe

n co

mpa

ring

the

cost

s of t

hese

ope

ratio

ns. I

n pa

rticu

lar,

durin

g th

e fu

el d

ispu

te a

nd fo

ot a

nd m

outh

epi

dem

ics t

he c

osts

of a

dditi

onal

equ

ipm

ent,

vehi

cle

hire

etc

, wer

e ge

nera

lly

born

e di

rect

ly b

y th

e re

ques

ting

depa

rtmen

t. D

urin

g th

e fir

e di

sput

e th

e M

OD

pur

chas

ed a

dditi

onal

equ

ipm

ent a

nd h

ired

vehi

cles

etc

an

d th

en so

ught

reim

burs

emen

t of t

hese

cos

ts fr

om th

e re

ques

ting

Dep

artm

ent.

CH

AR

GIN

G P

RIN

CIP

LE

S M

OD

pol

icy

is b

ased

on

Cha

pter

23

of G

over

nmen

t Acc

ount

ing

(GA

). G

oods

and

serv

ices

pro

vide

d to

the

depa

rtmen

t or o

ther

age

ncy

or a

utho

rity

havi

ng p

olic

y an

d th

eref

ore

finan

cial

resp

onsi

bilit

y sh

ould

be

char

ged

for u

nles

s the

re a

re e

xcep

tiona

l circ

umst

ance

s. Th

e pu

rpos

e is

to e

nsur

e vi

sibi

lity

and

to g

ive

the

cust

omer

dep

artm

ent a

gre

ater

ince

ntiv

e to

use

ass

ets e

ffic

ient

ly a

nd e

cono

mic

ally

. Pa

rliam

ent v

otes

MO

D it

s mon

ey fo

r def

ence

pur

pose

s onl

y. If

def

ence

ass

ets a

re u

sed

to c

arry

out

task

s for

whi

ch a

noth

er g

over

nmen

t de

partm

ent h

as p

rime

resp

onsi

bilit

y, c

harg

es n

eed

to b

e ra

ised

or e

lse

MO

D w

ill b

e le

ft be

arin

g im

prop

er e

xpen

ditu

re o

n its

bud

get.

Lev

els o

f Cha

rge:

Gov

ernm

ent A

ccou

ntin

g ta

kes a

s its

star

ting

poin

t the

full

cost

of a

n ac

tivity

. In

deci

ding

whe

ther

to d

epar

t fro

m

full-

cost

cha

rgin

g fo

r unf

unde

d ac

tiviti

es, h

owev

er, M

OD

take

s acc

ount

of w

heth

er th

e ac

tivity

can

be

carr

ied

out f

rom

with

in sp

are

capa

city

, the

det

rimen

t to

core

def

ence

task

s and

the

train

ing

valu

e to

MO

D. A

bate

men

t gen

eral

ly m

eans

cha

rgin

g a

rate

var

ious

ly

refe

rred

to a

s “no

-loss

”, “

extra

” or

“ad

ditio

nal”

cos

t – i.

e. th

e am

ount

whi

ch w

ould

not

hav

e be

en in

curr

ed h

ad th

e ac

tivity

not

take

n

132

plac

e. In

sum

, MO

D se

eks t

o en

sure

that

the

defe

nce

budg

et d

oes n

ot su

ffer

as a

resu

lt of

the

unsc

hedu

led

activ

ity b

ut th

at it

mak

es n

o ga

in e

ither

. A

reas

whe

re M

OD

shou

ld in

stric

tnes

s cha

rge

full

cost

s are

whe

re th

e ac

tivity

is c

onsi

dere

d a.

to

brin

g de

trim

ent t

o a

prio

rity

defe

nce

task

, and

/or

b.

to re

quire

MO

D to

incr

ease

its n

umbe

r of m

ilita

ry p

erso

nnel

spec

ifica

lly to

supp

ort a

noth

er d

epar

tmen

t’s re

spon

sibi

litie

s. A

prim

e ex

ampl

e of

the

form

er is

an

activ

ity th

at b

ecom

es su

ffic

ient

ly p

rotra

cted

to b

e re

gard

ed a

s rou

tine

rath

er th

an e

mer

genc

y in

na

ture

. Eve

n w

ith d

ue re

gard

to a

n in

terd

epar

tmen

tal a

gree

men

t (da

ting

from

198

2) c

once

rnin

g no

-loss

cha

rgin

g re

gim

e fo

r fire

strik

es,

MO

D h

as fo

r som

e ye

ars s

uppo

rted

the

need

to c

hang

e to

full-

cost

cha

rgin

g fo

r fire

fight

ing

durin

g an

ext

ende

d st

rike

perio

d.

Cos

t Wai

vers

: In

2001

MO

D si

mpl

ified

its c

harg

ing

regi

me

in th

e U

K fo

r MA

CC

ass

ista

nce,

allo

win

g em

erge

ncy

assi

stan

ce to

be

give

n fr

ee w

here

ther

e is

a d

ange

r to

life

(rat

her t

han

only

"im

med

iate

" da

nger

whi

ch a

pplie

d pr

evio

usly

), an

d at

full

cost

onc

e th

e da

nger

has

pas

sed.

Em

erge

ncy

MA

CC

is a

rapi

d re

spon

se b

y th

e Se

rvic

es to

sudd

en d

isas

ter:

it an

d its

cha

rgin

g re

gim

e sh

ould

not

be

conf

used

with

MA

CP

or M

AG

D. N

on-e

mer

genc

y M

AC

C a

ttrac

ts c

harg

es th

e le

vel o

f whi

ch la

rgel

y de

pend

s on

the

exte

nt o

f the

ac

tivity

's ad

vant

age

to M

OD

. 53

.

Wha

t is t

he b

asis

on

whi

ch m

ilita

ry

supp

ort t

o ci

vil a

utho

ritie

s is p

rovi

ded?

In

a w

ritte

n an

swer

to M

r Lan

sley

on

25 F

eb

2003

, the

Min

iste

r of S

tate

for t

he A

rmed

Fo

rces

(Mr I

ngra

m) s

aid

that

, in

com

mon

w

ith a

ll ar

med

forc

es d

eplo

ymen

ts, t

he

prov

isio

n of

Mili

tary

Aid

to th

e C

ivil

Pow

er (M

AC

P) is

aut

horis

ed b

y a

Min

iste

r with

in th

e M

inis

try o

f Def

ence

, fo

llow

ing

a re

ques

t fro

m th

e po

lice.

The

le

gal b

asis

for t

his i

s the

com

mon

law

du

ty o

f eve

ry c

itize

n to

pro

vide

re

ason

able

supp

ort t

o th

e po

lice

shou

ld

they

requ

est i

t. Th

e pr

imac

y of

the

polic

e is

reco

gnis

ed a

t all

times

. (O

ffici

al

Repo

rt, 2

5 Fe

b 20

03, C

olum

n 44

4W).

Wou

ld tr

oops

dep

loye

d fo

llow

ing

a st

ate

of e

mer

genc

y be

dep

loye

d un

der t

his

com

mon

law

pow

er?

Wha

t oth

er p

ower

s co

uld

be u

sed?

Can

forc

es b

e m

oved

or

All

depl

oym

ents

of t

he A

rmed

For

ces a

re a

utho

rised

und

er th

e R

oyal

Pre

roga

tive,

the

Prer

ogat

ive

bein

g ve

sted

in th

e D

efen

ce C

ounc

il,

and

in p

artic

ular

in it

s cha

irman

, the

Sec

reta

ry o

f Sta

te fo

r Def

ence

. With

the

Secr

etar

y of

Sta

te’s

agr

eem

ent,

othe

r MO

D M

inis

ters

can

al

so a

utho

rise

depl

oym

ents

. In

prac

tice,

mos

t MA

CA

dep

loym

ents

are

aut

horis

ed b

y th

e M

inis

ter o

f Sta

te fo

r the

Arm

ed F

orce

s. U

se o

f the

Roy

al P

rero

gativ

e m

ust a

ccor

d w

ith c

omm

on, s

tatu

te, a

nd in

tern

atio

nal l

aw. T

he g

ener

al le

gal b

asis

whi

ch e

nabl

es th

e Se

cret

ary

of S

tate

to a

utho

rise

the

depl

oym

ent o

f the

Arm

ed F

orce

s in

supp

ort o

f the

pol

ice

(MA

CP)

is th

at o

utlin

ed in

the

answ

er g

iven

to

Mr L

ansl

ey o

n 25

Feb

200

3: i.

e. th

e co

mm

on la

w d

uty

of e

very

citi

zen

to p

rovi

de re

ason

able

supp

ort.

The

gene

ral l

egal

bas

is fo

r MA

GD

is se

ctio

n 2

of th

e Em

erge

ncy

Pow

ers A

ct 1

964.

Thi

s ena

bles

the

Def

ence

Cou

ncil

to in

stru

ct th

e A

rmed

For

ces t

o un

derta

ke ‘a

gric

ultu

ral a

nd o

ther

wor

k of

urg

ent n

atio

nal i

mpo

rtanc

e’ th

at w

ould

not

nor

mal

ly fa

ll w

ithin

the

rem

it of

th

e A

rmed

For

ces.

Proc

edur

es e

xist

with

in th

e M

OD

to e

nsur

e th

at th

e po

wer

s und

er th

is A

ct a

re p

rope

rly a

nd re

ason

ably

exe

rcis

ed,

incl

udin

g, in

par

ticul

ar, t

he n

eed

for a

spec

ific

Def

ence

Cou

ncil

Ord

er to

be

sign

ed b

y tw

o m

embe

rs o

f the

Def

ence

Cou

ncil,

on

the

sam

e da

y, p

rior t

o an

y de

ploy

men

t. (M

AG

D.)

MA

CC

Cat

egor

y A

is a

utho

rised

und

er a

Def

ence

Cou

ncil

Ord

er si

gned

in 1

983

(des

crib

ed in

Que

en’s

Reg

ulat

ions

). U

nit c

omm

ande

rs

are

auth

oris

ed to

pro

vide

supp

ort (

gene

rally

to th

e po

lice

or o

ther

em

erge

ncy

serv

ices

) on

thei

r ow

n au

thor

ity, b

ut o

nly

whe

n liv

es a

re in

da

nger

, usi

ng re

sour

ces u

nder

thei

r dire

ct c

omm

and,

and

follo

win

g a

clea

r req

uest

from

the

polic

e or

oth

er e

mer

genc

y se

rvic

es fo

r tha

t su

ppor

t. Th

ey th

en se

ek fu

ll au

thor

isat

ion

thro

ugh

thei

r com

man

d ch

ain,

whi

ch in

clud

es M

OD

Min

iste

rs. S

usta

inin

g su

ppor

t pas

t the

po

int w

hen

lives

are

in d

ange

r req

uire

s exp

licit

prio

r aut

horis

atio

n fr

om a

Def

ence

Min

iste

r.

133

depl

oyed

by

Roy

al P

rero

gativ

e?

Supp

ort t

o th

e po

lice

in th

e in

vest

igat

ion

of e

xplo

sive

dev

ices

has

bee

n pr

ovid

ed a

t lea

st si

nce

the

Firs

t Wor

ld W

ar. E

xcep

tiona

lly,

indi

vidu

al a

ppro

val f

or e

ach

inve

stig

atio

n in

to e

xplo

sive

ord

nanc

e is

not

requ

ired,

thou

gh si

gnifi

cant

and

unu

sual

eve

nts a

re re

porte

d to

M

OD

Min

iste

rs.

In a

dditi

on to

the

need

to e

nsur

e pr

oper

aut

horis

atio

n un

der t

he R

oyal

Pre

roga

tive,

MO

D M

inis

ters

als

o co

nsid

er th

e ‘r

easo

nabl

enes

s’ o

f an

y re

ques

t and

any

oth

er is

sues

whi

ch m

ay a

rise,

bef

ore

appr

ovin

g a

depl

oym

ent.

Thes

e co

nsid

erat

ions

incl

ude

polic

y an

d co

st is

sues

, an

d th

e im

pact

on

the

Arm

ed F

orce

s of a

gree

ing

to th

e re

ques

t. Si

nce

the

Arm

ed F

orce

s are

by

defin

ition

und

erta

king

dut

ies f

or w

hich

ot

her a

utho

ritie

s are

resp

onsi

ble,

they

shou

ld o

nly

be c

alle

d up

on a

s a la

st re

sort

and

whe

n ot

her p

ossi

bilit

ies h

ave

been

exh

aust

ed.

Req

uest

s for

supp

ort t

hat d

o no

t mee

t the

se c

riter

ia a

re, b

y de

finiti

on, u

nrea

sona

ble.

M

OD

Min

iste

rs a

lso

take

into

acc

ount

any

spec

ific

lega

l fac

tors

aris

ing

from

a p

artic

ular

requ

est,

to e

nsur

e th

at th

e A

rmed

For

ces a

re

actin

g fu

lly w

ithin

the

law

. The

y w

ould

not

, for

inst

ance

, aut

horis

e th

e A

rmed

For

ces t

o un

derta

ke d

irect

ly a

ny a

ctio

n th

at re

quire

s po

lice

pow

ers,

sinc

e th

ese

pow

ers a

re n

ot v

este

d in

the

Arm

ed F

orce

s (an

d ev

en fr

om a

pra

ctic

al p

ersp

ectiv

e, th

e A

rmed

For

ces a

re n

ot

train

ed to

use

thes

e po

wer

s). D

efen

ce C

ounc

il O

rder

s aut

horis

e th

e A

rmed

For

ces t

o un

derta

ke sp

ecifi

c ta

sks i

n su

ppor

t of t

he c

ivil

auth

oriti

es, r

athe

r tha

n co

mm

issi

onin

g th

e A

rmed

For

ces w

ith g

ener

ic p

ower

s. Th

e us

e of

the

Roy

al P

rero

gativ

e sh

ould

not

, the

refo

re, b

e ta

ken

as im

plyi

ng th

at th

e A

rmed

For

ces h

ave

any

pow

ers o

r aut

horit

y ov

er

and

abov

e th

ose

of th

e or

dina

ry c

itize

n. T

he p

ower

to d

eplo

y th

e A

rmed

For

ces i

s ves

ted

in th

e D

efen

ce C

ounc

il, b

ut c

ivil

prim

acy

and

resp

onsi

bilit

y is

reco

gnis

ed a

t all

times

, with

the

Arm

ed F

orce

s act

ing

unde

r mili

tary

com

man

d bu

t und

er th

e su

perv

isio

n of

the

polic

e or

oth

er c

ivil

auth

ority

. Cle

arly

, the

refo

re, t

he M

OD

wou

ld n

ot a

utho

rise

the

depl

oym

ent o

f the

Arm

ed F

orce

s in

supp

ort o

f the

pol

ice

with

out a

cle

ar re

ques

t fro

m th

e po

lice

and

(in v

iew

of i

ts o

vera

ll re

spon

sibi

lity

for p

olic

e is

sues

) the

agr

eem

ent o

f the

Hom

e O

ffic

e.

Nor

wou

ld it

aut

horis

e a

MA

GD

dep

loym

ent w

ithou

t a c

lear

requ

est f

rom

the

rele

vant

cen

tral g

over

nmen

t dep

artm

ent (

incl

udin

g, in

the

case

of t

he d

evol

ved

regi

ons,

the

Scot

land

, Wal

es, o

r Nor

ther

n Ir

elan

d O

ffic

es).

Th

e de

clar

atio

n of

a st

ate

of e

mer

genc

y un

der t

he C

ivil

Con

tinge

ncie

s Bill

will

not

alte

r any

of t

he fa

ctor

s out

lined

abo

ve. I

t will

not

be

nece

ssar

y to

wai

t for

a st

ate

of e

mer

genc

y to

be

decl

ared

, and

em

erge

ncy

pow

ers i

ntro

duce

d, b

efor

e co

nsid

erat

ion

is g

iven

to a

requ

est

for a

rmed

forc

es su

ppor

t. N

or w

ould

a st

ate

of e

mer

genc

y au

tom

atic

ally

lead

to th

e en

gage

men

t of M

OD

supp

ort.

It is

, how

ever

, re

ason

able

to e

xpec

t tha

t (in

pra

ctic

e) th

e fa

ctor

s whi

ch m

ight

lead

to th

e de

clar

atio

n of

a st

ate

of e

mer

genc

y w

ould

als

o in

fluen

ce th

e Se

cret

ary

of S

tate

for D

efen

ce w

hen

judg

ing

the

‘rea

sona

blen

ess’

of a

requ

est f

rom

the

polic

e or

a c

entra

l gov

ernm

ent D

epar

tmen

t to

prov

ide

supp

ort.

54

.

Wou

ld th

e po

wer

s and

arr

ange

men

ts

unde

r whi

ch th

e R

egul

ar A

rmy

is

depl

oyed

app

ly a

utom

atic

ally

to th

e Te

rrito

rial A

rmy?

All

the

arra

ngem

ents

out

lined

in a

nsw

er to

que

stio

ns 5

2 an

d 53

app

ly e

qual

ly to

the

depl

oym

ent o

f the

Ter

ritor

ial A

rmy

and

othe

r re

serv

e fo

rces

. In

add

ition

, it i

s not

MO

D p

olic

y to

em

ploy

the

Res

erve

s in

unde

rtaki

ng d

utie

s dire

ctly

ass

ocia

ted

with

indu

stria

l dis

pute

s. A

lthou

gh

MO

D su

ppor

t in

thes

e ca

ses i

s pro

vide

d so

lely

to e

nsur

e th

at b

asic

leve

ls o

f ess

entia

l ser

vice

s are

mai

ntai

ned,

car

e is

take

n no

t to

caus

e

134

tens

ion

with

in lo

cal c

omm

uniti

es, o

r to

prov

oke

a di

visi

on o

f ind

ivid

ual l

oyal

ties,

that

mig

ht re

sult

from

Res

erve

per

sonn

el u

nder

taki

ng

thes

e ac

tiviti

es.

For t

he m

ost p

art,

Res

erve

s inv

olve

men

t in

MA

CA

ope

ratio

ns is

pur

ely

volu

ntar

y. N

onet

hele

ss, s

ectio

ns 5

1, 5

2, 5

4 an

d 56

of t

he

Res

erve

For

ces A

ct 1

996

prov

ide

the

nece

ssar

y le

gal p

ower

s for

rapi

d m

obili

satio

n by

MO

D M

inis

ters

for M

AC

A ta

sks,

shou

ld th

ey b

e re

quire

d. A

s par

t of t

he in

trodu

ctio

n of

Civ

il C

ontin

genc

ies R

eser

ve F

orce

s, re

gula

tions

are

bei

ng d

rafte

d th

at w

ill a

llow

cal

lout

not

ices

to

be

prod

uced

and

serv

ed v

ery

quic

kly

afte

r Min

iste

rial a

utho

rity

has b

een

gran

ted

and

a C

allo

ut O

rder

sign

ed.

L

ocal

aut

hori

ty d

utie

s

55.

Th

e C

abin

et O

ffic

e st

ates

that

the

Bill

“g

ives

[s] a

stat

utor

y ba

sis t

o w

hat i

s la

rgel

y ex

istin

g pr

actic

e, p

rovi

ding

a

cohe

rent

fram

ewor

k ac

ross

are

as, l

eadi

ng

to c

onsi

sten

t exp

ecta

tions

.”(C

onsu

ltatio

n do

cum

ent,

p40)

. How

do

the

dutie

s en

visa

ged

in th

e dr

aft B

ill d

iffer

from

the

dutie

s loc

al a

utho

ritie

s alre

ady

unde

rtake

in

this

are

a?

Cur

rent

ly, l

ocal

resp

onde

rs in

Cat

egor

ies 1

and

2 c

arry

out

thei

r fun

ctio

ns a

nd p

ower

s acc

ordi

ng to

thei

r ow

n m

anag

eria

l dec

isio

ns a

nd

on th

e ba

sis o

f gen

eral

gui

danc

e, D

ealin

g w

ith D

isas

ter,

and

spec

ific

guid

ance

rela

ting

to th

eir p

artic

ular

func

tions

. The

re is

no

over

-ar

chin

g fr

amew

ork.

Th

e B

ill in

trodu

ces a

n ov

er-a

rchi

ng fr

amew

ork

whi

ch w

ill o

blig

e al

l the

loca

l res

pond

er b

odie

s to

mak

e so

me

adju

stm

ents

tow

ards

gr

eate

r con

sist

ency

. Reg

ulat

ions

and

gui

danc

e w

ill c

larif

y th

e ex

pect

ed fr

amew

ork;

and

to w

hat e

xten

t cha

nges

are

requ

ired

will

var

y de

pend

ing

on c

urre

nt p

ract

ice

of in

divi

dual

aut

horit

ies.

Key

diff

eren

ces a

re li

kely

to in

clud

e a

grea

ter e

mph

asis

on

risk

man

agem

ent a

nd

stro

nger

bus

ines

s con

tinui

ty m

anag

emen

t.

56.

U

nder

the

Civ

il D

efen

ce A

ct 1

948

loca

l au

thor

ities

had

pow

ers t

o co

mpu

lsor

ily

acqu

ire la

nd fo

r civ

il de

fenc

e pu

rpos

es.

Und

er w

hat p

ower

s wou

ld th

ey e

xerc

ise

thes

e fu

nctio

ns if

the

Civ

il C

ontin

genc

ies

Bill

bec

ame

law

?

The

Civ

il D

efen

ce A

ct 1

948

gave

a p

ower

to c

ompu

lsor

ily a

cqui

re la

nd fo

r civ

il de

fenc

e pu

rpos

es to

loca

l aut

horit

ies i

dent

ified

in

sect

ion

8(1)

of t

he A

cqui

sitio

n of

Lan

d (A

utho

risat

ion

Proc

edur

e) A

ct 1

946

(now

, in

Eng

land

and

Wal

es, r

epla

ced

by th

e A

cqui

sitio

n of

Lan

d A

ct 1

981.

) Th

e G

over

nmen

t has

not

repr

oduc

ed th

is p

rovi

sion

. It d

oes n

ot c

onsi

der t

hat l

ocal

resp

onde

rs re

quire

pow

ers (

or, i

n th

e ca

se o

f loc

al

auth

oriti

es, f

urth

er p

ower

s) to

com

puls

orily

acq

uire

land

in th

e co

urse

of c

ontin

genc

y pl

anni

ng.

How

ever

, if a

dec

lara

tion

of e

mer

genc

y is

mad

e un

der P

art 2

of t

he B

ill, u

nder

cla

use

21(3

)(a)

em

erge

ncy

regu

latio

ns c

an c

onfe

r a

func

tion

on a

spec

ified

per

son,

whi

ch c

ould

be

som

eone

at l

ocal

aut

horit

y le

vel,

and

unde

r cla

use

21(3

)(b)

regu

latio

ns c

ould

be

mad

e to

en

able

the

requ

isiti

on o

r con

fisca

tion

of p

rope

rty.

57

.

Doe

s the

resp

onsi

bilit

y im

pose

d on

loca

l au

thor

ities

for ‘

prev

entin

g’ a

n em

erge

ncy

mak

e th

em u

ndul

y su

scep

tible

to

litig

atio

n in

the

even

t of f

ailu

re to

ac

hiev

e th

at o

bjec

tive?

No.

The

requ

irem

ent t

o pl

an fo

r the

eff

ectiv

e pr

even

tion/

miti

gatio

n of

em

erge

ncie

s req

uire

s loc

al a

utho

ritie

s (an

d ot

her C

ateg

ory

1 re

spon

der b

odie

s) to

car

ry o

ut th

eir n

orm

al se

rvic

es in

such

a w

ay a

s to

limit

the

poss

ibili

ty th

at a

n in

cide

nt m

ay d

evel

op in

to a

n em

erge

ncy.

Eff

ectiv

ely

it m

akes

the

loca

l aut

horit

y no

mor

e lia

ble

for c

harg

es o

f neg

ligen

ce in

per

form

ance

of i

ts fu

nctio

ns th

an it

is a

t pr

esen

t.

58

.

Why

wer

e th

e B

BC

and

the

med

ia in

Th

e G

over

nmen

t doe

s not

bel

ieve

that

it is

app

ropr

iate

for m

edia

org

anis

atio

ns to

be

incl

uded

with

in th

e lis

t of C

ateg

ory

2 re

spon

ders

.

135

gene

ral e

xclu

ded

from

the

Cat

egor

y 2

resp

onde

rs li

st?

To m

ake

thei

r par

ticip

atio

n a

lega

l req

uire

men

t mig

ht im

pact

on

thei

r ind

epen

denc

e as

new

s rep

ortin

g an

d in

vest

igat

ing

bodi

es in

the

cont

ext o

f em

erge

ncie

s. In

pra

ctic

e, m

edia

org

anis

atio

ns h

ave

show

n th

emse

lves

to b

e va

luab

le p

artn

ers i

n lo

cal m

ulti-

agen

cy p

lann

ing

arra

ngem

ents

on

a vo

lunt

ary

basi

s. M

edia

org

anis

atio

ns p

lay

a ke

y pa

rt in

loca

l med

ia p

lans

for i

nfor

min

g th

e pu

blic

dur

ing

and

afte

r an

emer

genc

y. T

his i

s ex

pect

ed to

con

tinue

.

59.

Th

e D

efen

ce C

omm

ittee

’s re

port,

D

efen

ce a

nd S

ecur

ity in

the

UK

, not

ed

that

ther

e is

littl

e co

nfor

mity

abo

ut g

ivin

g se

curit

y cl

eara

nce

to e

mer

genc

y pl

anne

rs

at lo

cal l

evel

. As a

resu

lt, m

any

of th

ose

atte

ndin

g th

e sa

me

cros

s-ag

ency

m

eetin

gs h

ave

diff

eren

t lev

els o

f acc

ess

to se

nsiti

ve in

form

atio

n. G

iven

the

stat

utor

y du

ties b

eing

impo

sed

on lo

cal

resp

onde

rs, i

s the

re a

pol

icy

rega

rdin

g gr

antin

g se

curit

y cl

eara

nce

to th

e in

divi

dual

s who

mus

t per

form

thos

e du

ties?

Dec

isio

ns a

bout

the

vetti

ng o

f ind

ivid

uals

are

mad

e on

the

basi

s of i

ndiv

idua

l nee

d. L

ocal

resp

onde

rs re

ceiv

e se

curit

y cl

eara

nce

only

w

here

that

is n

eces

sary

, and

to d

iffer

ent l

evel

s as a

ppro

pria

te. T

his G

over

nmen

t has

no

plan

s at p

rese

nt to

cha

nge

this

app

roac

h.

Reg

iona

l and

Em

erge

ncy

Coo

rdin

ator

s (c

laus

e 22

)

60.

W

hat k

ind

of tr

aini

ng w

ill b

e pr

ovid

ed to

pu

tativ

e re

gion

al a

nd e

mer

genc

y co

ordi

nato

rs?

Reg

iona

l and

em

erge

ncy

co-o

rdin

ator

s wou

ld v

ary

acco

rdin

g to

the

natu

re o

f the

em

erge

ncy,

but

wou

ld b

e in

divi

dual

s app

oint

ed o

n th

e ba

sis o

f con

side

rabl

e ex

perie

nce

and

a pr

oven

trac

k re

cord

. As s

uch,

they

wou

ld b

e ab

le to

brin

g si

gnifi

cant

cap

abili

ty to

bea

r inc

ludi

ng

spec

ialis

t sub

ject

kno

wle

dge,

stro

ng le

ader

ship

and

eff

ectiv

e em

erge

ncy

man

agem

ent.

Giv

en th

e re

spon

sibi

lity

of th

e po

st, c

aref

ully

tailo

red

train

ing

wou

ld b

e av

aila

ble

to su

pple

men

t tho

se e

xist

ing

skill

s. W

hile

trai

ning

pa

ckag

es w

ould

dep

end

on th

e fin

al sh

ape

of th

e C

o-or

dina

tor r

ole

and

the

indi

vidu

als i

n qu

estio

n, c

ore

elem

ents

of t

rain

ing

to b

e im

plem

ente

d ac

ross

the

boar

d w

ould

be

likel

y to

incl

ude

the

doct

rine

of re

gion

al re

spon

se, c

entra

l gov

ernm

ent c

risis

mac

hine

ry a

nd

med

ia h

andl

ing.

61

.

Will

the

regi

onal

and

em

erge

ncy

coor

dina

tors

be

lead

ers o

r pro

vide

rs o

f sp

ecia

list e

xper

tise?

Whi

ch ra

nge

of

skill

s is t

he m

ore

impo

rtant

in a

regi

onal

an

d em

erge

ncy

coor

dina

tor?

Ther

e ar

e th

ree

broa

d ar

eas o

f exp

ertis

e in

whi

ch re

gion

al a

nd e

mer

genc

y co

-ord

inat

ors m

ight

spec

ialis

e:

- Su

bjec

t mat

ter s

peci

alis

atio

n. S

ome

Reg

iona

l Nom

inat

ed C

o-or

dina

tors

(RN

Cs)

mig

ht b

e ap

poin

ted

on th

e ba

sis o

f exp

ertis

e in

pa

rticu

lar t

ypes

of e

mer

genc

y. F

or e

xam

ple,

a se

nior

hea

lth p

rofe

ssio

nal m

ight

be

nom

inat

ed to

take

on

the

role

in th

e ca

se o

f an

epid

emic

in h

uman

s. -

Cris

is m

anag

emen

t. So

me

RN

Cs m

ight

be

appo

inte

d on

the

basi

s of s

trong

trac

k re

cord

s in

lead

ersh

ip p

ositi

ons d

urin

g

136

emer

genc

ies.

An

exam

ple

of th

is m

ight

be

a se

nior

pol

ice

offic

er.

- R

egio

nal k

now

ledg

e. S

ome

RN

Cs m

ight

be

appo

inte

d on

the

basi

s of e

xper

ienc

e in

a p

artic

ular

regi

on, a

nd e

xper

ienc

e of

wor

king

cl

osel

y w

ith k

ey p

laye

rs. A

n ex

ampl

e of

this

wou

ld b

e th

e D

irect

or o

f a G

over

nmen

t Off

ice.

Es

tabl

ishi

ng th

e rig

ht m

ix o

f ski

lls w

ould

be

a ta

sk fo

r the

pla

nnin

g ph

ase

durin

g w

hich

the

nom

inat

ion

wou

ld ta

ke p

lace

. Tra

inin

g w

ould

be

tailo

red

to b

uild

up

nom

inee

s’ c

apab

ilitie

s in

the

thre

e id

entif

ied

area

s to

ensu

re th

ey c

ould

func

tion

effe

ctiv

ely

in a

ny o

f the

m.

62

.

Acc

ordi

ng to

the

Con

sulta

tion

docu

men

t, th

e id

entit

y of

regi

onal

nom

inat

ed

coor

dina

tors

“w

ould

dep

end

on th

e na

ture

of t

he in

cide

nt a

nd w

hich

or

gani

satio

ns h

ad th

e le

ad fo

r dea

ling

with

it”

(p.2

4, p

ara

18).

Up

to h

ow m

any

peop

le in

eac

h re

gion

wou

ld b

e ‘p

re-

nom

inat

ed’,

in o

rder

to a

ccou

nt fo

r all

pote

ntia

l inc

iden

ts? H

ow o

ften

wou

ld

thes

e ‘p

re-n

omin

atio

ns’ b

e re

view

ed?

The

num

ber o

f ind

ivid

uals

nom

inat

ed fo

r the

RN

C ro

le in

any

regi

on w

ould

be

a m

atte

r for

det

erm

inat

ion

by th

at re

gion

, for

min

g pa

rt of

th

e ef

fect

ive

plan

ning

stag

e. In

par

t, de

cisi

ons w

ould

dep

end

on th

e m

ix o

f nom

inee

s a re

gion

opt

ed fo

r – fo

r exa

mpl

e, a

smal

ler n

umbe

r of

cris

is m

anag

ers a

s opp

osed

to a

larg

er n

umbe

r of s

ubje

ct sp

ecia

lists

. N

omin

atio

ns w

ould

be

revi

ewed

on

a re

gula

r bas

is, a

nd in

a v

arie

ty o

f way

s. R

egio

nal R

esili

ence

For

ums w

ould

take

the

lead

, dra

win

g on

adv

ice

from

cen

tral g

over

nmen

t. Th

ey w

ould

con

side

r nom

inat

ions

as a

nd w

hen

they

revi

ewed

regi

onal

pla

ns, a

nd in

the

even

t tha

t cu

rren

t nom

inee

s bec

ame

unav

aila

ble.

In a

dditi

on, c

entra

l gov

ernm

ent d

epar

tmen

ts w

ith n

atio

nal p

lans

mak

ing

use

of R

NC

s wou

ld a

lso

revi

ew n

omin

atio

ns a

s and

whe

n th

ey re

view

ed th

eir p

lans

.

63.

W

hat s

tatu

s wou

ld re

gion

al n

omin

ated

co

ordi

nato

rs h

ave

in a

non

-em

erge

ncy?

W

ould

they

hav

e a

cont

ract

or s

alar

y?

A R

NC

wou

ld n

ot h

ave

any

form

al st

atus

or s

alar

y un

less

em

erge

ncy

pow

ers w

ere

invo

ked.

Em

erge

ncy

regu

latio

ns w

ould

mak

e pr

ovis

ion

as to

the

RN

C’s

term

s of a

ppoi

ntm

ent a

nd c

ondi

tions

of s

ervi

ce (i

nclu

ding

rem

uner

atio

n) (s

ee c

laus

e 22

(2))

.

64.

It

is p

ropo

sed

that

a re

gion

al n

omin

ated

co

ordi

nato

r “w

ould

not

be

form

ally

ap

poin

ted

unle

ss sp

ecia

l leg

isla

tive

mea

sure

s wer

e to

be

take

n” (C

onsu

ltatio

n do

cum

ent,

p. 2

4, p

ara

19).

Wha

t wou

ld

thes

e “s

peci

al le

gisl

ativ

e m

easu

res”

be?

The

func

tion

of e

mer

genc

y po

wer

s leg

isla

tion

is to

mak

e te

mpo

rary

“sp

ecia

l leg

isla

tive

mea

sure

s” in

the

form

of e

mer

genc

y re

gula

tions

. Thi

s the

refo

re si

mpl

y m

eans

that

he/

she

wou

ld n

ot b

e fo

rmal

ly a

ppoi

nted

unl

ess e

mer

genc

y po

wer

s are

invo

ked.

65.

W

ill re

gion

al a

nd e

mer

genc

y co

ordi

nato

rs b

e ab

le to

cal

l upo

n th

e ar

med

forc

es o

r iss

ue o

rder

s to

the

forc

es?

Reg

iona

l and

em

erge

ncy

co-o

rdin

ator

s wou

ld b

e ab

le to

requ

est m

ilita

ry a

ssis

tanc

e un

der e

xist

ing

MA

CA

arr

ange

men

ts (s

ee a

nsw

ers

51-5

4). T

hey

wou

ld h

ave

no p

ower

s to

issu

e or

ders

to a

ny a

rmed

forc

es p

erso

nnel

.

66.

W

ill re

gion

al a

nd e

mer

genc

y co

ordi

nato

rs b

e ab

le to

cal

l upo

n th

e C

ivil

Con

tinge

ncy

Rea

ctio

n Fo

rce

or

issu

e or

ders

to th

is fo

rce?

The

CC

RFs

are

par

t of t

he a

rmed

forc

es. R

egio

nal a

nd e

mer

genc

y co

-ord

inat

ors w

ould

be

able

to re

ques

t mili

tary

ass

ista

nce

unde

r ex

istin

g M

AC

A a

rran

gem

ents

but

they

wou

ld h

ave

no p

ower

s to

issu

e or

ders

to a

ny a

rmed

forc

es p

erso

nnel

.

67.

W

ill re

gion

al a

nd e

mer

genc

y A

CC

OLC

invo

ke is

cur

rent

ly b

y th

e re

ques

t of t

he C

abin

et O

ffic

e or

the

Polic

e In

cide

nt C

omm

ande

r. Th

e G

over

nmen

t is c

urre

ntly

137

coor

dina

tors

be

able

to in

voke

Acc

ess

Ove

rload

Con

trol (

AC

CO

LC)?

re

view

ing

thes

e ar

rang

emen

ts.

If it

bec

omes

app

aren

t tha

t RN

Cs s

houl

d be

abl

e to

invo

ke A

CC

OLC

then

the

Gov

ernm

ent w

ill c

onsi

der m

akin

g th

at p

ossi

ble.

68.

To

who

m w

ill re

gion

al a

nd e

mer

genc

y co

ordi

nato

rs re

port

and

who

will

they

ta

ke o

rder

s fro

m o

nce

an e

mer

genc

y is

pr

ocla

imed

?

Reg

iona

l and

em

erge

ncy

co-o

rdin

ator

s wou

ld b

e ap

poin

ted

by th

e Se

cret

ary

of S

tate

to w

hom

they

wou

ld b

e ac

coun

tabl

e. T

hey

will

ta

ke d

irect

ion

and

guid

ance

from

the

Secr

etar

y of

Sta

te. (

See

22(4

) of t

he d

raft

Bill

.)

69.

O

nce

emer

genc

y po

wer

s hav

e be

en

invo

ked,

wha

t sco

pe w

ill re

gion

al a

nd

emer

genc

y co

ordi

nato

rs h

ave

for

inde

pend

ent a

ctio

n? If

com

mun

icat

ion

with

the

cent

re w

ere

not p

ossi

ble,

wou

ld

they

act

on

thei

r ow

n in

itiat

ive?

Cou

ld

they

cal

l for

mili

tary

supp

ort?

The

leve

l of d

iscr

etio

n re

gion

al a

nd e

mer

genc

y co

-ord

inat

ors w

ill h

ave

will

dep

end

on th

e na

ture

of t

he e

mer

genc

y. T

he p

ower

s and

du

ties g

iven

to th

e R

NC

s will

be

set o

ut in

the

emer

genc

y re

gula

tions

, and

wou

ld b

e ad

just

ed to

suit

the

circ

umst

ance

s. Th

e re

gula

tions

w

ould

als

o se

t out

the

exte

nt to

whi

ch R

NC

s wou

ld u

se p

ower

s at t

heir

own

disc

retio

n, a

nd th

e ex

tent

to w

hich

they

mig

ht re

quire

au

thor

ity fr

om th

e Se

cret

ary

of S

tate

. Th

ey w

ould

be

able

to a

ct in

depe

nden

tly if

com

mun

icat

ion

with

the

cent

re w

as m

ade

impo

ssib

le, t

houg

h on

ly w

ithin

the

para

met

ers

esta

blis

hed

by th

e re

gula

tions

. The

y w

ill b

e ab

le to

requ

est m

ilita

ry a

id if

app

ropr

iate

thro

ugh

esta

blis

hed

MA

CA

arr

ange

men

ts.

70

.

Onc

e a

stat

e of

em

erge

ncy

has b

een

proc

laim

ed, w

ill e

lect

ed lo

cal

repr

esen

tativ

es, s

uch

as c

ounc

illor

s or

may

ors,

have

any

role

or r

espo

nsib

ilitie

s in

dea

ling

with

the

emer

genc

y?

The

decl

arat

ion

of a

n em

erge

ncy

wou

ld n

ot, i

n m

ost c

ases

, alte

r exi

stin

g po

wer

s and

dut

ies.

Rol

es a

nd re

spon

sibi

litie

s of a

ny in

divi

dual

w

ould

onl

y ch

ange

if e

xplic

itly

prov

ided

for i

n th

e em

erge

ncy

regu

latio

ns.

It is

like

ly th

at lo

cal e

lect

ed re

pres

enta

tives

wou

ld c

ontin

ue to

fulfi

l the

ir us

ual r

ole,

alb

eit i

n th

e co

ntex

t of t

he e

mer

genc

y in

que

stio

n (f

or e

xam

ple,

they

mig

ht fi

nd th

emse

lves

hea

vily

invo

lved

in th

e lo

cal r

espo

nse

for t

heir

area

). In

add

ition

, fun

ctio

ns c

ould

be

conf

erre

d on

loca

l bod

ies u

nder

the

emer

genc

y re

gula

tions

.

71.

W

here

an

emer

genc

y ha

s aris

en, o

r is

thre

aten

ed, d

oes t

he G

over

nmen

t en

visa

ge th

at re

gion

al a

nd e

mer

genc

y co

ordi

nato

rs w

ill b

e ab

le to

issu

e di

rect

ions

to th

e po

lice,

the

fire

serv

ices

, he

alth

aut

horit

ies,

the

Coa

stgu

ard,

C

oron

ers,

loca

l aut

horit

ies,

Mar

itim

e an

d C

oast

guar

d A

genc

y, th

e En

viro

nmen

t A

genc

y an

d go

vern

men

t em

ploy

ees?

The

Gov

ernm

ent b

elie

ves t

hat,

whe

reve

r pos

sibl

e, u

sual

line

s of c

omm

and

and

cont

rol s

houl

d no

t be

alte

red

in ti

mes

of e

mer

genc

y. T

he

purp

ose

of th

is is

to a

void

con

fusi

on a

nd d

isru

ptio

n of

est

ablis

hed

proc

edur

es a

nd re

latio

nshi

ps. T

his p

rinci

ple

is w

idel

y su

ppor

ted

acro

ss th

e ci

vil p

rote

ctio

n co

mm

unity

. N

ever

thel

ess,

in th

e m

ost s

erio

us e

mer

genc

ies,

in m

ight

be

nece

ssar

y fo

r the

Gov

ernm

ent t

o be

mor

e di

rect

ive.

Thi

s is p

artic

ular

ly tr

ue

in si

tuat

ions

whe

re lo

cal a

reas

do

not h

ave

a fu

ll ap

prec

iatio

n of

the

natio

nal p

ictu

re.

That

is w

hy th

e dr

aft B

ill e

nabl

es, w

here

app

ropr

iate

, reg

iona

l and

em

erge

ncy

co-o

rdin

ator

s to

be e

mpo

wer

ed to

giv

e st

rate

gic

dire

ctio

n to

loca

l age

ncie

s in

term

s of s

ettin

g pr

iorit

ies a

nd fa

cilit

atin

g co

-ord

inat

ion.

72.

W

hat r

ole

wou

ld R

egio

nal A

ssem

blie

s ha

ve in

con

tinge

ncy

plan

ning

and

dea

ling

with

em

erge

ncie

s? H

ow c

ould

the

The

Dev

olve

d A

dmin

istra

tions

hav

e a

dire

ct in

volv

emen

t in

the

legi

slat

ion

mak

ing

proc

ess.

As a

con

sequ

ence

, the

Gov

ernm

ent b

elie

ves

this

invo

lvem

ent s

houl

d co

ntin

ue w

here

pos

sibl

e if

the

use

of sp

ecia

l leg

isla

tive

mea

sure

s is n

eces

sary

.

138

prop

osed

arr

ange

men

ts b

e ch

ange

d to

al

low

any

futu

re R

egio

nal A

ssem

blie

s to

have

a ro

le?

Ther

e ar

e cu

rren

tly n

o ad

min

istra

tions

in E

ngla

nd w

hich

enj

oy c

ompa

rabl

e le

vels

of l

egis

lativ

e co

mpe

tenc

e. T

his s

ituat

ion

will

con

tinue

to

be

revi

ewed

as p

art o

f the

dev

elop

men

t of t

he G

over

nmen

t’s p

olic

y on

Eng

lish

Reg

iona

l Ass

embl

ies.

73

.

Whe

re a

n em

erge

ncy

aris

es fr

om, o

r is

thre

aten

ed b

y, a

mar

itim

e em

erge

ncy

will

re

gion

al a

nd e

mer

genc

y co

ordi

nato

rs b

e ab

le to

issu

e di

rect

ions

to th

e Se

cret

ary

of

Stat

e’s R

epre

sent

ativ

e (S

OSR

EP)?

It co

uld

be p

rovi

ded

for u

nder

em

erge

ncy

regu

latio

ns if

nec

essa

ry in

the

circ

umst

ance

s.

74.

H

ow w

ould

regi

onal

and

em

erge

ncy

coor

dina

tors

be

rem

oved

? Th

e po

st w

ill e

xpire

whe

n a

Roy

al P

rocl

amat

ion

(cla

use

18) o

r a D

ecla

ratio

n by

the

Secr

etar

y of

Sta

te (c

laus

e 19

) lap

ses.

In

add

ition

, if r

equi

red

the

Secr

etar

y of

Sta

te c

ould

rem

ove

and

repl

ace

regi

onal

and

em

erge

ncy

co-o

rdin

ator

s. 75

.

Can

the

Cab

inet

Off

ice

prov

ide

the

exam

ple

of a

cas

e w

here

an

emer

genc

y w

as m

anag

ed u

sing

the

thre

e le

vels

of

man

agem

ent (

loca

l, re

gion

al a

nd

natio

nal)

prop

osed

in th

e co

nsul

tatio

n pa

per?

The

invo

lvem

ent o

f bot

h th

e lo

cal a

nd c

entra

l lev

els i

n th

e re

spon

se to

em

erge

ncie

s is a

long

-sta

ndin

g ar

rang

emen

t. Th

e in

volv

emen

t of

the

regi

onal

tier

is a

mor

e re

cent

dev

elop

men

t. N

ever

thel

ess,

this

regi

onal

role

has

stea

dily

incr

ease

d in

sign

ifica

nce.

Reg

iona

l stru

ctur

es w

ere

put i

n pl

ace

durin

g th

e fo

ot a

nd m

outh

ou

tbre

ak in

200

1, th

e Fu

el C

risis

in 2

000

and

the

firef

ight

ers s

trike

of 2

002.

Reg

iona

l off

ices

als

o pl

ayed

a ro

le in

the

co-o

rdin

atio

n of

Y

2K c

ontin

genc

y pl

anni

ng.

Thes

e si

tuat

ions

hig

hlig

hted

two

key

issu

es:

- W

ith in

crea

sing

ly c

ompl

ex so

cial

and

eco

nom

ic n

etw

orks

, it w

as d

iffic

ult t

o ha

ndle

the

volu

me

of in

form

atio

n co

min

g di

rect

ly to

th

e ce

ntre

from

so m

any

loca

l are

as a

nd fl

owin

g ba

ck o

ut a

gain

. Thi

s was

lead

ing

to a

d ho

c re

gion

al a

rran

gem

ents

. -

Reg

iona

l arr

ange

men

ts p

ut in

pla

ce in

an

ad h

oc fa

shio

n di

d no

t alw

ays p

erfo

rm a

s wel

l as e

stab

lishe

d st

ruct

ures

. It

is th

ese

key

issu

es th

at h

ave

led

to th

e G

over

nmen

t’s d

ecis

ion

to e

stab

lish

a re

gion

al c

ivil

prot

ectio

n tie

r.

M

isce

llane

ous

76

.

Why

doe

s the

Cab

inet

Off

ice

cons

ider

th

at a

sing

le c

entra

l co-

ordi

natin

g bo

dy

with

in c

entra

l Gov

ernm

ent d

ealin

g w

ith

all e

mer

genc

ies i

s not

app

ropr

iate

?

Diff

eren

t em

erge

ncie

s req

uire

diff

eren

t typ

es o

f res

pons

e an

d th

e G

over

nmen

t bel

ieve

s tha

t thi

s is b

est d

eliv

ered

thro

ugh

the

lead

go

vern

men

t dep

artm

ent p

rinci

ple,

with

stro

ng c

entra

l co-

ordi

natio

n w

here

requ

ired,

whi

ch a

llow

s the

exp

erts

in a

ny p

artic

ular

fiel

d to

le

ad th

e re

spon

se.

Each

of t

he c

entra

l gov

ernm

ent d

epar

tmen

ts m

ust t

ake

resp

onsi

bilit

y fo

r its

ow

n se

ctor

al a

rea

and

not b

e te

mpt

ed to

try

to d

islo

dge

its

resp

onsi

bilit

ies o

nto

a ce

ntra

l bod

y. R

evis

ions

to th

e le

ad g

over

nmen

t dep

artm

ent d

octri

ne h

ave

put i

n pl

ace

a ro

bust

syst

em w

hich

will

be

aud

ited

annu

ally

by

the

cent

re to

ens

ure

conf

orm

ance

and

goo

d pr

actic

e.

Cle

ar le

ads a

t Min

iste

rial a

nd D

epar

tmen

tal l

evel

s hav

e be

en e

stab

lishe

d an

d ce

ntra

l res

ourc

es p

rovi

ded

to p

lan

and

co-o

rdin

ate

cont

inge

ncy

plan

ning

.

139

Sir D

avid

Om

and

was

app

oint

ed a

s Sec

urity

and

Inte

llige

nce

Co-

ordi

nato

r and

Per

man

ent S

ecre

tary

to th

e C

abin

et O

ffic

e in

July

200

2 to

enh

ance

cap

acity

at t

he c

entre

to c

o-or

dina

te se

curit

y, in

telli

genc

e an

d co

ntin

genc

y m

anag

emen

t. Th

e C

ivil

Con

tinge

ncie

s Sec

reta

riat w

as se

t up

in Ju

ne 2

001

to im

prov

e th

e U

K’s

resi

lienc

e to

dis

rupt

ive

chal

leng

e th

roug

h w

orki

ng

with

oth

ers i

nsid

e an

d ou

tsid

e G

over

nmen

t on

antic

ipat

ion,

pre

para

tion,

pre

vent

ion

and

reso

lutio

n.

The

Gov

ernm

ent b

elie

ves t

his a

rran

gem

ent o

f cen

tral c

o-or

dina

tion,

acc

ount

able

to M

inis

ters

, cou

pled

with

Dep

artm

enta

l res

pons

ibili

ty

for d

eliv

ery

of re

spon

se is

the

best

resi

lienc

e st

ruct

ure.

It e

ngag

es a

wid

er p

ool o

f exp

ertis

e, a

void

s the

nee

d fo

r a h

uge

new

bur

eauc

racy

at

the

cent

re w

hile

at t

he sa

me

time

has a

cle

ar c

hain

of c

omm

and.

77.

H

ow w

ill th

e “s

tand

ards

and

aud

it re

gim

e” (c

hapt

er 5

.2 o

f the

Con

sulta

tion

Doc

umen

t) op

erat

e? W

ill it

mon

itor

cent

ral a

s wel

l as l

ocal

gov

ernm

ent?

The

stan

dard

s and

aud

it re

gim

e re

ferr

ed to

in C

hapt

er 5

of t

he C

onsu

ltatio

n D

ocum

ent r

elat

es o

nly

to c

entra

l gov

ernm

ent.

Furth

er

deta

ils a

re se

t out

in a

nsw

er 3

1.

Mon

itorin

g of

the

perf

orm

ance

of l

ocal

resp

onde

rs a

gain

st th

e du

ties i

n th

e dr

aft B

ill w

ill b

e ca

rrie

d ou

t by

exis

ting

audi

t bod

ies s

uch

as

the

Aud

it C

omm

issi

on a

s par

t of t

heir

esta

blis

hed

perf

orm

ance

man

agem

ent p

roce

sses

. Fur

ther

det

ail i

s set

out

in p

arag

raph

s 37

and

38

of th

e C

onsu

ltatio

n D

ocum

ent.

78

.

Is th

ere

curr

ently

in p

lace

, or d

oes t

he

Gov

ernm

ent p

lan

to p

ropo

se, l

egis

latio

n si

mila

r to

the

Civ

il C

ontin

genc

ies B

ill fo

r th

e Is

le o

f Man

or t

he C

hann

el Is

land

s?

Are

the

Isle

of M

an o

r the

Cha

nnel

Is

land

s inc

lude

d w

ithin

the

new

ar

rang

emen

ts?

Hav

e, fo

r exa

mpl

e,

Res

ilien

ce F

orum

s bee

n se

t up?

Civ

il pr

otec

tion

arra

ngem

ents

in th

e C

hann

el Is

land

s and

Isle

of M

an a

re a

mat

ter f

or th

eir r

espe

ctiv

e ad

min

istra

tions

. The

Gov

ernm

ent

is c

urre

ntly

con

sulti

ng b

oth

on th

e po

ssib

le e

xten

sion

of th

e dr

aft B

ill to

incl

ude

thei

r ter

ritor

ies.

79.

W

hy is

the

Mar

itim

e an

d C

oast

guar

d A

genc

y de

fined

at p

arag

raph

8 o

f sc

hedu

le 1

of t

he B

ill a

s “th

e Se

cret

ary

of

Stat

e, in

so fa

r as h

is fu

nctio

ns re

late

to

mar

itim

e an

d co

asta

l mat

ters

”, w

here

as

the

Envi

ronm

ent A

genc

y its

elf i

s sp

ecifi

ed a

t par

agra

ph 7

of S

ched

ule

1?

The

Mar

itim

e an

d C

oast

guar

d A

genc

y is

an

Exec

utiv

e A

genc

y of

the

DFT

. It i

s par

t of t

he D

FT a

nd d

oes n

ot h

ave

lega

l per

sona

lity

in

its o

wn

right

. Th

e En

viro

nmen

t Age

ncy

is a

n no

n-de

partm

enta

l pub

lic b

ody

(ND

PB) s

pons

ored

by

DEF

RA

. The

Env

ironm

ent A

genc

y w

as

esta

blis

hed

unde

r the

Env

ironm

ent A

ct 1

995

as a

bod

y co

rpor

ate.

80.

W

hat a

rran

gem

ents

wou

ld b

e m

ade

to

pres

erve

a re

cord

of o

ral d

irect

ions

giv

en

by M

inis

ters

und

er th

e po

wer

s at c

laus

es

An

oral

dire

ctio

n is

val

id w

ith n

o re

quire

men

t to

mai

ntai

n a

writ

ten

reco

rd. N

ever

thel

ess,

the

Gov

ernm

ent i

s cur

rent

ly c

onsi

derin

g ho

w

the

draf

t Bill

mig

ht b

e am

ende

d to

incl

ude

the

requ

irem

ent t

o re

cord

dire

ctio

ns in

writ

ing.

140

7(3)

and

21(

3)?

81.

D

oes t

he E

mer

genc

y C

omm

unic

atio

ns

netw

ork

incl

ude

all c

ateg

ory

1 an

d 2

resp

onde

rs?

If n

ot, w

hy n

ot?

The

Emer

genc

y C

omm

unic

atio

ns N

etw

ork

(EC

N) i

s a p

rivat

e sw

itche

d te

leph

one

netw

ork,

dis

cret

e fr

om th

e pu

blic

net

wor

k. It

pro

vide

s a

robu

st e

mer

genc

y co

mm

unic

atio

n sy

stem

via

ded

icat

ed p

rivat

e au

tom

atic

bra

nch

exch

ange

(PA

BX

) sw

itche

s. Th

e EC

N is

man

aged

by

the

Cab

inet

Off

ice.

The

EC

N is

con

tinuo

usly

ava

ilabl

e an

d ca

n ha

ve a

role

in su

ppor

t of t

he P

ublic

Ser

vice

Tel

epho

ne N

etw

ork

(PST

N)

thro

ugh

all s

tage

s of t

raff

ic o

verlo

ad m

anag

emen

t. Th

e EC

N e

nabl

es d

irect

acc

ess t

o th

e PS

TN a

nd B

reak

-In

from

the

PSTN

; the

se

feat

ures

can

faci

litat

e co

mm

unic

atio

n w

ith m

obile

tele

phon

es a

t the

scen

e of

an

inci

dent

. Th

e EC

N is

ava

ilabl

e to

any

‘ess

entia

l ser

vice

’ whi

ch h

as a

n in

volv

emen

t with

pla

nnin

g fo

r, m

anag

ing

and/

or re

spon

ding

to a

n em

erge

ncy

situ

atio

n. A

ll th

e C

ateg

ory

1 an

d 2

resp

onde

rs a

re e

ligib

le to

con

nect

to th

e EC

N, a

nd u

nder

cur

rent

arr

ange

men

ts th

e G

over

nmen

t fun

ds th

e co

nnec

tion

of lo

cal a

utho

rity

site

s, Po

lice

and

Fire

HQ

s. A

num

ber o

f oth

er C

ateg

ory

1 an

d 2

resp

onde

rs a

re n

ot c

onne

cted

to th

e EC

N. T

hey

have

cho

sen

to u

se a

ltern

ativ

e m

etho

ds o

f co

mm

unic

atio

n ba

sed

on th

eir o

wn

oper

atio

nal n

eeds

.

82.

D

oes t

he E

mer

genc

y C

omm

unic

atio

ns

Net

wor

k in

clud

e ke

y vo

lunt

ary

orga

nisa

tions

such

as t

he R

ed C

ross

, St

John

’s A

mbu

lanc

e? If

not

, why

not

?

The

ECN

is a

vaila

ble

for c

onne

ctio

n to

vol

unta

ry o

rgan

isat

ions

. Non

e ar

e cu

rren

tly c

onne

cted

to it

, cho

osin

g in

stea

d al

tern

ativ

e m

etho

ds o

f com

mun

icat

ion

base

d on

thei

r ow

n op

erat

iona

l nee

ds.

83.

D

o Lo

rds-

Lieu

tena

nt h

ave

any

role

in

deal

ing

with

, or d

urin

g, e

mer

genc

ies?

Lo

rds-

Lieu

tena

nts h

ave

no fo

rmal

role

in th

e re

spon

se to

em

erge

ncie

s.

84.

H

ave

Lord

s-Li

eute

nant

s or

she

riffs

any

re

sidu

al p

ower

s to

mob

ilise

a m

ilitia

(or

po

sse

com

itatu

s) w

hich

cou

ld b

e us

ed in

an

em

erge

ncy?

No.

Und

er se

ctio

n 6

of th

e R

egul

atio

n of

the

Forc

es A

ct 1

871,

all

juris

dict

ion,

pow

ers,

dutie

s, co

mm

and

and

priv

ilege

s of L

ord

Lieu

tena

nts i

n re

latio

n to

the

mili

tia re

verte

d to

the

Que

en, s

ave

in re

latio

n to

app

oint

ing

a de

puty

lieu

tena

nt a

nd ra

isin

g th

e m

ilitia

by

ballo

t.

The

abol

ition

of t

he m

ilitia

in it

s ent

irety

cam

e ab

out u

nder

sect

ion

4 of

the

Terr

itoria

l Arm

y an

d M

ilitia

Act

192

1.

85

.

Wha

t rol

e w

ill u

tility

and

oth

er re

gula

tors

ha

ve in

pla

nnin

g to

mee

t civ

il co

ntin

genc

ies?

The

Gov

ernm

ent b

elie

ves t

hat t

he u

tility

and

oth

er re

gula

tors

hav

e an

impo

rtant

role

to p

lay

in p

lann

ing

to m

eet c

ivil

cont

inge

ncie

s. U

tility

com

pani

es a

re o

ften

resp

onsi

ble

for s

uppl

ying

ess

entia

l ser

vice

s and

may

hav

e a

key

role

in th

e re

spon

se to

em

erge

ncie

s. Th

e re

gula

tory

fram

ewor

k w

ithin

whi

ch th

ey o

pera

te is

cru

cial

to th

at re

spon

se. T

he re

gula

tory

fram

ewor

k is

als

o th

e pr

inci

ple

vehi

cle

thro

ugh

whi

ch th

e G

over

nmen

t ens

ures

that

util

ities

dis

char

ge th

eir r

espo

nsib

ilitie

s to

plan

for e

mer

genc

ies.

Dis

cuss

ions

will

take

pla

ce w

ith re

gula

tors

bef

ore

regu

latio

ns a

nd g

uida

nce

are

prod

uced

aff

ectin

g C

ateg

ory

2 re

spon

ders

in o

rder

to

clar

ify th

e re

spec

tive

regu

lato

ry re

gim

es o

f eac

h ty

pe a

nd h

ow th

eir e

xist

ing

regi

mes

fit w

ith w

hat i

s pro

pose

d un

der t

he d

raft

Bill

.

86.

W

hen

will

the

Trea

sury

task

forc

e un

der

the

chai

rman

ship

of S

ir A

ndre

w L

arge

Th

e Ta

sk F

orce

on

Fina

ncia

l Sec

tor O

pera

tiona

l Dis

rupt

ion

has b

een

aske

d to

pro

duce

an

inte

rim re

port

by N

ovem

ber 2

003

and

mak

e fin

al re

com

men

datio

ns b

y Fe

brua

ry 2

004.

141

repo

rt on

con

tinge

ncy

arra

ngem

ents

for

finan

cial

mar

kets

?

87.

Th

e C

abin

et O

ffic

e co

mm

issi

oned

a

com

paris

on o

f oth

er c

ivil

cont

inge

ncie

s le

gisl

atio

n (C

onsu

ltatio

n do

cum

ent,

p41)

. A

re th

ere

any

coun

tries

that

the

Bill

team

th

ink

have

got

it ri

ght?

The

draf

t Bill

’s p

olic

y de

velo

pmen

t pro

cess

dre

w o

n le

sson

s fro

m o

vers

eas.

Seve

ral j

uris

dict

ions

wer

e th

e su

bjec

t of a

form

al a

naly

sis

by th

e B

ritis

h In

stitu

te fo

r Int

erna

tiona

l and

Com

para

tive

Law

– F

ranc

e, S

wed

en, U

SA a

nd th

e EU

. Off

icia

ls a

lso

esta

blis

hed

bila

tera

l co

ntac

ts w

ith C

anad

a, A

ustra

lia, a

nd N

ew Z

eala

nd. F

urth

er re

sear

ch c

over

ed th

e le

gisl

ativ

e fr

amew

orks

for c

ivil

prot

ectio

n in

seve

ral

othe

r cou

ntrie

s. O

f the

syst

ems c

onsi

dere

d, e

ach

had

both

stre

ngth

s and

wea

knes

ses.

Thes

e of

ten

mirr

ored

stre

ngth

s and

wea

knes

ses i

n th

e sy

stem

s of

gove

rnm

ent m

ore

gene

rally

. No

one

coun

try c

ould

be

said

to h

ave

got e

very

thin

g rig

ht.

The

exer

cise

has

hig

hlig

hted

that

goo

d ar

rang

emen

ts fo

und

in o

ne c

ount

ry a

re n

ot n

eces

saril

y ea

sily

tran

sfer

able

to a

noth

er. M

uch

depe

nds o

n th

e na

ture

of t

he sy

stem

s of g

over

nanc

e th

e co

untri

es e

mpl

oy, t

heir

size

and

the

natu

re o

f the

risk

s and

thre

ats t

hey

face

.

142

AN

NE

X A

SU

MM

AR

Y O

F PA

ST B

EL

LW

IN G

RA

NT

PA

YM

EN

TS

1.

The

Bel

lwin

sche

me

of e

mer

genc

y fin

anci

al a

ssis

tanc

e to

loca

l aut

horit

ies w

as g

iven

a st

atut

ory

basi

s in

Sect

ion

155

of th

e Lo

cal G

over

nmen

t and

Hou

sing

Act

198

9.

2. S

ince

198

3 it

has b

een

activ

ated

seve

ral t

imes

in e

ach

finan

cial

yea

r. O

n tw

o oc

casi

ons t

here

wer

e em

erge

ncie

s of a

wid

e ra

ngin

g na

ture

but

in o

ther

yea

rs th

e nu

mbe

r of

case

s aris

ing

has t

otal

led

less

than

10

in a

ny o

ne y

ear a

nd th

e am

ount

s of g

rant

cla

imed

less

than

£1

mill

ion.

Am

ount

s pai

d by

way

of B

ellw

in g

rant

ove

r the

last

15

year

s w

ere

as fo

llow

s (in

seve

ral y

ears

mos

t of t

he m

oney

pai

d w

as in

resp

ect o

f inc

iden

ts re

porte

d in

the

prev

ious

yea

r):

1987

/88

- £20

m (S

ever

e sn

ows a

nd h

urric

ane)

Se

vere

snow

s in

Ken

t and

Nor

folk

, 198

7: C

ondi

tions

in K

ent w

ere

estim

ated

(fro

m M

et O

ffic

e ob

serv

atio

ns) t

o be

a o

ne in

30

to 5

0-ye

ar e

vent

. `H

urric

ane'

of 1

6 O

ctob

er 1

987:

The

sche

me

was

act

ivat

ed o

n 21

Oct

ober

198

7.

1988

/89

- £6.

2m (S

torm

s)

Am

ount

s pai

d in

this

yea

r wer

e fin

al c

laim

s aris

ing

out o

f inc

iden

ts o

ccur

ring

in th

e pr

evio

us y

ear.

1989

/90

- £0.

6m (S

torm

s and

floo

ds)

Stor

ms o

f 16/

17 D

ecem

ber 1

989

and

25 Ja

nuar

y 19

90: M

inis

ters

agr

eed

to a

ctiv

ate

the

sche

me

on th

e da

y of

the

25 Ja

nuar

y st

orm

s bas

ed o

n in

form

atio

n to

han

d at

the

time.

M

inis

ters

ext

ende

d th

e sc

hem

e to

cov

er e

xpen

ditu

re in

curr

ed b

y au

thor

ities

in th

e so

uth-

wes

t fol

low

ing

stor

ms i

n D

ecem

ber.

19

90/9

1 - £

4.9m

(Flo

ods)

St

orm

s of 1

6/17

Dec

embe

r 198

9 an

d 25

Janu

ary

1990

: Min

iste

rs a

gree

d to

act

ivat

e th

e sc

hem

e on

the

day

of th

e 25

Janu

ary

stor

ms b

ased

on

info

rmat

ion

to h

and

at th

e tim

e.

Min

iste

rs e

xten

ded

the

sche

me

to c

over

exp

endi

ture

incu

rred

by

auth

oriti

es in

the

sout

h-w

est f

ollo

win

g st

orm

s in

Dec

embe

r.

1991

/92

- £0.

3m (F

lood

s)

1992

/93

- £0

1993

/94

- £0.

2m (S

torm

s)

143

Nor

th N

orfo

lk D

C -

stor

ms o

f 20/

21 F

ebru

ary

1993

: An

activ

atio

n w

as a

ppro

ved

on th

e ba

sis t

hat t

he m

et o

ffic

e co

nsid

ered

the

stor

ms t

o ha

ve a

retu

rn p

erio

d in

the

area

of

arou

nd 1

7 ye

ars.

Cor

nwal

l - st

orm

s and

floo

ds, 9

/12

June

199

3: A

sche

me

of a

ssis

tanc

e w

as e

stab

lishe

d in

resp

ect o

f flo

odin

g in

Cor

nwal

l in

early

June

199

3, w

hich

follo

wed

exc

eptio

nally

he

avy

rain

fall.

Con

ditio

ns w

ere

repo

rtedl

y th

e w

orst

for g

ener

atio

ns. M

any

hom

es h

ad to

be

evac

uate

d.

1994

/95

- £0.

6m (F

lood

s and

land

slid

es)

Floo

ds in

Wes

t Sus

sex

- Jan

uary

199

4: T

his a

ctiv

atio

n of

the

sche

me

took

pla

ce in

resp

ect o

f wid

espr

ead

flood

ing

in W

est S

usse

x af

ter a

per

iod

of e

xcep

tiona

lly h

eavy

ra

infa

ll in

late

Dec

embe

r 199

3 an

d Ja

nuar

y 19

94. T

he N

RA

con

firm

ed th

at th

is w

as a

onc

e in

200

yea

r eve

nt in

Wes

t Sus

sex.

Aro

und

Chi

ches

ter g

roun

dwat

er le

vels

reac

hed

thei

r hig

hest

sinc

e re

cord

s beg

an in

183

6, a

nd e

vacu

atin

g pe

ople

from

thei

r hom

es w

as n

eces

sary

on

thre

e se

para

te o

ccas

ions

. The

Dep

artm

ent r

ecei

ved

requ

ests

to a

ctiv

ate

the

sche

me

from

thre

e au

thor

ities

, and

pai

d a

tota

l of £

597,

100

in g

rant

. Fl

oods

and

Lan

dslid

es o

n th

e Is

le o

f Wig

ht -

Janu

ary

to F

ebru

ary

1994

: The

sche

me

was

act

ivat

ed fo

r Sou

th W

ight

Bor

ough

Cou

ncil

whe

n it

was

act

ivat

ed fo

r Wes

t Sus

sex,

an

d in

resp

ect o

f the

sam

e pe

riod

of ra

infa

ll. S

ever

e fr

osts

follo

wed

this

rain

fall,

whi

ch c

ause

d se

vera

l mas

sive

land

slid

es a

nd m

ore

than

100

clif

f fal

l inc

iden

ts.

1995

/96

- £0.

1m (U

nexp

lode

d bo

mb

and

fire)

U

nexp

lode

d bo

mb

on th

e Is

land

of P

ortla

nd -

1 to

3 A

pril

1995

: A B

ellw

in sc

hem

e w

as a

ctiv

ated

for W

eym

outh

& P

ortla

nd B

orou

gh C

ounc

il fo

r the

cos

ts o

f dea

ling

with

a

1000

lb u

nexp

lode

d G

erm

an W

W2

bom

b fo

und

on th

e Is

land

of P

ortla

nd. T

hese

cos

ts in

clud

ed e

vacu

atio

n of

500

0 re

side

nts f

rom

100

0m ra

dius

aro

und

the

bom

b, h

ousi

ng fo

r 20

00 e

vacu

ees i

n ne

arby

hol

iday

cam

ps, o

verti

me

for c

ounc

il em

ploy

ees a

nd th

e so

me

addi

tiona

l pol

icin

g co

sts.

This

was

the

larg

est s

uch

evac

uatio

n si

nce

WW

2 an

d th

e fir

st

time

the

Bel

lwin

sche

me

has b

een

activ

ated

for a

non

-wea

ther

rela

ted

inci

dent

. Fi

re o

n Th

orne

Moo

r nea

r Don

cast

er -

25 A

ugus

t to

19 S

epte

mbe

r 199

5: M

inis

ters

act

ivat

ed th

e sc

hem

e fo

r the

Sou

th Y

orks

hire

Fire

and

Civ

il D

efen

ce A

utho

rity

for t

he

cost

s inc

urre

d du

ring

an e

xten

sive

fire

on

Thor

ne M

oor b

etw

een

25 A

ugus

t and

19

Sept

embe

r 199

5. C

osts

incl

uded

staf

f ove

rtim

e, h

ire o

f ext

ra e

quip

men

t, in

crea

sed

fuel

co

sts a

nd a

dditi

onal

mai

nten

ance

cos

ts re

sulti

ng fr

om th

e ex

cept

iona

lly h

eavy

use

of e

quip

men

t dur

ing

the

emer

genc

y.

1996

/97

- £0.

2m (S

torm

s and

floo

ding

) St

orm

s in

Torb

ay -

20-2

4 Ja

nuar

y 19

96: A

sche

me

was

act

ivat

ed to

reim

burs

e co

sts a

risin

g fr

om e

xcep

tiona

l sto

rm c

ondi

tions

in Ja

nuar

y 19

96.

Nor

th N

orfo

lk -

Stor

m o

n 19

Feb

ruar

y 19

96: N

orth

Nor

folk

Dis

trict

Cou

ncil

requ

este

d th

e ac

tivat

ion

of a

sche

me

follo

win

g flo

odin

g an

d da

mag

e du

ring

a st

orm

on

19

Febr

uary

.

144

Floo

ding

in F

olke

ston

e - 1

2 A

ugus

t 199

6: A

ctiv

atio

n w

as a

ppro

ved

to a

ssis

t She

pway

Dis

trict

Cou

ncil

with

em

erge

ncy

cost

s inc

urre

d fo

llow

ing

seve

re fl

oodi

ng in

Fo

lkes

tone

. On

12 A

ugus

t an

inte

nse

rain

stor

m c

ause

d w

ides

prea

d flo

odin

g in

the

Ash

ford

and

She

pway

Dis

trict

Cou

ncil

area

s. R

ainf

all w

as p

artic

ular

ly h

eavy

in

Folk

esto

ne, w

here

97.

7mm

was

reco

rded

in le

ss th

an tw

o ho

urs -

est

imat

ed b

y th

e M

et O

ffic

e to

be

a 1

in 5

00 y

ear e

vent

. St

orm

s in

Nor

th D

evon

- 28

Oct

ober

199

6: A

sche

me

was

act

ivat

ed in

resp

ect o

f cos

ts in

curr

ed b

y N

orth

Dev

on D

istri

ct C

ounc

il fo

llow

ing

exce

ptio

nal s

torm

s on

28 O

ctob

er

1996

. The

Met

Off

ice

estim

ated

the

wav

e he

ight

(10

met

res)

resu

lting

from

the

parti

cula

r com

bina

tion

of w

ind

and

sea

cond

ition

s as a

1 in

50

year

s occ

urre

nce.

It c

ause

d si

gnifi

cant

dam

age

to se

a de

fenc

es a

nd p

lace

d lif

e an

d pr

oper

ty a

t ris

k. T

he C

ounc

il es

timat

ed it

s qua

lifyi

ng e

xpen

ditu

re a

t £10

8,00

0 (£

87,0

00 a

bove

its B

ellw

in T

hres

hold

). In

the

even

t, el

igib

le sp

end

did

not e

xcee

d its

thre

shol

d an

d no

gra

nt w

as p

aid.

19

97/9

8 - £

0.17

m (S

torm

s and

floo

ding

) A

mou

nts p

aid

in th

is y

ear w

ere

final

cla

ims a

risin

g ou

t of i

ncid

ents

occ

urrin

g in

the

prev

ious

yea

r. In

add

ition

, a fu

rther

£0.

13m

was

pai

d as

spec

ial g

rant

s. Th

ese

incl

uded

pa

ymen

ts to

Tow

er H

amle

ts a

nd M

anch

este

r in

resp

ect o

f ter

roris

t atta

cks.

1998

/99

- £0.

44m

(Flo

ods)

Ea

ster

floo

ds sc

hem

e. 1

1 au

thor

ities

rece

ived

gra

nt in

resp

ect o

f the

Eas

ter f

lood

s of 1

998.

The

y w

ere:

Wyc

havo

n D

C, N

orth

ampt

on P

A, W

arw

ick

DC

, Stra

tford

on

Avo

n D

C,

Wor

cest

er C

ity C

ounc

il, W

arw

icks

hire

CC

, Nor

tham

pton

BC

, Che

rwel

l DC

, Mel

ton

BC

, Hun

tingd

onsh

ire D

C a

nd H

eref

ords

hire

DC

. O

ther

sche

mes

wer

e an

noun

ced

late

r in

the

year

for t

he A

utum

n, Ja

nuar

y an

d Fe

brua

ry fl

oods

. 4 a

utho

ritie

s rec

eive

d gr

ant:

Shre

wsb

ury

& A

tcha

m, W

orce

ster

CC

, Sou

th

Lake

side

DC

and

Rye

dale

. In

a se

para

te sc

hem

e N

orth

Wilt

shire

DC

als

o re

ceiv

ed a

Bel

lwin

gra

nt

1990

/00

- £0.

35m

(Flo

ods)

A

mou

nts p

aid

in th

is y

ear w

ere

final

cla

ims a

risin

g ou

t of i

ncid

ents

occ

urrin

g in

the

prev

ious

yea

r. 20

00/0

1 - £

4.1m

(Flo

ods,

unex

plod

ed b

omb

and

plan

e cr

ash)

14

aut

horit

ies r

ecei

ved

paym

ents

follo

win

g th

e ac

tivat

ion

of th

e sc

hem

e on

3 N

ovem

ber t

o co

ver t

he se

vere

wea

ther

eve

nts b

etw

een

1st O

ctob

er to

31

Dec

embe

r 200

0. T

hey

wer

e : B

ridgn

orth

DC

, Can

terb

ury

City

Cou

ncil,

Eas

t Sus

sex

CC

, Elm

brid

ge B

C, L

ewes

DC

, Mai

dsto

ne B

C, N

ewar

k &

She

rwoo

d D

C, S

hrop

shire

CC

, Ton

brid

ge &

Mal

ling

BC

, Wea

lden

DC

, Wes

t Sus

sex

CC

, Wok

ing

BC

, Wyr

e B

C a

nd Y

ork

City

Cou

ncil.

5 o

ther

sche

mes

wer

e ac

tivat

ed th

at y

ear f

or: H

eref

ords

hire

DC

, Mel

ton

DC

, Wea

r Val

ley

DC

, Cop

elan

d D

C a

nd E

ast S

usse

x Po

lice.

The

se w

ere

in re

spec

t of s

epar

ate

flood

ing

inci

dent

s fro

m p

revi

ous y

ears

, an

unex

pect

ed W

orld

War

II b

omb

and

the

plan

e cr

ash

at

Stan

sted

in D

ecem

ber 1

999.

145

AN

NE

X B

M

AG

D D

EPL

OY

ME

NT

S SI

NC

E 1

983

DA

TE

D

EPL

OY

ME

NT

M

ar 1

984

– M

ar 1

985

Nat

iona

l Coa

l Ind

ustry

strik

e. M

ilita

ry lo

gist

ic a

ssis

tanc

e pr

ovid

ed to

civ

ilian

pol

ice.

Apr

– A

ug 1

986

Roy

al E

ngin

eers

pro

vide

d as

sist

ance

to P

rison

Ser

vice

– c

onve

rsio

n of

mili

tary

cam

p at

Rol

lest

one

for u

se a

s tem

pora

ry

pris

on –

at t

ime

of d

ispu

te w

ith P

rison

Off

icer

s Ass

ocia

tion.

Tro

ops d

id n

ot a

ctua

lly d

eplo

y to

ope

rate

the

pris

on.

M

ay –

Jun

1986

Te

mpo

rary

fiel

d po

st o

ffic

e se

t up

in Y

ork

(4-6

June

) to

hand

le o

ffic

ial m

ail,

at ti

me

of P

ost O

ffic

e di

sput

e in

wes

t Y

orks

hire

. Sel

f Hel

p.

Ju

n –

Nov

198

7 Sa

pper

s con

verte

d R

olle

ston

e ca

mp

as a

tem

pora

ry p

rison

for c

ivili

an u

se a

t a ti

me

of p

rison

ove

rcro

wdi

ng.

O

ct 1

987

Fire

dis

pute

in W

est G

lam

orga

n: 1

R H

amps

Bn

Gp

with

320

per

sonn

el in

clud

ing

17 R

N, a

nd 2

0 R

AF)

man

ned

15 G

Gs

and

3 FR

Ts.

M

ar –

Dec

198

8 Sa

pper

s con

verte

d an

d op

erat

ed R

olle

ston

e an

d A

lma-

Det

tinge

n ca

mps

as t

empo

rary

pris

ons a

t a ti

me

of p

rison

ov

ercr

owdi

ng.

Se

pt 1

988

Fiel

d po

st o

ffic

es se

t up

in th

e U

K to

pro

vide

em

erge

ncy

post

al fa

cilit

ies f

or M

OD

and

HM

For

ces d

urin

g a

Post

Off

ice

disp

ute.

Sel

f Hel

p.

Ju

l – A

ug 1

989

LT/B

R d

ispu

te. S

appe

rs la

id tr

ackw

ay in

Reg

ents

and

Hyd

e Pa

rks.

N

ov 1

989

– M

ar 1

990

Am

bula

nce

disp

ute.

128

,727

cal

l out

s (50

% in

Lon

don)

. 209

serv

ice

ambu

lanc

es (+

cre

ws)

dep

loye

d lo

cally

.

Aug

199

5 –

May

199

6 Fi

re S

ervi

ce d

ispu

te (M

erse

ysid

e) –

not

a c

ontin

uous

dis

pute

, nor

a c

ontin

uous

dep

loym

ent.

A b

atta

lion-

com

mitm

ent p

lus

RA

F Fi

re R

escu

e Te

ams (

FRTs

). A

rmy

pers

onne

l man

ned

GG

s.

Jun

– Se

pt 1

996

Fire

Ser

vice

dis

pute

(Der

bysh

ire) –

a B

n (-

) com

mitm

ent (

109

pers

onne

l with

12

GG

s) p

lus 6

RA

F FR

Ts (4

0 pe

rson

nel).

May

199

7 Fi

re S

ervi

ce d

ispu

te (E

ssex

) – a

Bn

(-) c

omm

itmen

t. Se

rvic

e pe

rson

nel c

450

in a

ll –

atte

nded

1,3

15 in

cide

nts i

nclu

ding

(618

fir

es).

146

Sep

– N

ov 2

000

Fuel

Cris

is.

1st p

hase

, 13

– 16

Sep

t – in

volv

ed d

eplo

ymen

t of 1

07 ta

nker

s and

681

tri-s

ervi

ce p

erso

nnel

. In

addi

tion

bulk

refu

ellin

g ve

hs

wer

e m

ade

avai

labl

e.

2nd p

hase

, Nov

– in

volv

ed th

e tra

inin

g of

1,0

00 tr

i-ser

vice

driv

ers t

o dr

ive

and

oper

ate

mil

and

civi

lian

tank

ers –

non

e of

w

hom

wer

e de

ploy

ed; i

n ad

ditio

n, 8

x Fo

den

reco

very

veh

icle

s wer

e de

ploy

ed in

Lon

don,

at M

et P

olic

e re

ques

t, in

the

even

t of

a v

ehic

le b

lock

ade

ther

e.

20 N

ov –

all

mili

tary

ass

ets s

tood

dow

n.

M

ar –

Oct

200

1 Fo

ot a

nd M

outh

out

brea

k. F

irst c

onfir

med

cas

e on

20

Feb;

form

al re

ques

t fro

m M

AFF

for m

il as

sist

ance

9 M

ar; m

il ve

ts

first

dep

loye

d 14

Mar

. Ext

ensi

ve m

ilita

ry a

ssis

tanc

e to

MA

FF (l

ater

DEF

RA

). M

il st

reng

th (t

ri-se

rvic

e) p

eake

d at

2,1

00

pers

onne

l in

mid

Apr

il 20

01. L

ast m

ilita

ry p

erso

nnel

with

draw

n 12

Oct

200

1. M

il as

sist

ance

requ

este

d fo

r a ra

nge

of ta

sks

incl

udin

g ve

terin

ary

assi

stan

ce, c

oord

inat

ion,

logi

stic

supp

ort.

Slau

ghte

r and

dis

posa

l of c

arca

sses

.

Jul –

Aug

200

1 Fi

re S

ervi

ce D

ispu

te (M

erse

ysid

e) –

not

con

tinuo

us d

ispu

te o

r con

tinuo

us d

eplo

ymen

t. 53

9 A

rmed

For

ces p

erso

nnel

(203

ea

ch fr

om R

N a

nd R

AF,

136

from

Arm

y –

Arm

ed p

rovi

ded

com

man

d an

d co

ntro

l). 2

5 G

reen

God

dess

es a

nd 1

1 FR

Ts

depl

oyed

. (D

TLR

) N

ov 2

002

– Ju

n 20

03

Fire

Ser

vice

dis

pute

. Ext

ensi

ve a

ssis

tanc

e na

tionw

ide

to th

e O

DPM

dur

ing

a se

ries o

f non

-con

tinuo

us 2

4-hr

and

48-

hr

strik

es. I

nvol

ving

som

e 19

,000

serv

ice

pers

onne

l.

147

AN

NE

X C

M

AC

C IN

TH

E U

K S

INC

E 1

983

(IL

LU

STR

AT

IVE

LIS

T)

DA

TE

L

OC

AT

ION

SU

PPO

RT

PR

OV

IDE

D

1985

(10-

16 D

ec)

Leed

s M

ain

wat

er su

pply

to L

eeds

dis

rupt

ed; 1

/4 m

illio

n pe

ople

with

out w

ater

. Som

e 19

3 tri

-ser

vice

bow

sers

(at

peak

) dep

loye

d pl

us R

E pu

mpi

ng te

ams.

19

86 (2

6 Ju

ly)

Yor

ks

Pers

onne

l fro

m A

rmy

Scho

ol o

f Mot

or T

rans

port,

Lec

onfie

ld a

ssis

ted

Fire

Ser

vice

afte

r rai

l cra

sh a

t un

man

ned

cros

sing

.

1986

(26

Aug

) Y

orks

Sa

pper

s and

ele

men

ts o

f Cat

teric

k G

arris

on d

eplo

yed

to R

ichm

ond

to re

scue

stra

nded

civ

ilian

s afte

r flo

odin

g.

19

87 (M

ar-A

pr)

Engl

ish

Cha

nnel

Su

bsta

ntia

l RN

and

RA

F as

sist

ance

off

the

coas

t whi

lst B

ritis

h Fo

rces

Ger

man

y as

sist

ed a

t the

Bel

gian

en

d of

the

oper

atio

n.

19

87 (O

ctob

er)

Nat

ionw

ide

‘The

Big

Sto

rm’.

Serv

ice

assi

stan

ce a

fter a

shor

t but

ver

y se

vere

per

iod

of b

ad w

eath

er n

atio

nwid

e.

19

88 (J

uly)

N

orth

Sea

Pi

per A

lpha

oil

rig fi

re.

19

88 (2

3 D

ec) –

19

89 (2

5 Ja

n)

Scot

land

Tr

i-ser

vice

mil

assi

stan

ce in

afte

rmat

h of

the

Lock

erbi

e ai

r cra

sh. M

ost o

f thi

s eff

ort d

irect

ed a

t sea

rch

for

bodi

es a

nd w

reck

age.

Som

e 7,

442

man

-day

s wer

e ex

pend

ed b

y a

num

ber o

f diff

eren

t uni

ts in

clud

ing

men

fr

om th

e R

HF

and

Gor

don

Hig

hlan

ders

who

wer

e di

rect

ly in

volv

ed a

fter t

he e

vent

alo

ng w

ith u

p to

12

helic

opte

rs, p

hoto

recc

e fli

ghts

, RE

and

RA

F re

pair

and

salv

age

and

subs

eque

nt su

ppor

t to

the

AA

IB.

CA

D L

ongt

own

prov

ided

han

gar a

ccom

mod

atio

n fo

r the

wre

ckag

e.

19

89 (8

-10

Jan)

Le

ices

ters

hire

A

rmy/

RA

F as

sist

ance

afte

r Keg

wor

th a

ir cr

ash.

70/

80 p

erso

nnel

from

Arm

y pl

us R

AF

helic

opte

rs,

mou

ntai

n re

scue

team

s, sa

lvag

e, re

cove

ry a

nd tr

ansp

ort o

f the

wre

ckag

e.

19

90 (A

ug)

Dor

set

124

mil

pers

onne

l fro

m R

AC

Cen

tre a

nd G

urkh

a Si

g Sq

n as

sist

ed p

olic

e in

sear

ch fo

r mis

sing

chi

ld.

19

90 (8

-11

Dec

) N

orth

+ W

est

Exte

nsiv

e A

rmy

and

RA

F as

sist

ance

in w

ake

of se

vere

snow

stor

ms.

TA p

rovi

ded

bulk

of A

rmy

cont

ribut

ion.

350

+ pe

rson

nel,

120

vehs

, 8 h

elos

and

2 H

ercu

les.

1991

(6 M

ay)

Nor

folk

Pe

rson

nel f

rom

39

Engr

Reg

t RE

and

RC

T la

id 1

4 ro

lls o

f tra

ckw

ay to

ena

ble

civi

l aut

horit

ies t

o de

al w

ith

chem

ical

spill

age

on c

oast

.

148

1993

(15-

18 Ja

n)

Scot

land

A

ssis

tanc

e by

Arm

y, R

Mar

ines

+ R

AF

to e

mer

genc

y se

rvic

es a

t tim

e of

snow

stor

ms t

hen

seve

re fl

oods

.

1993

(14-

18 Ju

n)

N W

ales

A

ssis

tanc

e to

loca

l aut

horit

ies d

urin

g ba

d w

eath

er (1

pltn

from

1 S

taff

ords

).

1994

(10

Jan

- 7 F

eb)

Suss

ex

Ass

ista

nce

in C

hich

este

r dur

ing

bad

wea

ther

(4 x

bai

ley

brid

ges,

sand

bags

, and

ele

men

ts o

f 36

Reg

t RE

(12

man

mai

nten

ance

team

).

1995

(1-2

Feb

) Y

orks

-Dur

ham

A

ssis

tanc

e du

ring

bad

wea

ther

: ele

men

ts o

f var

ious

uni

ts in

clud

ing

9 R

egt A

AC

(102

per

sonn

el),

1 R

RF

(5 p

erso

nnel

) and

ITB

Ous

ton

(45

pers

onne

l).

19

95 (2

2 Fe

b)

Hex

ham

A

ssis

tanc

e du

ring

bad

wea

ther

. 26

loca

l Arm

y pe

rson

nel.

19

95 (1

1 A

pr)

Nor

thum

berla

nd

100

pers

onne

l ass

iste

d w

ith c

omba

ting

fore

st fi

re (H

arbo

ttle

Fore

st n

ear O

tterb

urn)

.

1995

(25

May

) Y

orks

A

ssis

tanc

e to

civ

il po

lice

at sc

ene

of a

ir cr

ash

– 4

land

rove

rs (i

ncl 1

0 cr

ews)

from

24

Fd A

mb,

40

pers

onne

l ex

2 Si

g R

egt +

a c

lass

30

track

way

laid

by

38 E

ngr R

egt.

19

95 (1

8-19

Aug

) H

eref

ord

25 R

E pe

rson

nel a

ssis

ted

with

com

batin

g gr

ass f

ires o

n M

alve

rn H

ills.

19

95 (2

0-21

Aug

) Pr

esto

n Fu

lwoo

d B

arra

cks u

sed

as e

mer

genc

y ev

ac si

te a

t tim

e of

toxi

c ch

emic

al sp

ill.

19

96 (6

-12

Feb)

U

K: W

est M

idla

nds

and

Scot

land

es

peci

ally

55 p

erso

nnel

, 42

land

rove

rs, 8

lorr

ies +

2 a

mbu

lanc

es, h

elic

opte

rs a

nd 1

Her

cule

s (pl

us lo

ts o

f bla

nket

s an

d sl

eepi

ng b

ags,

RN

, RA

F +

Arm

y he

los +

1 H

ercu

les)

ass

iste

d th

e ci

vil a

utho

ritie

s dur

ing

seve

re

wea

ther

. In

addi

tion

pers

onne

l pro

vide

d m

eals

-on-

whe

els i

n N

orth

Wal

es a

nd 4

land

rove

rs e

mpl

oyed

in

Lanc

ashi

re in

Cum

berla

nd.

19

96 (2

0 Fe

b)

Ken

t 6

TA p

erso

nnel

+ 3

land

rove

rs p

rovi

ded

assi

stan

ce to

the

loca

l hos

pita

l in

Can

terb

ury

durin

g ba

d w

eath

er.

19

97 (J

an)

Wilt

s 25

0 pe

rson

nel a

ssis

ted

civi

l pol

ice

in se

arch

for s

oldi

er’s

mis

sing

chi

ld.

19

97 (2

-3 Ju

l) Sc

otla

nd

40 p

erso

nnel

ex

3 H

LDR

S +

RA

F, in

cl tp

t, as

sist

ed e

mer

genc

y se

rvic

es to

dea

l with

floo

ding

in E

lgin

and

Fo

rres

.

1997

(11

Dec

) G

lasg

ow

Reg

ular

s and

TA

per

sonn

el e

x 3

RH

F m

anne

d w

ater

dis

tribu

tion

poin

ts w

hen

the

wat

er su

pply

to 2

50,0

00

resi

dent

s was

dis

rupt

ed.

149

1998

(Apr

– E

aste

r w

eeke

nd)

E A

nglia

, Mid

land

s, H

ome

Cou

ntie

s A

ssis

tanc

e du

ring

seve

re w

eath

er. O

ver 3

00 p

erso

nnel

from

a v

arie

ty o

f uni

ts, b

oth

regu

lar a

nd T

A p

lus

boat

s and

sand

bags

. Inc

ludi

ng:

Nor

tham

pton

– 7

0 TA

Pe

terb

orou

gh –

60

TA

St Iv

es –

40

pers

onne

l B

anbu

ry/M

ilton

Key

nes –

130

TA

St

ratfo

rd/L

emin

gton

Spa

– 5

0+ p

erso

nnel

1998

(Apr

) H

umbe

rsid

e 32

0 m

il pe

rson

nel e

x 2

Div

dep

loye

d to

ass

ist c

ivil

polic

e in

sear

ch fo

r mis

sing

wom

an.

19

98 (J

un)

Che

shire

1

pln

ex 1

PW

O a

ssis

ted

civi

l pol

ice

in se

arch

for m

issi

ng c

hild

.

1998

(22

Oct

) W

ales

– P

owys

30

per

sonn

el e

x IT

C B

reco

n as

sist

ed w

ith a

fterm

ath

of fl

oodi

ng -

sand

bags

+ e

vacu

atio

n of

an

OA

P ho

me.

1999

(Jan

) Su

ssex

50

per

sonn

el e

x G

RC

+ 1

PW

RR

ass

iste

d ci

vil p

olic

e in

sear

ch fo

r mis

sing

scho

olgi

rls.

19

99 (M

ay)

Yor

ks

Pers

onne

l fro

m D

efen

ce S

choo

l of T

rans

port,

Drif

field

, ass

iste

d w

ith e

vacu

atio

n of

civ

ilian

s afte

r fire

at

chem

ical

pla

nt.

19

99 (A

ug)

Fore

st o

f Dea

n 35

per

sonn

el e

x 1

Che

shire

ass

iste

d ci

vil p

olic

e to

sear

ch fo

r mis

sing

ligh

t airc

raft.

1999

(19

Sept

) N

orth

ern

Irel

and

Floo

d re

lief i

n B

ally

clar

e. E

lem

ents

of 9

R Ir

ish

depl

oyed

.

2000

(Sep

t) Po

rtsm

outh

H

M N

aval

Bas

e pr

ovid

ed p

umps

and

per

sonn

el to

hel

p w

ith se

wag

e pr

oble

m a

fter h

eavy

rain

.

2000

(Oct

-Nov

) V

ario

us

Op

Wat

erfo

wl:

Floo

d re

lief a

fter h

eavy

rain

in e

arly

Oct

ober

.

− 12

+14-

15 O

ct –

150

per

sonn

el e

x 1

PAR

A a

nd R

GR

, plu

s boa

ts, d

iver

s and

veh

icle

s of 3

6 En

gr R

egt d

eplo

yed

in S

usse

x an

d K

ent

− 30

Oct

– m

inor

supp

ort g

iven

in v

ario

us p

arts

of t

he c

ount

ry –

bla

nket

s in

Wilt

s, 1/

2 tp

M

arin

es in

Som

erse

t, ve

hicl

es +

driv

ers i

n G

los +

Ken

t, an

d 10

boa

ts a

t Wal

tham

Abb

ey,

Esse

x.

150

− 30

Oct

– O

p W

ater

fow

l com

men

ced.

− 31

Oct

– li

mite

d as

sist

ance

at Y

aldi

ng, K

ent (

R M

edw

ay),

Glo

s and

Som

erse

t.

− 2

Nov

00

– si

gnifi

cant

dep

loym

ent i

n W

orce

ster

shire

(Sev

ern

Val

ley)

– e

lem

ents

of 1

RW

F an

d 21

4 B

ty R

A (V

) in

Wor

cest

er c

ity to

hel

p ev

acua

te a

floo

ded

hosp

ital

−

elem

ents

of W

est M

idla

nd R

egt,

TA, s

tood

by

in K

idde

rmin

ster

− at

this

tim

e so

me

1,20

0 tro

ops w

ere

now

dep

loye

d or

hel

d co

ntin

gent

. Thi

s lev

el h

eld

until

10

Nov

00.

− Ea

rly N

ov si

gnifi

cant

floo

ding

in Y

orks

hire

on

R O

use:

− M

il de

ploy

men

t co-

ordi

nate

d by

HQ

15

(Nor

th E

ast)

Bde

− 26

7 tro

ops d

eplo

yed

in th

e ci

ty o

f Yor

k (p

lus a

furth

er 3

30 h

eld

at 1

/2 h

r NTM

)

− 46

0 tro

ops d

eplo

yed

in S

elby

(+2

x R

AF

Chi

nook

hel

icop

ters

)

− m

il ve

hicl

es (+

driv

ers)

dep

loye

d in

the

Wes

t Mid

land

s (pl

us 1

00 p

erso

nnel

ex

1 R

WF

on st

andb

y)

−

60 tr

oops

dep

loye

d in

Not

tingh

am (R

Tre

nt)

−

smal

ler d

eplo

ymen

ts c

ontin

ued

on th

e R

Med

way

in K

ent

−

Op

Wat

erfo

wl w

as te

rmin

ated

on

14 N

ov o

win

g to

stab

ilise

d w

ater

leve

ls.

20

00 (e

arly

Dec

) Se

vern

Val

ley

Floo

ding

– v

ehic

les e

x 10

4 R

egt R

A(V

) and

ele

men

ts o

f 1 R

WF

depl

oyed

.

2001

(Feb

) K

ent

40 p

erso

nnel

ex

1 R

Iris

h de

ploy

ed to

hel

p w

ith lo

calis

ed fl

oodi

ng.

20

01 (F

eb)

Nor

ther

n Ir

elan

d A

hel

icop

ter a

nd d

iver

s ass

iste

d th

e N

I Env

ironm

ent A

genc

y in

rem

ovin

g an

airc

raft

whi

ch h

ad b

ecom

e tra

pped

in m

arsh

land

nea

r Lon

dond

erry

airp

ort.

151

2001

(Feb

) Y

orks

SA

R h

elic

opte

rs a

ssis

ted

at th

e im

med

iate

scen

e of

the

Selb

y tra

in c

rash

. Sub

sequ

ently

an

emer

genc

y m

ortu

ary

was

est

ablis

hed

at th

e ne

arby

RA

F st

atio

n.

20

01 (F

eb-M

ar)

Scot

land

H

elic

opte

r and

ligh

t airc

raft

help

ed p

rovi

de a

ssis

tanc

e du

ring

bad

wea

ther

in th

e so

uth

of S

cotla

nd.

20

01 (M

ay)

Nor

ther

n Ir

elan

d A

Wes

sex

helic

opte

r hel

ped

dous

e a

fire

on C

amlo

ugh

Mou

ntai

n.

20

01 (J

uly)

K

ent

Arm

y pe

rson

nel h

elpe

d de

liver

bot

tled

wat

er to

com

mun

ities

of R

omne

y an

d Ly

dd w

hen

thei

r wat

er

supp

ly w

as c

onta

min

ated

.

2001

(Dec

) SW

Eng

land

R

N S

ea K

ing

helic

opte

r fle

w m

embe

rs o

f the

Dev

on F

ire B

rigad

e to

Lun

dy Is

land

to d

eal w

ith a

hea

th

fire.

2002

(Feb

) N

orth

ern

Irel

and

Hel

icop

ter a

nd in

fant

ry h

elpe

d se

arch

for m

issi

ng te

enag

er.

152

AN

NE

X D

Seri

al

OPE

RA

TIO

N

CIR

CU

MST

AN

CE

S D

AT

ES

MoD

IN

VO

LV

ED

C

HA

RG

ING

RE

GIM

E

CO

ST

1 O

p Fr

esco

(Zul

u)

(See

Not

e 1)

N

atio

nal F

irefig

hter

s' St

rike

Aug

02

to Ju

ne 0

3"N

o lo

ss" c

ost b

eing

com

mun

icat

ed

to O

DPM

A

ppro

x £7

5M F

Y2/

03 a

lone

; FY

03/0

4 co

st n

ot y

et a

vaila

ble

2 O

p Fr

esco

(M

erse

ysid

e)

Mer

seys

ide

Fire

fight

ers'

Strik

e Ju

l-01

"No

loss

" cos

t bei

ng c

omm

unic

ated

to

DTL

R

App

rox

£0.7

M

3 O

p Pe

nins

ular

Fo

ot a

nd M

outh

Dis

ease

M

ar-O

ct 0

1 "N

o lo

ss"

cost

com

mun

icat

ed to

D

EFR

A

App

rox

£7M

4 O

p Sa

belli

an

Mili

tary

ass

ista

nce

durin

g fu

el c

risis

Se

p-00

"N

o lo

ss"

cost

cap

ture

d

App

rox

£2.5

M

Not

e 1:

No

loss

cos

t reg

ime

appl

ied

only

afte

r con

sulta

tion

with

HM

Tre

asur

y

153

Appendix 10: Note by Jennifer Smookler, Committee Specialist - Summary of Responses from Category 1 and 2 Responders In July, the Committee sent letters to organisations in the NHS and energy, media and food sectors, asking them if they would like to be included as Category 1 or 2 Responders. This is a summary of their responses. In brief: • 22 NHS bodies in England and Wales replied, all of which considered that some or all of the NHS

should be included as Category 1 or 2 Responders. • Three organisations from the energy sector replied, none of which thought they should be included as

Category 1 or 2 Responders. • The Food and Drink Federation stated that the food and drink industry should be included as a

Category 2 Responder. • The BBC did not consider that it should be included in either Category 1 or 2.

154

Org

anis

atio

n R

ecom

men

ded

for

incl

usio

n as

Res

pond

ers:

C

omm

ent

C

ateg

ory

1 C

ateg

ory

2 N

eith

er

N

HS

Hea

lth P

rote

ctio

n A

genc

y

Hea

lth P

rote

ctio

n A

genc

y S

trate

gic

Hea

lth A

utho

ritie

s

Off

ice

of th

e St

rate

gic

Hea

lth

Aut

horit

ies

Acu

te H

ospi

tal T

rust

s P

rimar

y C

are

Trus

ts

Stra

tegi

c H

ealth

Aut

horit

ies

Fou

ndat

ion

Trus

ts (i

f le

gisl

atio

n is

pas

sed)

H

ealth

Pro

tect

ion

Age

ncy

All

NH

S bo

dies

hav

e a

spec

ific

role

to p

lay

in th

e ev

ent o

f an

emer

genc

y as

def

ined

in P

art 1

of t

he d

raft

Bill

, and

the

NH

S is

ob

liged

regu

larly

to re

view

its r

eadi

ness

to c

ompl

y w

ith e

mer

genc

y pl

anni

ng m

easu

res.

It is

ther

efor

e of

som

e co

ncer

n th

at th

e dr

aft B

ill

does

not

ade

quat

ely

refle

ct th

e cu

rren

t stru

ctur

e of

the

NH

S, n

or it

s po

tent

ial d

evel

opm

ent.

Avo

n, G

louc

este

rshi

re a

nd

Wilt

shire

Stra

tegi

c H

ealth

A

utho

rity

A

cute

Hos

pita

l Tru

sts

Pr

imar

y C

are

Trus

ts

A

mbu

lanc

e Tr

usts

Stra

tegi

c H

ealth

A

utho

rity

Each

of t

hese

age

ncie

s pro

vide

s an

imm

edia

te re

spon

se to

Maj

or

Inci

dent

s in

certa

in c

ircum

stan

ces.

The

role

of t

he S

trate

gic

Hea

lth

Aut

horit

y in

such

an

inci

dent

wou

ld b

e to

ens

ure

the

imm

edia

te a

nd

corr

ect r

espo

nse

by th

e pa

rts o

f the

NH

S th

at w

ould

pro

vide

the

emer

genc

y se

rvic

e. In

a w

ides

prea

d in

cide

nt w

e ha

ve a

role

in c

o-or

dina

ting

the

NH

S’s r

espo

nse.

B

edfo

rdsh

ire a

nd

Her

tford

shire

Stra

tegi

c H

ealth

A

utho

rity

N

HS

The

NH

S is

alre

ady

fully

invo

lved

in th

e as

sess

men

t of t

he ri

sk o

f em

erge

ncie

s and

the

cons

truct

ion

of c

ontin

genc

y pl

ans t

hrou

gh

mem

bers

hip

of b

oth

the

Her

tford

shire

and

Bed

ford

shire

Cou

nty

Emer

genc

y Pl

anni

ng C

omm

ittee

s. (C

hief

Exe

c re

pres

enta

tion)

. Oth

er

colle

ague

s, e.

g. th

e D

irect

or o

f Pub

lic H

ealth

of t

he le

ad P

rimar

y C

are

Trus

t and

Con

sulta

nts i

n C

omm

unic

able

Dis

ease

wor

king

for

the

new

Hea

lth P

rote

ctio

n A

genc

y, a

re a

lso

invo

lved

in su

ppor

t of

loca

l em

erge

ncy

plan

ning

. B

irmin

gham

& th

e B

lack

C

ount

ry S

trate

gic

Hea

lth

Aut

horit

y

A

mbu

lanc

e Se

rvic

e Tr

usts

Prim

ary

Car

e Tr

usts

The

mai

n re

spon

sibi

lity

for e

mer

genc

y pl

anni

ng re

sts w

ith P

rimar

y C

are

Trus

ts, b

ut o

ur e

xper

ienc

e in

the

rece

nt Ir

aq w

ar si

tuat

ion

for

exam

ple

dem

onst

rate

s tha

t the

Stra

tegi

c H

ealth

Aut

horit

y an

d A

cute

H

ospi

tal N

HS

Trus

ts h

ad a

maj

or p

art t

o pl

ay to

o.

Nor

th &

Eas

t Yor

kshi

re &

N

orth

ern

Linc

olns

hire

St

rate

gic

Hea

lth A

utho

rity

Pr

imar

y C

are

Trus

ts

A

mbu

lanc

e Tr

usts

Acc

iden

t and

Em

erge

ncy

Uni

ts in

Acu

te T

rust

s

St

rate

gic

Hea

lth

Aut

horit

ies

R

est o

f ho

spita

l (n

ot A

&E)

M

enta

l Hea

lth T

rust

s may

requ

ire m

ore

cons

ider

atio

n an

d m

ay n

eed

to b

e C

ateg

ory

1 du

e to

cla

ssifi

catio

n of

inpa

tient

s but

rout

inel

y w

ould

be

Cat

egor

y 2.

Th

e ro

le o

f NH

S D

irect

and

NH

S Lo

gist

ics m

ust a

lso

be c

onsi

dere

d,

the

form

er in

term

s of i

nfor

mat

ion

givi

ng d

urin

g an

em

erge

ncy

and

155

M

enta

l H

ealth

Tr

usts

the

late

r reg

ardi

ng th

e ov

eral

l lon

g-te

rm re

silie

nce

of th

e he

alth

se

rvic

e.

It go

es w

ithou

t say

ing

that

if so

me

or a

ll of

the

orga

nisa

tions

m

entio

ned

abov

e ar

e to

be

incl

uded

in e

ither

cat

egor

y, c

lear

gui

danc

e w

ill b

e ne

eded

as t

o th

e im

plic

atio

ns a

nd re

quire

men

ts a

cros

s hea

lth

econ

omy

orga

nisa

tions

. Th

ames

Val

ley

Stra

tegi

c H

ealth

Aut

horit

y S

trate

gic

Hea

lth A

utho

ritie

s

A

ll N

HS

Trus

ts a

nd P

rimar

y C

are

Trus

ts a

re e

xpec

ted

to h

ave

emer

genc

y pl

ans a

nd a

t Stra

tegi

c H

ealth

Aut

horit

y w

e w

ork

to e

nsur

e th

at th

ere

is a

co-

ordi

nate

d ap

proa

ch to

em

erge

ncy

plan

ning

. Thi

s w

ork

is in

con

junc

tion

with

the

loca

l tea

ms o

f the

new

Hea

lth

Prot

ectio

n A

genc

y w

ho h

ave

spec

ialis

t sta

ff in

pub

lic h

ealth

pr

otec

tion.

In te

rms o

f Em

erge

ncy

plan

ning

, we

also

shar

e an

d ar

e pa

rt of

the

over

all T

ham

es V

alle

y Po

lice

emer

genc

y pl

an. I

n em

erge

ncy

situ

atio

ns, t

he P

olic

e se

rvic

e is

in c

harg

e of

initi

atin

g th

e "G

old

Com

man

d" c

entre

and

Hea

lth is

just

one

of t

he m

any

agen

cies

that

ar

e re

pres

ente

d at

Gol

d co

mm

and.

Fur

ther

mor

e lo

cal N

HS

Trus

ts w

ill

be re

pres

ente

d at

Pol

ice

"Silv

er"

and

poss

ibly

"B

ronz

e" c

omm

and

leve

ls.

Ove

rall,

my

thou

ghts

are

that

if L

ocal

Aut

horit

ies a

re C

ateg

ory

1 re

spon

ders

, the

n th

e lo

cal N

HS

shou

ld a

lso

be C

ateg

ory

1 re

spon

ders

(w

hich

pro

babl

y w

ill b

e be

st c

o-or

dina

ted

at S

trate

gic

Hea

lth

Aut

horit

y le

vel).

Tren

t Stra

tegi

c H

ealth

A

utho

rity

NH

S A

mbu

lanc

e Tr

usts

Th

e N

HS

has t

radi

tiona

lly ta

ken

a m

ajor

par

t in

man

agin

g th

e he

alth

im

pact

of c

ivil

emer

genc

ies -

this

is a

bro

ader

role

than

just

the

resp

onse

of t

he A

mbu

lanc

e Se

rvic

e - r

ecen

t dis

cuss

ion

with

the

DO

H

follo

win

g th

e la

st, r

ecen

t reo

rgan

isat

ion

of th

e N

HS

plac

es

resp

onsi

bilit

y on

Stra

tegi

c he

alth

Aut

horit

ies (

SHA

) to

ensu

re

emer

genc

y pr

epar

edne

ss o

f the

NH

S. T

he N

HS

is th

eref

ore

oblig

ed

to h

ave

plan

s whi

ch a

re d

evel

oped

in c

onju

nctio

n w

ith o

ther

loca

l ag

enci

es. I

t wou

ld se

em u

nhel

pful

to n

ot h

ave

the

NH

S in

volv

ed in

th

e lo

cal p

lann

ing

for e

mer

genc

ies.

It w

ould

als

o be

unf

ortu

nate

if th

e

156

Am

bula

nce

Serv

ice

- ess

entia

lly a

reac

tive

fron

t lin

e se

rvic

e w

as

cate

goris

ed a

s Cat

egor

y 1

rath

er th

an th

e N

HS.

It h

as ta

ken

seve

ral

year

s to

mak

e to

the

polic

e an

d lo

cal L

as a

war

e of

the

mor

e st

rate

gic

role

of t

he N

HS

in p

lann

ing

for d

isas

ters

- em

erge

ncy

plan

s rec

ently

de

velo

ped

by S

HA

s mak

e th

is d

istin

ctio

n qu

ite c

lear

. N

orth

umbe

rland

and

Tyn

e &

W

ear S

trate

gic

Hea

lth

Aut

horit

y

Th

ere

are

very

few

(if a

ny) a

reas

of p

oten

tial r

esili

ence

resp

onse

w

hich

do

not h

ave

NH

S im

plic

atio

ns. T

hese

impl

icat

ions

are

ofte

n of

an

em

erge

ncy

natu

re a

nd re

quire

rapi

d im

plem

enta

tion

supp

orte

d by

ex

celle

nt c

omm

unic

atio

ns. I

nclu

sion

in th

e co

re p

roce

ss o

f pla

nnin

g ce

rtain

ly fa

cilit

ates

this

. In

vie

w o

f thi

s, it

is li

kely

that

the

NH

S w

ill b

e a

de fa

cto

cate

gory

1

orga

nisa

tion

wha

teve

r the

bill

says

, and

it w

ould

seem

sens

ible

for

the

bill

to re

flect

it.

Som

e cl

arity

abo

ut w

hat i

s mea

nt b

y ‘N

HS’

wou

ld a

lso

be u

sefu

l in

the

stru

ctur

ing

of th

e bi

ll. It

doe

s see

m a

littl

e od

d, w

hen

the

cons

ulta

tion

incl

udes

NH

S A

mbu

lanc

e Tr

usts

und

er c

ateg

ory

1, th

en

to b

e as

ked

whe

ther

the

NH

S sh

ould

be

incl

uded

as w

ell.

W

e ne

ed to

ens

ure

that

the

loca

l NH

S re

spon

ds a

s a fu

nctio

nal w

hole

in

a c

risis

, with

cle

ar li

nes o

f acc

ount

abili

ty th

at c

an b

e ra

pidl

y im

plem

ente

d. T

his i

s lik

ely

to b

e ea

sier

with

gre

ater

pre

-cris

is

invo

lvem

ent.

Sout

h Y

orks

hire

Stra

tegi

c H

ealth

Aut

horit

y A

ll N

HS

Wes

t Yor

kshi

re S

trate

gic

Hea

lth A

utho

rity

Prim

ary

Car

e Tr

usts

A

mbu

lanc

e Tr

usts

A

cute

Tru

sts

Men

tal h

ealth

Tru

sts (

may

ne

ed to

be

Cat

1 d

ue to

cl

assi

ficat

ion

of in

patie

nts

but w

ould

rout

inel

y be

Cat

2)

Stra

tegi

c H

ealth

A

utho

ritie

s

I wou

ld a

rgue

that

prim

ary

care

trus

ts a

nd a

mbu

lanc

e tru

sts s

houl

d be

in

clud

ed in

Cat

egor

y 1,

and

SH

As i

n C

ateg

ory

2. A

cute

trus

ts c

ould

cl

early

hav

e a

resp

onsi

bilit

y un

der C

ateg

ory

1, a

nd m

enta

l hea

lth

trust

s may

nee

d to

be

cons

ider

ed C

ateg

ory

1 du

e to

cla

ssifi

catio

n of

in

patie

nts b

ut ro

utin

ely

shou

ld b

e C

ateg

ory

2.

Als

o, th

e R

egio

nal D

irect

or o

f Pub

lic H

ealth

role

as t

he C

hief

M

edic

al O

ffic

er to

the

Reg

ion

is n

ot c

onsi

dere

d in

the

draf

t bill

, al

thou

gh th

is is

an

impo

rtant

role

in th

e N

HS

resp

onse

to m

ajor

in

cide

nts.

157

Surr

ey a

nd S

usse

x St

rate

gic

Hea

lth A

utho

rity

Prim

ary

Car

e Tr

usts

R

ecei

ving

Hos

pita

ls

Stra

tegi

c H

ealth

Aut

horit

ies

Dor

set a

nd S

omer

set S

trate

gic

Hea

lth A

utho

rity

NH

S as

a w

hole

Leic

este

rshi

re,

Nor

tham

pton

shire

and

R

utla

nd S

trate

gic

Hea

lth

Aut

horit

y

NH

S Tr

usts

P

rimar

y C

are

Trus

ts

Hea

lth P

rote

ctio

n A

genc

y

Stra

tegi

c H

ealth

A

utho

rity

Onl

y in

exc

eptio

nal c

ircum

stan

ces,

whe

re d

eem

ed n

eces

sary

and

ag

reed

loca

lly, w

ould

the

SHA

lead

the

man

agem

ent o

f an

emer

genc

y. I

ther

efor

e fe

el th

e SH

A sh

ould

be

a ‘C

ateg

ory

2 R

espo

nder

’.

Due

to th

e br

oad

natu

re o

f the

Bill

, I d

o be

lieve

it is

ess

entia

l tha

t the

re

gula

tions

spec

ify th

e in

volv

emen

t of a

ll N

HS

orga

nisa

tions

and

cl

early

def

ine

thei

r rol

es a

nd re

spon

sibi

litie

s.

Nor

folk

, Suf

folk

, and

C

ambr

idge

shire

Stra

tegi

c H

ealth

Aut

horit

y

NH

S

Ham

pshi

re a

nd Is

le o

f Wig

ht

Stra

tegi

c H

ealth

Aut

horit

y

NH

S or

gani

satio

ns

We

reco

gnis

e th

at th

e m

ultip

licity

of N

HS

orga

nisa

tions

wou

ld m

ake

it di

ffic

ult f

or a

ll to

be

repr

esen

ted

as fu

ll m

embe

rs o

f Loc

al

Res

ilien

ce F

orum

s (LR

Fs).

Our

sugg

estio

n is

that

, in

addi

tion

to

repr

esen

tatio

n by

the

loca

l am

bula

nce

NH

S Tr

ust,

the

loca

l NH

S w

ithin

a p

olic

e fo

rce

area

shou

ld b

e re

pres

ente

d on

the

LRF

by e

ither

th

e St

rate

gic

Hea

lth A

utho

rity

or o

ne o

f the

Lea

d Pr

imar

y C

are

Trus

ts. T

hese

org

anis

atio

ns sh

ould

then

hav

e a

resp

onsi

bilit

y to

es

tabl

ish

inte

rnal

col

labo

rativ

e m

achi

nery

to e

nsur

e th

at a

ny a

ctio

n re

quire

d by

the

loca

l NH

S is

take

n.

Wal

es L

ocal

Hea

lth B

oard

s

Fl

ints

hire

Loc

al H

ealth

Boa

rd

Loc

al H

ealth

Boa

rds

(Wal

es)

Prim

ary

Car

e Tr

usts

(E

ngla

nd)

Pub

lic H

ealth

Ser

vice

s (W

ales

) H

ealth

Pro

tect

ion

Age

ncy

(Eng

land

) A

cute

/Inte

grat

ed N

HS

Trus

ts

Nat

iona

l Blo

od

Tran

sfus

ion

Serv

ice

158

Cer

edig

ion

Loca

l Hea

lth

Boa

rd

All

leve

ls o

f the

NH

S,

Trus

ts, L

ocal

Hea

lth

Boa

rds,

NPH

S

We

wer

e m

ost s

urpr

ised

to re

ad th

at th

e N

HS

was

not

incl

uded

as a

“C

ateg

ory

1 R

espo

nder

” an

d it

is o

ur v

iew

that

this

is e

ssen

tial.

It is

diff

icul

t to

see

how

issu

es o

f ava

ilabi

lity,

cap

acity

etc

. of t

he

NH

S fa

cilit

ies c

ould

be

addr

esse

d by

any

one

else

. H

ealth

Boa

rds o

f: C

ardi

ff

Rho

ndda

Cyn

on T

aff

Val

e of

Gla

mor

gan

Bla

enau

G

wen

t C

aerp

hilly

M

onm

outh

shire

To

rfae

n

Wel

sh N

HS

Trus

ts

Wel

sh N

atio

nal

Publ

ic H

ealth

Se

rvic

e

It

is th

e ge

nera

l con

sens

us th

at, w

hile

the

ambu

lanc

e Se

rvic

e is

in

clud

ed a

s a C

ateg

ory

I Res

pond

er, i

t wou

ld b

e in

appr

opria

te fo

r the

re

mai

nder

of t

he N

HS

to b

e ex

clud

ed fr

om th

e co

ntin

genc

y pl

anni

ng

proc

ess a

t a lo

cal l

evel

. H

owev

er th

ere

are

diff

erin

g vi

ews a

s to

whi

ch c

ateg

ory

of re

spon

der

the

diff

eren

t bra

nche

s of t

he N

HS

shou

ld b

e cl

assi

fied.

In

term

s of L

ocal

Hea

lth B

oard

s som

e ar

e of

the

view

that

they

sh

ould

be

Cat

egor

y 1

whi

le o

ther

s con

side

r tha

t Cat

egor

y 2

to b

e th

e m

ore

appr

opria

te.

It is

the

cons

ider

ed v

iew

that

NH

S Tr

usts

(in

Wal

es) s

houl

d be

C

ateg

ory

1 re

spon

ders

whi

le th

e N

atio

nal P

ublic

Hea

lth S

ervi

ce in

W

ales

shou

ld b

e in

Cat

egor

y 2.

Po

wys

Loc

al H

ealth

Boa

rd

A

ll N

HS

N

ewpo

rt Lo

cal H

ealth

Boa

rd

R

ecei

ving

hos

pita

ls

A

mbu

lanc

e tru

sts

Lo

cal

Hea

lth

Boa

rds

St

atut

ory

Hea

lth

Aut

horit

ies

Prim

ary

Car

e Tr

usts

Nea

th P

ort T

albo

t LH

B

A

ll N

HS

Th

e N

HS

shou

ld b

e in

clud

ed a

s a C

ateg

ory

1 R

espo

nder

and

shou

ld

parti

cipa

te in

the

cont

inge

ncy

plan

ning

pro

cess

at t

he lo

cal l

evel

. Th

ere

are

very

ofte

n he

alth

serv

ice

impl

icat

ions

in e

mer

genc

y si

tuat

ions

and

it is

ess

entia

l tha

t the

NH

S is

incl

uded

at t

he p

lann

ing

stag

e.

Ene

rgy

LP

Gas

Ass

ocia

tion

Nei

ther

159

The

Ass

ocia

tion

of U

nite

d K

ingd

om O

il In

depe

nden

ts

(AU

KO

I)

Nei

ther

W

e ar

e a

Mem

bers

hip

orga

nisa

tion

repr

esen

ting

inde

pend

ent

com

pani

es in

volv

ed in

who

lesa

le sa

les,

dist

ribut

ion

and

reta

iling

of

petro

l, di

esel

and

oth

er p

etro

leum

pro

duct

s in

the

UK

. The

Mem

bers

of

AU

KO

I are

var

ious

ly in

volv

ed w

ith re

tail

supp

ly, a

s bot

h in

depe

nden

t ret

aile

rs a

nd su

perm

arke

ts a

nd re

pres

ent a

t lea

st 2

5 %

of

the

petro

l/die

sel r

etai

l mar

ket i

n th

e U

K.

This

Ass

ocia

tion

is o

f the

opi

nion

that

non

e of

its M

embe

r com

pani

es

shou

ld b

e in

clud

ed a

s Cat

egor

y 2

Res

pond

ers w

ithin

the

fram

ewor

k of

the

prop

osed

dra

ft B

ill. W

e co

ncur

with

UK

pia’

s vie

ws t

hat t

his

wou

ld in

ess

ence

dup

licat

e th

e re

quire

men

ts o

f the

Dow

nstre

am O

il Em

erge

ncy

Res

pons

e Pl

an le

adin

g to

unn

eces

sary

dup

licat

ion

of

arra

ngem

ents

and

pos

sibl

e co

nfus

ion.

W

e ar

e al

so c

once

rned

at t

he a

nti-c

ompe

titiv

e is

sues

that

mig

ht a

rise

from

the

shar

ing

of in

form

atio

n an

d jo

int m

anag

emen

t of f

uel

supp

lies t

hat m

ight

pro

ve n

eces

sary

und

er th

ese

prov

isio

ns. A

UK

OI

wou

ld n

ot e

ngag

e in

any

pra

ctic

es in

bre

ach

of c

urre

nt U

K o

r Eu

rope

an c

ompe

titio

n la

w.

UK

Pet

role

um In

dust

ry

Ass

ocia

tion

Lim

ited

Nei

ther

Th

e co

nstru

ctio

n of

se

para

te

Emer

genc

y R

espo

nse

plan

s on

a

regi

onal

bas

is (

let

alon

e at

the

lev

el o

f C

ount

y C

ounc

ils o

r Po

lice

Aut

horit

y ar

eas)

to s

eek

to d

eal w

ith o

r m

anag

e fu

el s

uppl

ies

in a

n em

erge

ncy

situ

atio

n co

uld

give

ris

e to

sig

nific

ant

logi

stic

al a

nd

oper

atio

nal p

robl

ems.

Any

atte

mpt

to e

stab

lish

them

cou

ld s

erio

usly

un

derm

ine

the

effe

ctiv

enes

s of

the

nat

iona

l pl

an t

hat

has

been

co

nstru

cted

. Th

e lo

gist

ical

and

com

mer

cial

info

rmat

ion

that

the

com

pani

es m

ight

be

cal

led

upon

as

Cat

egor

y 2

Res

pond

ers,

to s

uppl

y to

Cat

egor

y 1

Res

pond

ers

coul

d be

hi

ghly

co

nfid

entia

l in

form

atio

n fr

om

a co

mm

erci

al a

nd c

ompe

titiv

e vi

ewpo

int.

Ther

e w

ould

not

see

m to

be

any

prov

isio

n in

the

Bill

for k

eepi

ng th

is in

form

atio

n co

nfid

entia

l. ..

To im

pose

the

oblig

atio

ns o

f a C

ateg

ory

2 R

espo

nder

upo

n th

e hi

ghly

co

mpe

titiv

e in

depe

nden

t co

mm

erci

al o

il co

mpa

nies

, com

pris

ing

the

UK

Dow

nstre

am O

il In

dust

ry,

wou

ld t

here

fore

con

stitu

te a

ver

y un

desi

rabl

e in

trusi

on o

n th

e co

mm

erci

al a

ctiv

ities

and

inde

pend

ence

160

of t

hese

com

pani

es a

nd c

ould

ser

ious

ly u

nder

min

e th

e pr

oper

and

co

mpe

titiv

e w

orki

ng o

f the

UK

oil

mar

ket.

Fo

od a

nd D

rink

Fo

od a

nd D

rink

Fede

ratio

n

Food

and

Drin

k in

dust

ry

A

fter d

ue c

onsi

dera

tion,

the

Food

and

Drin

k Fe

dera

tion

(whi

ch

repr

esen

ts th

e in

tere

sts t

he in

tere

sts o

f the

UK

food

and

drin

k m

anuf

actu

ring

indu

stry

) firm

ly b

elie

ves t

hat t

he fo

od a

nd d

rink

indu

stry

shou

ld b

e lis

ted

as a

“C

ateg

ory

2 R

espo

nder

”.

The

indu

stry

pla

ys a

key

, stra

tegi

c an

d vi

tal r

ole

in th

e U

K E

cono

my

and

“Cat

egor

y 1

Res

pond

ers”

nee

d to

be

awar

e of

the

“Em

erge

ncy”

im

pact

s on

the

indu

stry

. The

“Th

ree

day

Wee

k” p

ower

supp

ly

disp

utes

in th

e ea

rly 1

970’

s, th

e in

dust

rial d

ispu

tes i

nvol

ving

stee

l w

orke

rs a

nd lo

rry

driv

ers i

n th

e ea

rly 1

980’

s, an

d th

e m

ore

rece

nt

Fuel

blo

ckad

es h

ave

clea

rly d

emon

stra

ted

this

. M

edia

O

ffic

e of

Tel

ecom

mun

icat

ions

Bro

adca

ster

s (if

incl

uded

at a

ll)

…

if [b

road

cast

ers]

wer

e to

be

incl

uded

, it w

ould

be

mor

e ap

prop

riate

to

incl

ude

them

in th

e ‘C

ateg

ory

2 R

espo

nder

’ lis

t alo

ng w

ith th

e ut

ilitie

s and

tele

com

mun

icat

ions

firm

s.

How

ever

, und

er th

e Se

ctio

n 10

of t

he B

road

cast

ing

Act

199

0, th

ere

are

alre

ady

prov

isio

ns fr

om th

e di

rect

ion

of b

road

cast

ers t

o br

oadc

ast

spec

ific

anno

unce

men

ts o

r to

refr

ain

from

bro

adca

stin

g sp

ecifi

c m

atte

r… T

his e

xist

ing

oblig

atio

n m

eets

mos

t of t

he re

quire

men

ts th

at

the

new

Bill

wou

ld re

quire

of b

road

cast

ers w

ere

they

to b

ecom

e C

ateg

ory

2 re

spon

ders

. B

BC

N

eith

er

You

may

wel

l kno

w th

at se

nior

BB

C E

xecu

tives

hav

e be

en w

orki

ng

with

Cab

inet

Off

icia

ls fo

r som

e tim

e on

UK

Civ

il C

ontin

genc

y M

atte

rs.

As a

resu

lt of

thes

e m

eetin

gs, i

t was

dec

ided

that

the

BB

C w

ould

not

be

incl

uded

in th

e cu

rren

t leg

isla

tion.

Inst

ead,

we

have

set u

p a

netw

ork

of c

onta

cts b

etw

een

all B

BC

loca

l rad

io st

atio

ns a

nd lo

cal

emer

genc

y pl

anne

rs to

exc

hang

e in

form

atio

n in

the

even

t of a

n em

erge

ncy.

We

will

of c

ours

e br

oadc

ast a

dvic

e an

d in

stru

ctio

n to

lo

cal a

nd n

atio

nal a

udie

nces

as n

eede

d, sh

ould

a se

rious

inci

dent

oc

cur.

161

Appe

ndix

11: S

umm

ary

of A

men

dmen

ts S

ugge

sted

by

Res

pond

ents

to th

e G

over

nmen

t’s C

onsu

ltatio

n Ex

ercis

e Sc

hedu

le o

f Am

endm

ents

Sug

gest

ed B

y R

espo

nden

ts to

the

Con

sulta

tion

Exe

rcis

e

Cla

use

Ori

gina

l Tex

t C

hang

e/ C

omm

ent

Sour

ce

PA

RT

1 –

LO

CA

L

AR

RA

NG

ME

NT

S

1 M

eani

ng o

f E

mer

genc

y Th

e de

finiti

on a

s it

stan

ds d

oes

not i

nclu

de a

n el

emen

t of s

cale

and

cou

ld th

eref

ore

appl

y to

a re

lativ

ely

min

or

road

traf

fic a

ccid

ent o

r sm

all f

ire. C

ould

incl

ude

the

phra

se fo

und

in D

ealin

g w

ith D

isas

ter,

“… o

n su

ch a

sca

le

that

the

effe

cts

cann

ot b

e de

alt w

ith b

y th

e em

erge

ncy

serv

ices

, loc

al a

utho

ritie

s an

d ot

her o

rgan

isat

ions

as

part

of th

eir n

orm

al d

ay-to

-day

act

iviti

es.”

Roy

al B

orou

gh o

f Ken

sing

ton

and

Che

lsea

, CC

EV

31,

que

stio

n 1

At

the

core

of

an e

mer

genc

y is

the

dis

rupt

ion

to t

he c

omm

unity

of

vita

l es

sent

ials

. Thi

s sh

ould

rem

ain

the

touc

hsto

ne o

f any

mod

ern

defin

ition

. Li

berty

, JC

EV

14,

par

a 13

The

defin

ition

is a

cum

bers

ome

blen

d of

the

gene

ral a

nd th

e sp

ecifi

c, w

hich

runs

the

risk

of le

avin

g un

inte

nded

lo

opho

les

only

to b

e di

scov

ered

in a

fut

ure

cour

t cas

e. T

he s

impl

e, s

ingl

e pa

ragr

aph

defin

ition

fro

m D

ealin

g w

ith D

isas

ter

is p

erfe

ctly

ade

quat

e. W

e ca

n th

ink

of n

o si

tuat

ion,

list

ed in

the

Bill

’s d

efin

ition

, whi

ch it

cou

ld

not b

e de

emed

to c

over

.

Nat

iona

l Cou

ncil

for C

ivil

Prot

ectio

n, C

C E

V 7

6 , q

uest

ion

1

Ther

e ne

eds

to b

e a

‘de

min

imis

’ de

finiti

on o

f an

em

erge

ncy

– a

trigg

er le

vel o

r th

resh

old

belo

w w

hich

loca

l au

thor

ities

, as

Cat

egor

y 1

resp

onde

rs, w

ould

not

be

expe

cted

to r

espo

nd (

such

as

the

decl

arat

ion

of a

maj

or

inci

dent

. Th

ere

is n

o in

dica

tion

of w

hat

scal

e of

inc

iden

t w

ould

trig

ger

the

invo

lvem

ent

of t

he R

egio

nal

Res

ilien

ce C

omm

ittee

s.

LGA

, JC

EV

10,

par

a 3.

1.2

and

3.1.

3

The

defin

ition

of a

n em

erge

ncy

is m

argi

nally

diff

eren

t dep

endi

ng w

hich

par

t of t

he d

raft

Bill

one

read

s [c

laus

es

1 an

d 17

]. It

is h

oped

that

a c

omm

on d

efin

ition

cou

ld b

e ar

rived

at.

D

r Rod

ney

Day

, Uni

vers

ity o

f H

ertfo

rdsh

ire, C

C E

V 1

8, p

ara

2

Th

e us

e of

‘ser

ious

thre

at’ i

n 1(

1) a

nd ‘t

hrea

t’ in

the

follo

win

g fo

ur c

laus

es is

con

fusi

ng. T

he sa

me

term

s sho

uld

be u

sed

thro

ugho

ut. T

his i

s als

o th

e ca

se in

17

(1) (

2) (3

) (4)

Se

dgem

oor D

istri

ct C

ounc

il, C

C

EV 6

6, q

uest

ion

1

Th

e de

finiti

on o

f em

erge

ncy

need

s to

stat

e “e

ither

nat

ural

or m

anm

ade”

. D

udle

y M

etro

polit

an B

orou

gh

Cou

ncil,

CC

EV

47,

que

stio

n 1

Con

tinge

ncy

for s

ea e

mer

genc

ies a

nd th

e im

pact

of s

ea d

efen

ce b

reac

hes h

as b

een

omitt

ed.

Rot

her D

istri

ct C

ounc

il, C

C E

V

97, p

ara

1

In

clud

e a

refe

renc

e to

off

-sho

re m

arin

e in

cide

nts,

as th

ey a

re c

urre

ntly

exc

lude

d by

the

wor

ding

‘in

Engl

and

and

Wal

es’.

Ken

t and

Med

way

Tow

n Fi

re

Aut

horit

y, C

C E

V 4

0, q

uest

ion

1

Th

e te

rmin

olog

y us

ed w

ithin

the

Bill

diff

ers

from

tha

t no

rmal

ly a

ssoc

iate

d w

ith t

he f

ield

of

disa

ster

U

K A

dvis

ory

Com

mitt

ee fo

r

162

man

agem

ent.

The

Bill

refe

rs to

em

erge

ncie

s and

resi

lienc

e, w

here

as th

e m

ore

norm

ally

acc

epte

d te

rmin

olog

y in

th

is fi

eld

of s

tudy

is c

once

rned

with

dis

aste

r, vu

lner

abili

ty a

nd ri

sk. I

t is

norm

ally

con

side

red

that

a d

isas

ter i

s a

resu

lt of

the

conj

unct

ion

of a

haz

ard

with

a v

ulne

rabl

e ta

rget

. The

con

cept

of a

n em

erge

ncy

as d

istin

ct fr

om a

di

sast

er o

mits

the

cent

ral r

ole

of v

ulne

rabi

lity.

It

wou

ld b

e ne

cess

ary

to d

efin

e di

ffer

ent l

evel

s of

em

erge

ncie

s in

rel

atio

n to

the

diff

eren

t tie

rs o

f go

vern

men

t an

d th

eir c

apab

ilitie

s i.e

. mun

icip

al, r

egio

nal a

nd n

atio

nal a

utho

ritie

s ha

ve th

e ab

ilitie

s to

dea

l with

em

erge

ncie

s of

incr

easi

ng se

verit

y.

Nat

ural

Dis

aste

r Red

uctio

n, C

C

EV 1

56, p

ara

1 an

d qu

estio

n 1

1 (1

) “e

mer

genc

y” m

eans

an

eve

nt o

r situ

atio

n w

hich

pre

sent

s a

serio

us th

reat

to -

Als

o in

clud

e a

spec

ific

thre

at to

Par

liam

ent.

Phili

p B

osto

ck, E

xete

r City

C

ounc

il, C

C E

V 1

3, q

uest

ion

1

The

subj

ectiv

e se

rious

ness

req

uire

men

t is

an

insu

ffic

ient

saf

egua

rd a

gain

st m

isus

e. A

lthou

gh t

hrea

ts t

o th

e w

elfa

re o

f th

e po

pula

tion,

the

env

ironm

ent

and

polit

ical

/ ad

min

istra

tive/

eco

nom

ic s

tabi

lity

are

defin

ed,

serio

usne

ss is

not

.

Libe

rty, J

C E

V 1

4, p

ara

16

1 (1

)(a)

hu

man

wel

fare

in a

pl

ace

in E

ngla

nd o

r W

ales

Def

ine

wha

t is m

eant

by

“in

a pl

ace”

and

“of

a p

lace

” th

roug

hout

1 (1

) (a)

to (d

). Th

ere

need

s to

be c

larit

y as

to

wha

t thi

s mea

ns, p

artic

ular

ly in

rela

tion

to U

K w

ater

s. Es

sex

Aut

horit

ies,

CC

EV

14,

par

t 2,

que

stio

n 1

Nor

folk

Loc

al A

utho

rity,

CC

EV

96

, que

stio

n 1

1 (1

)(c)

th

e po

litic

al,

adm

inis

trativ

e or

ec

onom

ic st

abili

ty o

f a

plac

e in

Eng

land

or

Wal

es

Thes

e sh

ould

rela

te o

nly

to th

ose

inst

ance

s whe

re th

ere

is a

lso

a th

reat

to h

uman

wel

fare

. Em

erge

ncy

Plan

ning

Soc

iety

, JC

EV

12,

par

t 2, q

uest

ion

1

1 (2

)(b)

…

an

even

t or

situ

atio

n pr

esen

ts a

th

reat

to h

uman

w

elfa

re o

nly

if it

invo

lves

, cau

ses o

r m

ay c

ause

(b) h

uman

ill

ness

or i

njur

y

This

sho

uld

read

‘hu

man

inca

paci

tatio

n, il

lnes

s an

d in

jury

’. Th

is s

houl

d al

so b

e am

ende

d in

Par

t 2, c

laus

e 17

(2

)(b)

. D

r G P

ears

on, C

C E

V 9

0, p

ara

8

1 (2

)(c)

…

an

even

t or

situ

atio

n pr

esen

ts a

th

reat

to h

uman

w

elfa

re o

nly

if it

invo

lves

, cau

ses o

r

The

term

‘dis

plac

ed p

erso

ns’ m

ight

be

bette

r to

capt

ure

wha

t is

inte

nded

. The

term

‘hom

eles

snes

s’ in

dica

tes

a de

gree

of

perm

anen

cy in

a p

erso

n’s

situ

atio

n (w

hich

may

not

be

the

case

in a

n em

erge

ncy

whe

n pe

ople

are

m

ore

likel

y to

be

mov

ed fr

om th

eir h

omes

as a

n in

terim

mea

sure

).

Sedg

emoo

r Dis

trict

Cou

ncil,

CC

EV

66,

que

stio

n 1

163

may

cau

se –

(c)

hom

eles

snes

s

W

hils

t eve

nts

whi

ch m

ay c

ause

hom

eles

snes

s or

dis

rupt

ion

of fo

od s

uppl

y, c

omm

unic

atio

n sy

stem

s, tra

nspo

rt fa

cilit

ies o

r edu

catio

nal s

ervi

ces a

re se

rious

mat

ters

, the

y do

not

nec

essa

rily

cons

titut

e a

thre

at to

pub

lic w

elfa

re.

Libe

rty, J

C E

V 1

4, p

ara

18

1 (2

)(e)

…

an

even

t or

situ

atio

n pr

esen

ts a

th

reat

to h

uman

w

elfa

re o

nly

if it

invo

lves

, cau

ses o

r m

ay c

ause

– (e

) di

srup

tion

of a

supp

ly

of fo

od, w

ater

, en

ergy

, fue

l or

anot

her e

ssen

tial

com

mod

ity

The

Bill

ext

ends

the

defin

ition

to in

clud

e m

ajor

dis

rupt

ions

of

ener

gy. T

he e

nerg

y in

dust

ries

have

for

man

y ye

ars

mai

ntai

ned

thei

r ow

n co

ntin

genc

y pl

anni

ng f

or e

mer

genc

ies,

whi

ch a

re g

over

ned

by t

he r

elev

ant

legi

slat

ion

and

regu

lato

ry l

icen

ses.

Ther

e is

a d

istin

ctio

n to

be

draw

n be

twee

n em

erge

ncie

s w

here

los

s of

el

ectri

city

sup

ply

is a

rel

evan

t pa

rt bu

t no

t th

e pr

imar

y pr

oble

m a

nd t

hose

tha

t ar

e pr

imar

ily o

ne o

f lo

ss o

f su

pply

.

CE

Elec

tric

UK

, CC

EV

81,

qu

estio

n 1

1(2)

(h)

… d

isru

ptio

n of

m

edic

al, e

duca

tiona

l or

oth

er e

ssen

tial

serv

ices

Educ

atio

nal

serv

ices

are

not

reg

arde

d as

‘es

sent

ial’

in i

nter

natio

nal

labo

ur l

aw.

The

term

‘ot

her

esse

ntia

l se

rvic

es’,

parti

cula

rly a

s it

follo

ws

this

non

-ess

entia

l ser

vice

, is

diff

icul

t to

inte

rpre

t. Th

e In

tern

atio

nal L

abou

r O

rgan

isat

ions

(IL

O)

defin

es e

ssen

tial

serv

ices

as

thos

e w

hose

int

erru

ptio

n w

ould

thr

eate

n th

e lif

e, p

erso

nal

safe

ty o

r he

alth

of

the

who

le o

r pa

rt of

the

pop

ulat

ion.

If

som

e fo

rm o

f ex

tend

ing

prov

isio

n is

req

uire

d in

cl

ause

s 1(2

)(h)

and

1(2

)(e)

this

wou

ld b

e an

app

ropr

iate

def

initi

on to

ado

pt.

Prof

esso

r G M

orris

, JC

EV

5, p

ara

I

1 (3

) Fo

r the

pur

pose

s of

subs

ectio

n (1

)(b)

an

even

t or s

ituat

ion

pres

ents

a th

reat

to

the

envi

ronm

ent,

if…

This

app

ears

to

allo

w a

n em

erge

ncy

to b

e de

clar

ed i

f th

ere

is a

thr

eat

to p

lant

life

. Thi

s m

ay b

e se

en a

s a

redu

ctio

n in

civ

il lib

ertie

s by

thos

e w

ho fe

el th

at th

ey h

ave

a le

gitim

ate

right

to ta

ke a

ctio

n ag

ains

t GM

cro

ps.

This

is h

ardl

y a

thre

at to

the

natio

nal i

nter

est b

ut a

form

of c

ivil

prot

est b

est d

ealt

with

und

er th

e cr

imin

al la

w.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

ara

5

Giv

ing

the

lang

uage

of

this

cla

use

its n

atur

al a

nd o

rdin

ary

mea

ning

, em

erge

ncy

pow

ers

unde

r th

e B

ill c

ould

pl

ausi

bly

be tr

igge

red

by a

viru

lent

stra

in b

y D

utch

Elm

Dis

ease

. JU

STIC

E, JC

EV

15, p

ara

12

Incl

ude

‘land

subs

iden

ce’ i

n en

viro

nmen

tal t

hrea

t lis

t. A

run

Dis

trict

Cou

ncil,

CC

EV

110

, qu

estio

n 1

1 (3

) (a

) (ii)

..

an e

vent

or

situ

atio

n pr

esen

ts a

th

reat

to th

e en

viro

nmen

t if,

in

parti

cula

r, it

invo

lves

, ca

uses

or m

ay c

ause

(a

) con

tam

inat

ion

of

This

def

initi

on o

f oi

l w

ould

app

ear

to b

e un

nece

ssar

ily r

estri

ctiv

e as

it

wou

ld o

nly

appl

y to

tho

se r

efin

ed

prod

ucts

that

are

use

d as

a fu

el in

larg

e po

wer

pla

nts.

In re

ality

, a th

reat

to th

e en

viro

nmen

t may

aris

e fr

om a

sp

ill o

f any

type

of o

il an

d fr

om a

ny s

ourc

e. A

bro

ader

def

initi

on to

cov

er a

ll ev

entu

aliti

es w

ould

be

prov

ided

by

rep

laci

ng “

fuel

oils

” w

ith “

oil”

or

with

“oi

l and

its

deriv

ativ

es”.

Thi

s de

finiti

on is

use

d in

oth

er le

gisl

atio

n (S

.153

Mer

chan

t Shi

ppin

g A

ct 1

995)

.

Inte

rnat

iona

l Tan

ker O

wne

rs

Pollu

tion

Fede

ratio

n Li

mite

d, C

C

EV 2

1, p

ara

3.8

164

land

, wat

er o

r air

with

(ii)

fuel

oils

Th

is is

a p

oten

tial l

ooph

ole,

whi

ch ra

ises

the

ques

tion

of th

e st

atus

of o

ther

oils

, suc

h as

lubr

icat

ing

oils

and

ed

ible

oils

. A

lthou

gh it

is p

roba

bly

impl

icit

that

the

Bill

app

lies t

o th

e U

K’s

terr

itoria

l wat

ers,

ther

e is

no

spec

ific

refe

renc

e to

seaw

ater

.

Nat

iona

l Cou

ncil

for C

ivil

Prot

ectio

n, C

C E

V 7

6, q

uest

ion

1

The

who

le su

bsec

tion

of 1

(3)(

a) sh

ould

be

rew

orde

d to

read

“…

cau

ses o

r may

cau

se c

onta

min

atio

n of

land

, w

ater

or a

ir w

ith su

bsta

nces

, mat

eria

ls o

r arti

cles

that

are

har

mfu

l to

hum

an, a

nim

al o

r pla

nt li

fe”

The

defin

ition

of t

he w

ord

‘wat

er’ n

eeds

cla

rific

atio

n be

caus

e of

the

impl

icat

ions

rela

ting

to lo

cal a

utho

ritie

s an

d sh

orel

ine

clea

n up

, for

whi

ch th

ere

is n

o ex

istin

g st

atut

ory

resp

onsi

bilit

y bu

t whi

ch c

ould

com

e ou

t of t

his

para

grap

h.

Glo

uces

ters

hire

Cou

nty

Cou

ncil

Fire

and

Res

cue

Serv

ice,

CC

EV

71

, que

stio

n 1

‘Wat

er’ s

houl

d in

clud

e al

l wat

er, i

nclu

ding

rive

rine,

est

uaria

l and

seaw

ater

. B

risto

l City

Cou

ncil,

CC

EV

69,

qu

estio

n 1

Shire

dis

trict

s sho

uld

also

hav

e a

corr

espo

ndin

g du

ty to

pla

n fo

r, tra

in a

nd c

ondu

ct sh

orel

ine

clea

n up

. Por

ts a

nd

Har

bour

s ha

ve a

sta

tuto

ry d

uty

unde

r th

ese

circ

umst

ance

s an

d sh

ould

be

prop

erly

fun

ded

to c

arry

out

the

se

func

tions

eff

ectiv

ely.

Phili

p B

osto

ck, E

xete

r City

C

ounc

il, C

C E

V 1

3, q

uest

ion

1

1 (3

)(b)

..

an e

vent

or

situ

atio

n pr

esen

ts a

th

reat

to th

e en

viro

nmen

t if,

in

parti

cula

r, it

invo

lves

, ca

uses

or m

ay c

ause

–

(b) f

lood

ing

Afte

r the

wor

d ‘f

lood

ing’

ther

e sh

ould

be

som

e re

fere

nce

to ‘d

roug

ht’.

Glo

uces

ters

hire

Cou

nty

Cou

ncil

Fire

and

Res

cue

Serv

ice,

CC

EV

71

, que

stio

n 1

1 (4

) A

n ev

ent o

r situ

atio

n pr

esen

ts a

thre

at to

po

litic

al,

adm

inis

tratio

n or

ec

onom

ic st

abili

ty if

, in

par

ticul

ar, i

t in

volv

es, c

ause

s or

may

cau

se –

Ther

e is

no

atte

mpt

to

dist

ingu

ish

betw

een

esse

ntia

l an

d no

n-es

sent

ial

func

tions

in

rela

tion

to w

hat

may

co

nstit

ute

thre

ats t

o ‘p

oliti

cal,

adm

inis

trativ

e or

eco

nom

ic st

abili

ty’ a

s def

ined

in c

laus

e 1(

4). A

serio

us th

reat

of

disr

uptio

n to

a n

on-e

ssen

tial G

over

nmen

t act

ivity

or p

ublic

func

tion

wou

ld b

e w

ithin

the

defin

ition

. No

acco

unt

is ta

ken

of th

e du

ratio

n of

the

disr

uptio

n, w

hich

may

be

an im

porta

nt fa

ctor

whe

n co

nsid

erin

g w

heth

er in

dust

rial

actio

n oc

casi

ons a

n em

erge

ncy.

Prof

esso

r G M

orris

, JC

EV

5, p

ara

I

1 (4

)(c)

(c

) the

act

iviti

es o

f ba

nks o

r oth

er

finan

cial

inst

itutio

ns

This

see

ms

to n

egle

ct t

he e

cono

mic

im

pact

of

an e

mer

genc

y up

on m

anuf

actu

ring

or s

ervi

ce i

ndus

tries

. In

ex

trem

e ca

ses

this

mig

ht h

ave

a sh

ort-t

erm

influ

ence

on

GD

P. T

his

coul

d be

rec

ogni

sed

by th

e in

clus

ion

of a

su

b-se

ctio

n “4

(d) t

he w

ides

prea

d or

pro

long

ed d

isru

ptio

n of

key

man

ufac

turin

g or

ser

vice

indu

strie

s’. T

his

also

Uni

ted

Util

ities

, CC

EV

73,

qu

estio

n 1

165

appl

ies t

o cl

ause

17(

4).

Con

side

ratio

n sh

ould

be

give

n to

a w

ider

def

initi

on o

f eco

nom

ic s

tabi

lity,

incl

udin

g th

e cr

itica

l rol

e of

indu

stry

an

d co

mm

erce

, esp

ecia

lly g

iven

the

impo

rtanc

e la

ter p

lace

d up

on b

usin

esse

s’ c

ontin

uity

man

agem

ent.

Dr R

odne

y D

ay, U

nive

rsity

of

Her

tford

shire

, CC

EV

18,

par

a 3

The

defin

ition

mus

t inc

lude

thre

ats

to p

rodu

ctiv

e in

dust

ries

othe

r th

an b

anks

and

fin

anci

al in

stitu

tions

. The

re

mus

t be

refe

renc

es to

the

Bus

ines

s C

ontin

uity

for a

ll bu

sine

ss e

nter

pris

es, w

heth

er n

atio

nally

or i

nter

natio

nally

ow

ned

and

thre

ats t

o th

e fo

reig

n di

rect

inve

stm

ent s

ecto

r.

Mr A

Hob

bs, C

C E

V 9

4, p

ara

9

This

cla

use

shou

ld in

clud

e re

fere

nce

to o

ther

crit

ical

eco

nom

ic a

ctiv

ities

suc

h as

man

ufac

turin

g, lo

gist

ics

and

ener

gy p

rodu

ctio

n, in

clud

ing

oil a

nd g

as.

Link

Ass

ocia

tes I

nter

natio

nal,

CC

EV

129

, que

stio

n 1

2 D

uty

to a

sses

s, pl

an

and

advi

se

Loca

l fac

tors

real

istic

ally

mea

n th

at e

ach

loca

l are

a ha

s th

eir o

wn

set o

f ris

ks, w

hich

hav

e th

eir o

wn

emer

genc

y im

plic

atio

ns. H

ow m

uch

loca

l lat

itude

is p

erm

itted

? W

est D

evon

Ray

net,

CC

EV

54,

ch

apte

r 4

2 (1

)(a)

A

per

son

or b

ody

liste

d in

Par

t 1 o

f Sc

hedu

le 1

shal

l – (a

) fr

om ti

me

to ti

me

asse

ss th

e ris

k of

an

emer

genc

y oc

curr

ing

Ris

k as

sess

men

t and

risk

pre

vent

ion

are

not p

art o

f the

em

erge

ncy

plan

ning

role

. Em

erge

ncy

plan

ners

mus

t tak

e no

te o

f the

pot

entia

l haz

ards

whi

ch m

ay g

ive

rise

to a

n em

erge

ncy,

but

thei

r who

le ra

ison

-d’e

tre

is to

hav

e pl

ans i

n pl

ace

to d

eal w

ith e

mer

genc

ies w

hich

occ

ur d

espi

te th

e be

st e

ffor

ts a

t ris

k as

sess

men

t and

risk

pr

even

tion

of a

who

le ra

nge

of o

ther

regu

lato

ry a

nd e

nfor

cem

ent b

odie

s. It

is n

ot a

ppro

pria

te fo

r em

erge

ncy

plan

ners

, with

no

tech

nica

l exp

ertis

e, to

atte

mpt

to se

cond

gue

ss th

ese

bodi

es.

If w

hat i

s mea

nt is

‘haz

ard

iden

tific

atio

n’, r

athe

r tha

n ris

k as

sess

men

t, th

en it

is re

ason

able

that

this

shou

ld b

e le

ft in

. If r

isk

asse

ssm

ent i

s ret

aine

d, it

mus

t be

mad

e cl

ear t

hat o

rgan

isat

ions

are

onl

y re

spon

sibl

e fo

r ass

essi

ng

risks

whi

ch fa

ll w

ithin

thei

r deg

ree

of c

ompe

tenc

e, so

that

they

are

not

exp

osed

to in

appr

opria

te c

laim

s of

liabi

lity.

Nat

iona

l Cou

ncil

for C

ivil

Prot

ectio

n, C

C E

V 7

6, q

uest

ion

2

To a

void

con

fusi

on, t

he te

rmin

olog

y sh

ould

be

chan

ged,

from

‘ris

k as

sess

men

t’/ ‘r

isk

man

agem

ent’

to ‘h

azar

d an

alys

is.

LGA

, JC

EV

10,

par

a 3.

2.2

2 (1

)(c)

A

per

son

or b

ody

liste

d in

Par

t 1 o

f Sc

hedu

le 1

shal

l –

(1)(

c) m

aint

ain

plan

s fo

r the

pur

pose

of

ensu

ring,

so fa

r as i

s re

ason

able

pr

actic

able

, tha

t if a

n em

erge

ncy

occu

rs th

e pe

rson

or b

ody

is

able

to c

ontin

ue to

pe

rfor

m h

is o

r its

fu

nctio

ns

The

stor

ms

of O

ctob

er 2

002

and

the

loss

of e

lect

ricity

to la

rge

num

bers

of t

he m

embe

rs o

f the

pub

lic fo

r up

to

seve

n da

ys i

n G

louc

este

rshi

re i

s a

prim

e ex

ampl

e of

why

thi

s du

ty s

houl

d al

so b

e pl

aced

upo

n C

ateg

ory

2 re

spon

ders

. If u

tiliti

es c

ompa

nies

in p

artic

ular

do

not h

ave

this

dut

y im

pose

d it

may

be

impo

ssib

le fo

r Cat

egor

y 1

resp

onde

rs to

pla

n ef

fect

ivel

y to

com

ply

with

the

duty

pla

ced

upon

them

.

Glo

uces

ters

hire

Cou

nty

Cou

ncil

Fire

and

Res

cue

Serv

ice,

CC

EV

71

, que

stio

n 2

This

dut

y sh

ould

app

ly m

ore

wid

ely

to C

ateg

ory

2 re

spon

ders

. It

is r

ecog

nise

d th

at m

ost

larg

e bu

sine

sses

Lo

ndon

Bor

ough

of R

ichm

ond

166

empl

oy th

eir o

wn

Bus

ines

s Con

tinui

ty e

xper

ts. T

he te

rm “

busi

ness

” sh

ould

be

defin

ed.

upon

Tha

mes

, CC

EV

61,

que

stio

n 2

2 (1)(

d)(i

)

[Cat

egor

y 1

Res

pond

ers s

hall]

m

aint

ain

plan

s for

the

purp

ose

of e

nsur

ing

that

if a

n em

erge

ncy

occu

rs o

r is l

ikel

y to

oc

cur t

he p

erso

n or

bo

dy is

abl

e to

pe

rfor

m h

is o

r its

fu

nctio

ns so

far a

s ne

cess

ary

or

desi

rabl

e fo

r the

pu

rpos

e of

– (i

) pr

even

ting

the

emer

genc

y

This

par

agra

ph s

houl

d be

rem

oved

. The

abi

lity

to m

itiga

te is

alre

ady

in th

e B

ill a

nd th

is is

mor

e ac

hiev

able

. D

urin

g th

e re

view

of

Emer

genc

y Pl

anni

ng C

onsu

ltatio

n m

any

resp

onde

rs f

elt t

hat i

t was

impo

ssib

le f

or lo

cal

auth

oriti

es to

pre

vent

em

erge

ncie

s, pa

rticu

larly

thos

e st

artin

g ou

tsid

e th

eir a

rea.

Th

e du

ty to

‘pre

vent

’ sho

uld

be re

mov

ed.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

ara

6

Nat

iona

l Cou

ncil

for C

ivil

Prot

ectio

n, C

C E

V 7

6, q

uest

ion

2

The

use

of t

he w

ord

‘pre

vent

ion’

in

rela

tion

to c

ivil

prot

ectio

n su

gges

ts t

hat

emer

genc

ies

are

som

ehow

‘p

reve

ntab

le’.

A m

ore

usef

ul w

ord

to u

se m

ight

be

‘miti

gatio

n’,

whi

ch i

mpl

ies

a pr

oces

s of

haz

ard

iden

tific

atio

n, ri

sk a

sses

smen

t and

pla

nnin

g.

Leed

s City

Cou

ncil,

CC

EV

55,

pa

ra 7

and

Ric

hard

Dav

ies,

Leed

s C

ity C

ounc

il, o

ral e

vide

nce

sess

ion,

9th

Sep

tem

ber 2

003

(PM

)

R

isk

asse

ssm

ent a

nd ri

sk p

reve

ntio

n ar

e ca

tego

ries b

est l

eft t

o pr

ofes

sion

al o

rgan

isat

ions

that

are

com

pete

nt a

nd

inst

ruct

ed in

thei

r app

roac

h –

for i

nsta

nce

the

HSE

and

Env

ironm

ent A

genc

y. G

ener

ic e

mer

genc

y pl

anne

rs a

re

not g

ener

ally

qua

lifie

d fo

r thi

s rol

e.

Bre

nt C

ounc

il, C

C E

V 6

8, q

uest

ion

2

It is

diff

icul

t to

see

how

a u

nita

ry a

utho

rity,

usu

ally

act

ing

in s

uppo

rt to

the

emer

genc

y se

rvic

es, c

an ro

utin

ely

‘pre

vent

’ em

erge

ncie

s. Th

e B

ill s

houl

d cl

arify

that

this

resp

onsi

bilit

y to

‘pre

vent

’ res

ts w

here

ther

e is

cur

rent

ly

a fu

nctio

n (th

ere

is n

o fu

nctio

n on

Em

erge

ncy

Plan

ning

Ser

vice

s of

loc

al a

utho

ritie

s, al

thou

gh o

ther

de

partm

ents

, suc

h as

Hig

hway

s, m

ay h

ave

such

a ro

le).

Bris

tol C

ity C

ounc

il, C

C E

V 6

9,

ques

tion

2

2 (1

)(f)

[C

ateg

ory

1 R

espo

nder

s sha

ll]

arra

nge

for t

he

publ

icat

ion

of a

ll or

pa

rt of

ass

essm

ents

m

ade

and

plan

s m

aint

aine

d

This

is c

ontra

ry to

rece

nt S

ecur

ity S

ervi

ces a

dvic

e ag

ains

t the

pub

licat

ion

of a

ny p

lans

that

wou

ld b

e of

use

to a

te

rror

ist s

uch

as th

e Pi

pelin

e Sa

fety

Pla

ns. T

his n

eeds

re-w

ordi

ng to

take

acc

ount

of t

his s

ecur

ity a

dvic

e.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

ara

7

Ther

e is

the

pote

ntia

l for

sec

urity

to b

e co

mpr

omis

ed th

roug

h th

e pu

blic

atio

n of

info

rmat

ion

rela

ting

to s

peci

fic

AC

PO, C

C E

V 9

8, q

uest

ion

2

167

site

s. It

is s

ugge

sted

that

cle

ar g

uida

nce

be g

iven

in th

e no

tes

to e

nsur

e th

at d

ue d

ilige

nce

is e

xerc

ised

by

site

ow

ners

and

oth

er re

spon

ders

who

may

hav

e a

plan

ning

resp

onsi

bilit

y, so

that

ther

e is

no

pote

ntia

l for

secu

rity

to

be b

reac

hed

by th

e pu

blic

atio

n of

sens

itive

info

rmat

ion.

2

(1)(

g)

[Cat

egor

y 1

Res

pond

ers s

hall]

m

aint

ain

arra

ngem

ents

to w

arn

the

publ

ic, a

nd to

pr

ovid

e ap

prop

riate

ad

vice

to th

e pu

blic

Thes

e du

ties

shou

ld n

ot b

e pl

aced

upo

n ea

ch C

ateg

ory

1 re

spon

ders

, bu

t th

ere

shou

ld b

e a

colle

ctiv

e re

spon

sibi

lity

to e

nsur

e th

at su

ch a

rran

gem

ents

are

in p

lace

in th

at lo

calit

y. A

t fix

ed si

tes,

the

oper

ator

shou

ld b

e re

spon

sibl

e fo

r pub

lic w

arni

ngs,

for f

lood

ing

it sh

ould

be

the

Envi

ronm

ent A

genc

y, fo

r sev

ere

wea

ther

war

ning

s it

shou

ld b

e th

e M

et o

ffic

e, a

nd f

or m

obile

em

erge

ncie

s (c

hem

ical

leak

s fr

om r

oad

tank

ers)

it s

houl

d be

the

polic

e.

AC

PO, C

C E

V 9

8, q

uest

ion

2

Shou

ld b

e am

ende

d to

: “m

aint

ain

appr

opri

ate

arra

ngem

ents

to

war

n th

e pu

blic

, an

d to

pro

vide

app

ropr

iate

ad

vice

to th

e pu

blic

, if a

n em

erge

ncy

is li

kely

to o

ccur

or h

as o

ccur

red.

” B

T, C

C E

V 1

02, p

ara

I, d

Cen

tral

Gov

ernm

ent

shou

ld e

stab

lish

the

polic

y an

d ta

ke t

he l

ead

on t

his

very

im

porta

nt i

ssue

. A

nat

iona

l pr

ogra

mm

e to

edu

cate

the

publ

ic in

thes

e m

atte

rs is

long

ove

rdue

. N

atio

nal C

ounc

il fo

r Civ

il Pr

otec

tion,

CC

EV

76,

que

stio

n 2

This

will

nee

d to

be

supp

orte

d by

ext

ra c

entra

l fun

ding

whi

ch e

xpla

nato

ry n

otes

els

ewhe

re m

ake

clea

r will

not

be

ava

ilabl

e.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

ara

8 2

(2)

A M

inis

ter o

f the

C

row

n m

ay m

ake

regu

latio

ns a

bout

-

Reg

ulat

ions

, and

the

adv

ice

need

ed t

o su

ppor

t th

e di

ffer

ent

sect

ions

and

pow

ers

cont

aine

d in

the

dra

ft B

ill,

shou

ld r

ecei

ve w

ide

publ

ic c

onsu

ltatio

n pr

ior

to b

eing

pas

sed

by P

arlia

men

t. A

ll or

gani

satio

ns a

nd p

artn

ers

shou

ld b

e as

ked

to c

ontri

bute

pro

perly

and

fully

to th

e de

bate

on

thes

e is

sues

.

Nor

th W

ales

Stra

tegi

c Em

erge

ncy

Plan

ning

Gro

up, C

C E

V 2

6, p

ara

8

Onl

y ex

amin

atio

n of

any

regu

latio

ns is

sued

and

thei

r det

ail w

ill d

eter

min

e w

heth

er th

e rig

ht b

alan

ce h

as b

een

stru

ck.

It is

par

ticul

arly

im

porta

nt t

hat

a pr

oper

con

sulta

tion

mec

hani

sm i

s pu

t in

pla

ce t

hat

allo

ws

for

full

cons

ider

atio

n of

the

draf

t reg

ulat

ions

bef

ore

thei

r im

plem

enta

tion.

Cle

vela

nd E

mer

genc

y Pl

anni

ng

Uni

t, C

C E

V 5

9, q

uest

ion

4

The

Bill

will

onl

y de

liver

if th

e re

gula

tions

def

ine

stan

dard

s and

per

form

ance

man

agem

ent s

yste

ms.

C

ered

igio

n C

ount

y C

ounc

il, C

C

EV 8

5, q

uest

ion

1 2

(3)(

e)

[Reg

ulat

ions

may

] pe

rmit

or re

quire

a

coun

ty c

ounc

il to

pe

rfor

m a

dut

y un

der

subs

ectio

n (1

) on

beha

lf of

a d

istri

ct

coun

cil w

ithin

the

area

of t

he c

ount

y co

unci

l

Reg

ulat

ions

sho

uld

defin

e a

coor

dina

ting,

tra

inin

g an

d ad

vice

rol

e fo

r co

unty

cou

ncils

so

that

the

re i

s no

du

plic

atio

n of

wor

k in

thei

r are

a. T

he p

ropo

sal t

o co

ntin

ue c

ivil

defe

nce

arra

ngem

ents

so

that

cou

nty

coun

cils

ta

ke fu

ll re

spon

sibi

lity

for c

ivil

prot

ectio

n pl

anni

ng in

thei

r are

a sh

ould

be

drop

ped.

Ian

Loug

hbor

ough

, CC

EV

45,

ap

pend

ix A

3

It sh

ould

be

a no

rm th

at th

e in

terf

ace

betw

een

Cat

egor

y 1

and

2 re

spon

ders

is a

t cou

nty

leve

l, no

t at d

istri

ct

leve

l, an

d th

is s

houl

d be

refle

cted

in th

e B

ill a

s a

man

dato

ry a

rran

gem

ent,

not a

s an

opt

ion

to b

e de

cide

d la

ter

unde

r cla

use

2(3)

(e).

Wes

tern

Pow

er D

istri

butio

n, C

C

EV 6

0, p

ara

16

168

2 (3

)(g)

[R

egul

atio

ns m

ay]

perm

it or

requ

ire a

pe

rson

or b

ody

liste

d in

Par

t 1 o

r 2 o

f Sc

hedu

le 1

to

coop

erat

e, to

such

ex

tent

and

in su

ch

man

ner a

s may

be

spec

ified

, with

a

pers

on o

r bod

y lis

ted

in P

art 1

of t

he

Sche

dule

in

conn

ectio

n w

ith th

e pe

rfor

man

ce o

f a

duty

und

er su

bsec

tion

(1)

The

Cou

ncil

wou

ld u

rge

the

Gov

ernm

ent

to r

ecog

nise

spe

cific

ally

the

im

porta

nce

of e

stab

lishi

ng a

nd

mai

ntai

ning

mul

ti-ag

ency

con

tinge

ncy

plan

ning

at a

loca

l (bo

roug

h or

equ

ival

ent)

leve

l and

to a

pply

ano

ther

te

rm to

arr

ange

men

ts o

pera

ted

at c

ount

y (o

r sim

ilar)

leve

l.

Bol

ton

Met

ro C

omm

erci

al

Serv

ices

, CC

EV

95,

que

stio

n 5

Mos

t tel

ecom

bus

ines

ses h

ave

a na

tiona

l pre

senc

e an

d it

wou

ld b

e im

prac

tical

for e

ach

to b

e re

pres

ente

d at

loca

l or

eve

n re

gion

al re

silie

nce

foru

ms.

It is

sug

gest

ed th

at p

ropo

sals

be

deve

lope

d jo

intly

with

thei

r ind

ustry

bod

y,

UK

CTA

, and

thei

r reg

ulat

or O

ftel f

or a

ppro

pria

te re

pres

enta

tion.

Uni

ted

Util

ities

, CC

EV

73,

qu

estio

n 2

Mul

ti-ag

ency

arr

ange

men

ts e

xist

virt

ually

eve

ryw

here

alre

ady.

The

rule

s re

gard

ing

mem

bers

hip,

cha

irman

ship

, fr

eque

ncy

of m

eetin

gs sh

ould

, as n

ow, r

emai

n fle

xibl

e.

Nat

iona

l Cou

ncil

for C

ivil

Prot

ectio

n, C

C E

V 7

6, q

uest

ion

5 2

(3)(

h)

[Reg

ulat

ions

may

] re

quire

a p

erso

n or

bo

dy li

sted

in P

art 1

or

2 o

f Sch

edul

e 1

to

prov

ide

info

rmat

ion

on re

ques

t to

a pe

rson

or

bod

y lis

ted

in P

art

1 of

the

Sche

dule

in

conn

ectio

n w

ith th

e pe

rfor

man

ce o

f a

duty

und

er su

bsec

tion

(1)

Ther

e is

alre

ady

diff

icul

ty o

ver t

he p

rovi

sion

of s

uch

data

on

vuln

erab

le p

erso

ns b

etw

een

the

Hea

lth E

cono

my

and

loca

l aut

horit

ies

and

this

Act

is u

nlik

ely

to o

verr

ide

the

Dat

a Pr

otec

tion

Act

. Par

tner

s w

ould

stil

l be

able

to

refu

se to

supp

ly in

form

atio

n on

thos

e vu

lner

able

peo

ple

prot

ecte

d by

the

Dat

a Pr

otec

tion

Act

.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

ara

10

Reg

ulat

ions

und

er th

is c

laus

e m

ay r

equi

re C

ateg

ory

2 re

spon

ders

to p

rovi

de in

form

atio

n of

a s

ensi

tive

natu

re

from

a d

ata-

prot

ectio

n, c

omm

erci

al o

r se

curit

y pe

rspe

ctiv

e. A

lthou

gh s

afeg

uard

s in

the

cons

ulta

tion

docu

men

t ar

e no

ted,

thes

e ha

ve n

o le

gal s

tand

ing.

Thi

s nee

ds to

be

addr

esse

d.

Uni

ted

Util

ities

, CC

EV

73,

qu

estio

n 4

169

The

Bill

its

elf

(rat

her

than

reg

ulat

ions

mad

e un

der

the

Bill

) ne

eds

to p

rovi

de f

or t

he d

esig

natio

n of

cer

tain

in

form

atio

n as

con

fiden

tial a

nd fo

r a d

uty

on th

ose

in re

ceip

t of t

hat i

nfor

mat

ion

to k

eep

it co

nfid

entia

l unl

ess

othe

rwis

e ag

reed

by

the

prov

ider

.

CE

Elec

tric

UK

, CC

EV

81,

qu

estio

n 2

2 (3

)(i)

[Reg

ulat

ions

may

] pe

rmit

or re

quire

a

pers

on o

r bod

y to

pe

rfor

m a

dut

y un

der

subs

ectio

n (1

)(a)

or

(b) h

avin

g re

gard

to,

or b

y ad

optin

g or

re

lyin

g on

, wor

k un

derta

ken

by

anot

her s

peci

fied

pers

on o

r bod

y

This

doe

s no

t see

m to

mak

e an

y pr

ovis

ion

for n

on o

r poo

r pe

rfor

man

ce f

rom

par

tner

s on

who

m a

noth

er b

ody

relie

s for

dat

a/pl

ans.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

ara

11

4 A

dvic

e an

d as

sist

ance

to

busi

ness

Pote

ntia

lly, t

his

coul

d be

a re

sour

ce in

tens

ive

activ

ity a

nd a

s th

e B

ill d

oesn

’t al

low

for a

ny in

crea

se in

ove

rall

fund

ing,

thi

s m

ay m

ean

that

em

erge

ncy

plan

ning

act

ivity

has

to

be d

iver

ted

from

oth

er a

reas

of

grea

ter

impo

rtanc

e. T

he a

bilit

y to

cha

rge

for

advi

ce a

nd i

nfor

mat

ion

seem

s to

be

on a

n ad

hoc

bas

is a

nd t

his

arra

ngem

ent,

in r

ealit

y, w

ould

not

allo

w t

he p

rovi

sion

of

a qu

ality

ser

vice

. Th

ere

is a

lso

a ge

nera

l la

ck o

f ex

perti

se in

this

are

a an

d th

ere

wou

ld b

e di

ffic

ulty

in fi

lling

the

skill

s gap

in th

is a

rea.

Wig

an C

ounc

il, C

C E

V 7

2, p

ara

3

The

‘pro

mot

ion

of b

usin

ess

cont

inui

ty’ m

ust b

e de

fined

, in

the

Bill

or r

egul

atio

ns, e

ither

in te

rms

of e

xten

t or

degr

ee o

f eff

ort.

Nat

iona

l Cou

ncil

for C

ivil

Prot

ectio

n, C

C E

V 7

6, q

uest

ion

1

Th

is is

wor

ryin

gly

open

-end

ed. T

he m

anda

tory

req

uire

men

t to

prov

ide

BC

M a

dvic

e sh

ould

be

amen

ded

to a

di

scre

tiona

ry p

ower

. LG

A, J

C E

V 1

0, p

ara

3.3.

1

Not

all

agen

cies

are

sat

isfie

d th

at t

hey

coul

d co

pe w

ith t

he B

ill’s

Bus

ines

s C

ontin

uity

iss

ues.

Som

e ha

ve

Bus

ines

s Con

tinui

ty O

ffic

ers i

n po

st. O

ther

s wou

ld h

ave

to fi

nd a

dditi

onal

fina

nce

to fu

lfil t

hese

requ

irem

ents

. N

ottin

gham

shire

Em

erge

ncy

Serv

ices

Lia

ison

Gro

up, C

C E

V

82, q

uest

ion

2 4

(3)(

a)

Reg

ulat

ions

und

er

subs

ectio

n (2

) may

, in

par

ticul

ar –

(a)

perm

it a

body

to

mak

e a

char

ge fo

r ad

vice

or a

ssis

tanc

e pr

ovid

ed o

n re

ques

t un

der s

ubse

ctio

n (1

)

Rec

ogni

tion

shou

ld b

e gi

ven

to t

he f

act

that

alth

ough

loc

al a

utho

ritie

s m

ay b

e ab

le t

o ch

arge

for

pro

vidi

ng

busi

ness

con

tinui

ty a

dvic

e an

d su

ppor

t to

loc

al b

usin

esse

s, in

rea

lity

it is

unl

ikel

y th

at m

ost

of t

he s

mal

l bu

sine

sses

will

be

able

or w

illin

g to

pay

for t

his

supp

ort.

If th

is a

ctiv

ity is

to b

e su

cces

sful

then

the

shor

tfall

in

fund

ing

will

nee

d to

be

prov

ided

by

Gov

ernm

ent t

hrou

gh a

dditi

onal

reso

urce

s.

Lond

on B

orou

gh o

f Bar

king

and

D

agen

ham

, CC

EV

84,

que

stio

n 8

5 G

ener

al m

easu

res

The

mea

sure

s in

cla

use

5 ar

e in

suff

icie

ntly

robu

st to

ens

ure

that

all

loca

l res

pond

ers

play

a fu

ll pa

rt in

the

new

ar

rang

emen

ts. L

ocal

Res

ilien

ce F

orum

s sh

ould

be

give

n st

atut

ory

pow

ers

and

dutie

s, w

hich

sho

uld

appe

ar o

n LG

A, J

C E

V 1

0, p

ara

3.4.

1

170

the

face

of t

he B

ill, t

o en

sure

impr

oved

liai

son

betw

een

dist

ricts

and

cou

ntie

s and

oth

er a

genc

ies.

6

Dis

clos

ure

of

info

rmat

ion

AC

PO h

as c

once

rns

that

this

cou

ld in

clud

e se

cret

and

/or c

onfid

entia

l inf

orm

atio

n. C

are

will

hav

e to

be

take

n in

dr

aftin

g su

ch re

gula

tions

. A

CPO

, CC

EV

98,

cha

pter

2

8 M

onito

ring

by

Gov

ernm

ent

The

prov

isio

n of

info

rmat

ion

need

s to

be

two

way

and

Gov

ernm

ent d

epar

tmen

ts s

houl

d no

t she

lter b

ehin

d th

e ov

er-c

lass

ifica

tion

of in

form

atio

n an

d m

ater

ial.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

ara

13

Spec

ialis

t aud

itors

may

be

nece

ssar

y to

mon

itor t

he im

plem

enta

tion

of th

e dr

aft B

ill. T

he e

xist

ent a

udit

syst

ems

have

faile

d in

the

past

, in

rela

tion

to th

e fu

el c

risis

and

foot

and

mou

th.

Her

efor

d an

d W

orce

ster

Com

bine

d Fi

re A

utho

rity,

CC

EV

23,

cha

pter

3

Ther

e is

ser

ious

con

cern

abo

ut th

e pr

oces

s of

mon

itorin

g. W

ho w

ill s

et th

e st

anda

rds

and

how

will

per

form

ance

in

dica

tors

be

mon

itore

d? W

ill a

ll ag

enci

es b

e in

spec

ted

to t

he s

ame

degr

ee a

nd w

ill s

tand

ards

be

the

sam

e ac

ross

all

agen

cies

?

Nor

th W

ales

Stra

tegi

c Em

erge

ncy

Plan

ning

Gro

up, C

C E

V 2

6, p

ara

10

The

need

for

an

exte

rnal

aud

it of

per

form

ance

is

ques

tiona

ble.

Ins

tead

a f

orm

of

self

asse

ssm

ent

shou

ld b

e es

tabl

ishe

d th

at c

an b

e co

mpl

eted

by

each

aut

horit

y an

d th

en b

e su

bmitt

ed to

the

Cab

inet

Off

ice

or R

egio

nal

Gov

ernm

ent O

ffic

e fo

r acc

redi

tatio

n.

Iain

Ber

ry, M

id B

eds,

CC

EV

63,

qu

estio

n 9

Ther

e is

con

cern

that

exi

stin

g au

dit p

roce

sses

may

not

add

ress

the

qual

itativ

e is

sues

that

nee

d to

be

addr

esse

d in

em

erge

ncy

plan

ning

. An

audi

t reg

ime

shou

ld m

easu

re c

apac

ity a

nd c

ompe

tenc

e th

at is

not

rea

dily

qua

ntifi

ed.

Mul

ti-ag

ency

wor

king

mus

t fo

rm p

art

of t

he a

uditi

ng p

roce

ss,

requ

iring

an

inte

grat

ed a

ppro

ach

by t

he

insp

ectin

g re

gim

es.

Bris

tol C

ity C

ounc

il, C

C E

V 6

9,

ques

tion

9

9 E

nfor

cem

ent

Giv

en t

he v

ery

wid

e ra

nge

of o

rgan

isat

ions

lis

ted

at C

ateg

ory

1 or

2 r

espo

nder

s, th

e sc

ope

for

mis

use

of

gene

ralis

ed re

quire

men

ts in

the

Bill

, and

the

fact

that

this

rela

tes

to P

art 1

, the

pow

ers

unde

r cla

use

9 sh

ould

be

limite

d to

a M

inis

ter o

f the

Cro

wn

only

.

Wes

tern

Pow

er D

istri

butio

n, C

C

EV 6

0, p

ara

17

10

Prov

isio

n of

In

form

atio

n Th

e D

ata

Prot

ectio

n A

ct m

ay a

pply

to th

is c

laus

e O

xfor

dshi

re C

ount

y C

ounc

il, C

C

EV 4

, par

a 14

12

N

atio

nal A

ssem

bly

for

Wal

es

Ther

e ar

e se

rious

con

stitu

tiona

l and

pol

itica

l pro

blem

s co

ncer

ning

the

role

and

resp

onsi

bilit

ies

of th

e de

volv

ed

adm

inis

tratio

n –

in p

artic

ular

the

Wel

sh A

ssem

bly

Gov

ernm

ent.

Thes

e m

ust

be r

esol

ved

or m

ay r

esul

t in

po

tent

ially

unw

orka

ble

legi

slat

ion.

Nor

th W

ales

Stra

tegi

c Em

erge

ncy

Plan

ning

Gro

up, C

C E

V 2

6, p

ara

6

PA

RT

2 –

E

ME

RG

EN

CY

PO

WE

RS

17

Mea

ning

of

“em

erge

ncy”

B

ecau

se o

f thi

s def

initi

on, t

he d

raft

Bill

will

app

ly to

a b

ewild

erin

g ra

nge

of in

dust

rial a

ctio

n w

hich

cou

ld e

asily

be

con

stru

ed a

s co

nstit

utin

g a

‘ser

ious

thr

eat’

to w

hat

are

not

alw

ays

emer

genc

y si

tuat

ions

: fo

r in

stan

ce,

a te

ache

r’s

strik

e w

ould

und

er t

his

defin

ition

con

stitu

te a

ser

ious

thr

eat

to t

he w

elfa

re o

f al

l or

par

t of

the

po

pula

tion

of th

e U

K.

Prof

esso

r K D

Ew

ing,

JC E

V 2

, pa

ra 6

The

draf

t Bill

giv

es th

e go

vern

men

t tem

ptin

gly

wid

e po

wer

s ca

pabl

e of

bei

ng u

nloc

ked

on a

ltoge

ther

too

low

a

thre

shol

d. In

the

hand

s of

the

draf

ters

of t

his

Bill

, the

ord

inar

y be

com

es th

e ex

cept

iona

l, th

e se

rious

cha

lleng

es

of e

very

day

life

bein

g se

en n

ot a

s (m

erel

y) s

erio

us c

halle

nges

but

as

evid

ence

of

an e

mer

genc

y si

tuat

ion,

Prof

esso

r C A

Gea

rty, J

C E

V 3

, pa

ra 4

171

requ

iring

em

erge

ncy

pow

ers.

The

Bill

so

expa

nds

the

mea

ning

of

wha

t is

an “

emer

genc

y” th

at it

ris

ks m

akin

g a

furth

er m

ajor

pus

h in

the

dire

ctio

n of

gui

ding

us

to t

he f

alse

und

erst

andi

ng t

hat

we

mus

t al

l le

arn

to l

ive

in a

situ

atio

n of

per

man

ent

emer

genc

y, w

ith th

e co

nseq

uent

ero

sion

of o

ur d

emoc

ratic

and

civ

il lib

ertie

s cul

ture

.

W

e w

ould

reje

ct a

ny n

otio

n of

an

‘em

erge

ncy’

bas

ed o

n a

‘thre

at to

sec

urity

’ tha

t did

not

als

o po

se a

thre

at to

pu

blic

safe

ty a

nd p

hysi

cal w

ell-b

eing

. JU

STIC

E, JC

EV

15,

par

a 16

The

defin

ition

of

emer

genc

y ad

opte

d in

the

Bill

is

undu

ly w

ide

for

the

purp

oses

of

indu

stria

l di

sput

es a

nd

perm

its p

ower

s to

be

take

n w

hich

may

be

disp

ropo

rtion

ate

whe

re i

ndus

trial

act

ion

is o

f lim

ited

impa

ct o

r du

ratio

n. I

t w

ould

be

pref

erab

le f

or i

ndus

trial

act

ion

in e

ssen

tial

serv

ices

to

be t

he s

ubje

ct o

f se

para

te

legi

slat

ion.

Prof

esso

r G M

orris

, JC

EV

5, p

ara

1

17 (1

) “e

mer

genc

y” m

eans

an

eve

nt o

r situ

atio

n w

hich

pre

sent

s a

serio

us th

reat

to –

Her

e th

e w

ord

‘ser

ious

’ is

use

d to

qua

lify

the

thre

at to

a s

ervi

ce o

r ac

tivity

, rat

her

than

a s

ituat

ion

or e

vent

w

hich

mig

ht o

bjec

tivel

y be

thou

ght t

o be

serio

us. A

n ai

r of u

nrea

lity

and

a co

mpl

ete

lack

of p

ropo

rtion

ality

thus

in

form

the

defin

ition

of a

n em

erge

ncy.

Prof

esso

r K D

Ew

ing,

JC E

V 2

, pa

ra 7

17

(1)(

a)

(a) t

he w

elfa

re o

f all

or p

art o

f the

po

pula

tion

of th

e U

nite

d K

ingd

om o

r of

a P

art o

r reg

ion

The

regi

ons n

eed

to b

e in

clud

ed in

the

draf

t Bill

, but

con

side

ratio

n sh

ould

als

o be

giv

en to

incl

udin

g ar

eas

smal

ler t

han

regi

onal

. Thi

s sho

uld

not a

llow

the

Gov

ernm

ent t

o ab

dica

te o

vera

ll re

spon

sibi

lity,

how

ever

.

Dud

ley

Met

ropo

litan

Bor

ough

C

ounc

il, C

C E

V 4

7, q

uest

ion

14

Con

side

ratio

n sh

ould

be

give

n to

sub

-reg

iona

l are

as w

here

spec

ial l

egis

lativ

e po

wer

s co

uld

alle

viat

e or

ass

ist i

n so

lvin

g a

maj

or in

cide

nt o

f a lo

cal n

atur

e (e

.g. f

lood

ing,

CB

RN

). B

right

on a

nd H

ove

City

Cou

ncil,

C

C E

V 8

8, q

uest

ion

11

17

(1)(

c)

the

polit

ical

, ad

min

istra

tive

or

econ

omic

stab

ility

of

the

Uni

ted

Kin

gdom

or

of a

Par

t or r

egio

n

This

is v

ery

wid

e in

deed

. D

avid

Bon

ner,

JC E

V 1

, par

a 6

The

incl

usiv

e de

finiti

on o

f th

ese

thre

ats

is to

o w

ide

and

prov

ides

littl

e gu

idan

ce o

n ho

w th

e po

wer

s w

ould

in

fact

be

depl

oyed

in p

ract

ice:

Any

dis

rupt

ion

of G

over

nmen

t act

iviti

es, h

owev

er tr

ivia

l, ne

cess

arily

am

ount

s to

a

polit

ical

/ adm

inis

trativ

e th

reat

. The

Gov

ernm

ent c

ould

, in

prin

cipl

e, d

ecla

re a

sta

te o

f em

erge

ncy

and

susp

end

all p

rimar

y le

gisl

atio

n if

face

d w

ith p

oten

tial p

oliti

cal i

nsta

bilit

y.

Libe

rty, J

C E

V 1

4, p

ara

20

17 (2

) Fo

r the

pur

pose

s of

subs

ectio

n (1

)(a)

an

even

t or s

ituat

ion

pres

ents

a th

reat

to

the

wel

fare

of a

The

“ess

entia

ls o

f lif

e” t

hat

shou

ld b

e pr

otec

ted

by t

he a

bilit

y to

res

ort

to e

mer

genc

y po

wer

s sh

ould

be

cons

ider

ed v

ery

care

fully

. Is ‘

educ

atio

n’ o

f the

sam

e w

eigh

t as l

ife, f

ood,

fuel

and

med

ical

serv

ices

? D

avid

Bon

ner,

JC E

V 1

, par

a 6

172

popu

latio

n if,

in

parti

cula

r, it

invo

lves

, ca

uses

or m

ay c

ause

–

17

(2)(

e)

disr

uptio

n of

a su

pply

of

food

, wat

er,

ener

gy, f

uel o

r an

othe

r ess

entia

l co

mm

odity

An

‘ess

entia

l com

mod

ity’ n

eeds

to b

e m

ore

clea

rly d

efin

ed. W

hat i

s it a

nd w

ho d

ecid

es w

hat i

t is?

Pr

ofes

sor K

D E

win

g, JC

EV

2,

para

4

17(2

)(h

) di

srup

tion

of m

edic

al,

educ

atio

nal o

r oth

er

esse

ntia

l ser

vice

The

Bill

nee

ds to

cla

rify

wha

t an

‘ess

entia

l ser

vice

’ is.

It sh

ould

als

o be

exp

lain

ed w

hy e

duca

tion

is a

n es

sent

ial

serv

ice

whi

ch re

quire

s the

supp

ort o

f em

erge

ncy

pow

ers.

Pr

ofes

sor K

D E

win

g, JC

EV

2,

para

5

18

Roy

al P

rocl

amat

ion

The

Scot

tish

Parli

amen

t, W

elsh

Ass

embl

y G

over

nmen

t an

d N

orth

ern

Irel

and

Ass

embl

y sh

ould

be

allo

wed

un

der

this

legi

slat

ion

to d

ecla

re a

n em

erge

ncy

itsel

f an

d ta

ke w

hate

ver

spec

ial l

egis

lativ

e m

easu

res

it be

lieve

s ar

e ne

cess

ary

to d

eal w

ith it

– w

ithin

its

com

pete

nce

as a

dev

olve

d ad

min

istra

tion.

The

UK

Gov

ernm

ent s

houl

d on

ly b

e in

volv

ed w

here

the

mea

sure

s req

uire

d ar

e ou

tsid

e th

at d

evol

ved

com

pete

nce.

Nor

th W

ales

Pol

ice,

CC

EV

28,

qu

estio

ns 1

8, 1

9 an

d 20

The

abili

ty to

invo

ke e

mer

genc

y po

wer

s sh

ould

fall

to th

e de

volv

ed a

dmin

istra

tions

in W

ales

, Nor

ther

n Ir

elan

d an

d Sc

otla

nd a

nd re

mai

n w

ith M

inis

ters

in E

ngla

nd.

Wel

sh A

mbu

lanc

e Se

rvic

es N

HS

Trus

t, C

C E

V 5

2, q

uest

ion

15

The

fixed

30

day

perio

d fo

r a p

rocl

amat

ion

or o

rder

is to

o in

flexi

ble

to sa

tisfy

pro

porti

onal

ity

Libe

rty, J

C E

V 1

4, p

ara

25

19

Dec

lara

tion

by

Secr

etar

y of

Sta

te

It is

ent

irely

ina

ppro

pria

te t

hat

such

wid

e-ra

ngin

g po

wer

s re

mai

n w

ith t

he S

ecre

tary

of

Stat

e w

ho m

ay b

e m

otiv

ated

by

pure

ly p

oliti

cal r

easo

ns.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

ara

15

Sign

ifica

nt c

hang

es t

o th

e pr

inci

ples

of

Brit

ish

Con

stitu

tiona

l la

w s

houl

d no

t be

inc

orpo

rate

d w

ithin

thi

s le

gisl

atio

n.

Uttl

esfo

rd D

istri

ct C

ounc

il, C

C

EV8,

que

stio

n 16

Su

rely

in th

ese

days

of

adva

nced

tech

nolo

gy, t

he Q

ueen

is a

lway

s av

aila

ble.

A c

onst

itutio

nal c

hang

e is

onl

y ac

cept

able

if th

at w

ere

not t

he c

ase.

Ea

st S

usse

x C

ount

y C

ounc

il, C

C

EV 5

6, q

uest

ion

17

Unl

ess a

Roy

al P

rocl

amat

ion

is im

poss

ible

(dea

th o

f the

Que

en w

ith n

o im

med

iate

acc

essi

on p

ossi

ble)

the

dela

y in

obt

aini

ng a

Roy

al P

rocl

amat

ion

is o

nly

mar

gina

l. N

o fu

rther

pow

ers s

houl

d be

take

n by

the

Secr

etar

y of

Sta

te

in th

is in

stan

ce.

Brig

hton

and

Hov

e C

ity C

ounc

il,

CC

EV

88,

que

stio

n 16

Whe

re it

is n

eces

sary

to in

voke

suc

h a

prov

isio

n, th

e po

wer

sho

uld,

in th

e fir

st in

stan

ce, b

e ve

sted

in th

e Pr

ime

Min

iste

r (in

res

pect

of

Engl

and

and

Wal

es),

be o

f sh

orte

r du

ratio

n an

d be

sub

ject

to im

med

iate

Par

liam

enta

ry

scru

tiny.

Bol

ton

Met

ro C

omm

erci

al

Serv

ices

, CC

EV

95,

que

stio

n 19

We

wou

ld s

ugge

st th

at w

here

pos

sibl

e th

e Se

cret

ary

of S

tate

’s d

ecis

ion

be c

onfir

med

by

the

Que

en a

s H

ead

of

Stat

e as

soon

as i

s pra

ctic

ally

pos

sibl

e.

Bar

net L

ondo

n B

orou

gh, C

C E

V

20, p

ara

16

20(1

)(b

) an

d 20

(2)(

b

Whi

le a

pro

clam

atio

n un

der s

ectio

n 18

is in

fo

rce

–

Del

ete

thes

e tw

o cl

ause

s –

ther

e is

unl

ikel

y to

be

such

a s

ever

e in

cide

nt th

at d

elay

wou

ld n

ot b

e ac

cept

able

. It

will

tak

e tim

e to

mob

ilise

any

res

pons

e fr

om o

utsi

de t

he l

ocal

are

a an

d lo

cal

resp

onde

rs w

ill c

ope

with

the

im

med

iate

em

erge

ncy.

Exi

stin

g le

gisl

atio

n an

d R

oyal

pro

cedu

res

pres

umab

ly a

lread

y ta

ke i

nto

acco

unt

any

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

aras

17

and

67

173

) th

e Se

cret

ary

of S

tate

m

ay m

ake

regu

latio

ns u

nder

se

ctio

n 21

if sa

tisfie

d th

at it

wou

ld n

ot b

e po

ssib

le, w

ithou

t a

serio

us d

elay

, to

arra

nge

for a

n O

rder

in

Cou

ncil

unde

r pa

ragr

aph

(a)

inca

paci

ty o

f th

e M

onar

ch o

r la

ck o

f im

med

iate

acc

ess.

Ther

e w

ould

ther

efor

e no

t be

any

sign

ifica

nt d

elay

in

seek

ing

a R

oyal

Pro

clam

atio

n.

20

(2)(

b)

An

orde

r und

er th

is

sect

ion

mus

t sta

te –

(b

) the

Par

ts o

f the

U

nite

d K

ingd

om o

r re

gion

s in

rela

tion

to

whi

ch th

e re

gula

tions

m

ay h

ave

effe

ct.

App

lyin

g sp

ecia

l leg

isla

tive

mea

sure

s on

a re

gion

al b

asis

is u

nnec

essa

ry in

such

a sm

all c

ount

ry. T

his m

odel

w

ould

app

ear t

o m

irror

muc

h la

rger

cou

ntrie

s suc

h as

Am

eric

a w

here

such

legi

slat

ive

mea

sure

s are

supp

orte

d by

imm

edia

te fi

nanc

e ba

sed

on th

e de

clar

atio

n of

an

emer

genc

y. S

uch

regi

onal

legi

slat

ive

mea

sure

s are

als

o a

dang

er to

dem

ocra

cy, a

s a n

atio

nal d

ecla

ratio

n of

em

erge

ncy

shou

ld in

volv

e th

e M

onar

ch a

nd P

arlia

men

t and

ca

n ac

t as a

che

ck o

n M

inis

ters

.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

aras

59-

60

This

shou

ld b

e in

clud

ed o

nly

if th

e ‘tr

iple

lock

’ saf

egua

rds a

re in

clud

ed w

ithin

the

prim

ary

legi

slat

ion.

To

rbay

Cou

ncil,

CC

EV

48,

qu

estio

n 16

21

Sc

ope

of r

egul

atio

ns

Such

mea

sure

s as

the

dest

ruct

ion

of p

rope

rty, p

lant

and

ani

mal

life

; con

trol o

f mov

emen

t; pr

ohib

ition

of t

rave

l; pr

ohib

ition

of

asse

mbl

ies

and

hefty

fin

es h

ave

no p

lace

in

emer

genc

y pl

anni

ng l

egis

latio

n. T

hese

are

pub

lic

orde

r iss

ues a

nd sh

ould

be

incl

uded

in P

ublic

Ord

er o

r Crim

inal

Just

ice

Act

s.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

aras

62

Som

e lim

its a

re s

et b

y cl

ause

21(

1) –

setti

ng a

n in

itial

thre

shol

d of

ser

ious

ness

– a

nd b

y cl

ause

21(

4). H

owev

er,

in v

iew

of

the

limita

tion

of ju

dici

al r

evie

w u

nder

the

Wed

nesb

ury

doct

rine

(whi

ch w

ill b

e th

e st

anda

rd to

be

appl

ied

in c

onsi

derin

g w

heth

er c

laus

e 21

(1) i

s sa

tisfie

d) a

nd th

e br

oad

rang

e of

cla

use

21(3

), th

ese

safe

guar

ds

are

inad

equa

te.

Prof

esso

r I L

eigh

, JC

EV

4, p

ara

1

It ha

s bee

n ge

nera

lly a

ccep

ted

in S

cotla

nd th

at p

lann

ing

in d

etai

l doe

s not

wor

k an

d th

at g

ener

ic p

lans

(or b

ette

r m

anag

emen

t arr

ange

men

ts) w

orks

in e

very

situ

atio

n.

Dav

id G

urne

y, E

PO, D

umfr

ies &

G

allo

way

Cou

ncil,

CC

EV

5, p

ara

5 21

(1)

(2)

and

(3)

Sh

ould

beg

in ‘s

ubje

ct to

sect

ions

21(

4), 2

3, 2

5 an

d 26

. D

avid

Bon

ner,

JC E

V 1

, par

a 15

21 (2

) In

par

ticul

ar,

regu

latio

ns m

ay

mak

e an

y pr

ovis

ion

whi

ch th

e pe

rson

Onc

e cl

ause

21(

2) is

invo

ked

it pr

ovid

es a

gat

eway

into

the

rang

e of

pow

ers

unde

r cla

use

21(3

) with

too

little

co

ntin

uing

rega

rd to

the

initi

al ‘t

rigge

ring’

fact

or.

Prof

esso

r I L

eigh

, JC

EV

4, p

ara

1

174

mak

ing

them

thin

ks

nece

ssar

y fo

r the

pu

rpos

e of

-

Not

all

clau

se 2

1(2)

pur

pose

s are

equ

ally

ser

ious

. How

ever

, all

of th

ese

purp

oses

trig

ger t

he fu

ll ra

nge

of c

laus

e 21

(3) p

ower

s, no

twith

stan

ding

. A b

ette

r app

roac

h w

ould

be

to b

and

the

clau

se 2

1(2)

pur

pose

s an

d th

e av

aila

ble

pow

ers u

nder

regu

latio

ns a

ccor

ding

to se

rious

ness

.

Prof

esso

r I L

eigh

, JC

EV

4, p

ara

1

21 (3

) R

egul

atio

ns u

nder

th

is se

ctio

n m

ay

mak

e pr

ovis

ion

of

any

kind

that

cou

ld

be m

ade

by A

ct o

f Pa

rliam

ent o

r by

the

exer

cise

of t

he R

oyal

Pr

erog

ativ

e

Sinc

e Pa

rliam

ent i

s sov

erei

gn a

nd c

an, s

ubje

ct to

the

ECA

197

2, m

ake

wha

teve

r pro

visi

on it

like

s, th

at la

ngua

ge

detra

cts

from

the

inte

nt th

at c

laus

e 21

(4) s

ets

subs

tant

ive

limits

, a d

etra

ctio

n th

e m

ore

wor

ryin

g in

that

cla

use

21(4

)(j)

enab

les t

he m

akin

g of

regu

latio

ns to

“di

sapp

ly o

r mod

ify a

n en

actm

ent o

r a p

rovi

sion

mad

e un

der o

r by

virtu

e of

any

ena

ctm

ent”

.

Dav

id B

onne

r, JC

EV

1, p

ara

15

21

(3)(

a)

Reg

ulat

ions

may

–

(a) c

onfe

r a fu

nctio

n on

a M

inis

ter o

f the

C

row

n or

oth

er

spec

ified

per

son

This

is p

oten

tially

ope

n to

ser

ious

abu

se, i

f, sa

y, u

nlim

ited

pow

ers

are

give

n to

a m

inor

una

ccou

ntab

le o

ffic

ial,

parti

cula

rly a

s th

ere

will

be

offe

nces

of n

on-c

ompl

ianc

e/ o

bstru

ctio

n. T

he B

ill n

eeds

to c

ircum

scrib

e th

e po

wer

to

issu

e di

rect

ions

.

BT,

CC

EV

102

, par

a I,

c

This

may

nee

d cl

arifi

catio

n –

will

this

indi

vidu

al b

e an

ele

cted

off

icia

l, a

Cat

egor

y 1

or 2

Res

pond

er o

r so

me

othe

r per

son?

N

HS

Lond

on, J

C E

V 7

, par

a

21

(3)(

b)

and

(c)

regu

latio

ns m

ay –

(b

) pro

vide

for o

r en

able

the

requ

isiti

on

or c

onfis

catio

n of

pr

oper

ty (w

ith o

r w

ithou

t co

mpe

nsat

ion)

(c)

prov

ide

for o

r ena

ble

the

dest

ruct

ion

of

prop

erty

, ani

mal

life

or

pla

nt li

fe (w

ith o

r w

ithou

t co

mpe

nsat

ion)

All

refe

renc

e to

“w

ithou

t co

mpe

nsat

ion”

sho

uld

be r

emov

ed.

Such

dra

coni

an p

ower

s w

ill o

nly

lead

to

unne

cess

ary

civi

l unr

est a

nd la

ck o

f co-

oper

atio

n, w

hich

will

ham

per t

he lo

cal r

ecov

ery

effo

rt.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

ara

18

21

(3)(

d)

regu

latio

ns m

ay –

(d)

proh

ibit,

or e

nabl

e Th

is m

ay a

utho

rise

dete

ntio

n w

ithou

t tria

l and

the

hous

e ar

rest

of s

peci

fied

indi

vidu

als.

Pr

ofes

sor K

D E

win

g, JC

EV

2,

para

13

175

the

proh

ibiti

on o

f, m

ovem

ent t

o or

from

a

spec

ified

pla

ce

“oth

er th

an P

art 2

of t

his A

ct”

shou

ld b

e ad

ded

at th

e en

d of

this

cla

use.

D

avid

Bon

ner,

JC E

V 1

, par

a 15

21

(3

)(f)

R

egul

atio

ns m

ay –

(f)

proh

ibit,

or e

nabl

e th

e pr

ohib

ition

of,

asse

mbl

ies o

f sp

ecifi

ed k

inds

, at

spec

ified

pla

ces o

r at

spec

ified

tim

es

This

wou

ld e

nabl

e a

ban

on p

icke

ting

outs

ide

a w

orkp

lace

. Pea

cefu

l pic

ketin

g w

ithin

the

gene

ral l

aw (

whi

ch

itsel

f is h

ighl

y re

stric

tive)

shou

ld b

e ex

empt

ed fr

om th

is p

rovi

sion

. Pr

ofes

sor G

Mor

ris, J

C E

V 5

, par

a IV

21

(3)(

i) R

egul

atio

ns m

ay –

(i)

crea

te a

n of

fenc

e of

-

Ther

e is

no

spec

ific

pow

er o

f arr

est a

nd n

o sp

ecifi

c au

thor

ity to

use

forc

e w

hen

deal

ing

with

off

ence

s pr

opos

ed

at c

laus

e 21

(3)(

i).

AC

PO, C

C E

V 9

8, c

hapt

er 1

Cur

rent

legi

slat

ion

and

the

draf

t Bill

dea

l onl

y w

ith s

ettin

g lim

its to

‘pun

ishm

ent’.

Nei

ther

pro

hibi

t the

mak

ing

of a

reg

ulat

ion

whi

ch w

ould

allo

w in

tern

men

t or

dete

ntio

n w

ithou

t tria

l, si

nce

prev

enta

tive

dete

ntio

n fo

r th

e pu

blic

goo

d m

ay w

ell n

ot b

e ch

arac

teris

ed b

y go

vern

men

t as

puni

shm

ent b

ut m

erel

y pr

even

tativ

e ac

tion.

The

B

ill sh

ould

be

amen

ded

to p

recl

ude

the

poss

ibili

ty o

f res

ort t

o in

tern

men

t with

out t

rial b

y th

is b

ackd

oor m

etho

d.

Dav

id B

onne

r, JC

EV

1, p

ara

13

21

(3)(

j) re

gula

tions

may

– (j

) di

sapp

ly o

r mod

ify a

n en

actm

ent o

r pr

ovis

ion

mad

e un

der

or b

y vi

rtue

of a

n en

actm

ent

This

pow

er s

houl

d be

use

d to

pro

tect

util

ity c

ompa

nies

, act

ing

unde

r the

se re

gula

tions

, fro

m H

uman

Rig

hts

Act

ch

alle

nges

dur

ing

the

cour

se o

f the

em

erge

ncy

or su

bseq

uent

ly.

EDF

Ener

gy, C

C E

V 7

5, q

uest

ion

17

This

cla

use

is o

f par

ticul

ar c

once

rn. ‘

Enac

tmen

ts’ a

t ris

k co

uld

incl

ude

the

Hum

an R

ight

s A

ct 1

998,

Pol

ice

and

Crim

inal

Evi

denc

e A

ct 1

984,

Pub

lic O

rder

Act

198

6, R

egul

atio

n of

Inv

estig

ator

y Po

wer

s A

ct 2

000,

the

Te

rror

ism

Act

200

0 an

d th

e A

nti-T

erro

rism

Crim

e an

d Se

curit

y A

ct 2

001.

In a

ll of

thes

e ca

ses,

Parli

amen

t has

al

read

y ba

lanc

ed c

ivil

liber

ties

and

com

mun

ity in

tere

sts.

It sh

ould

not

be

open

to th

e G

over

nmen

t to

set t

hese

ba

lanc

ed sc

hem

es a

side

by

regu

latio

ns u

nder

cla

use

21. E

ither

spec

ific

Act

s dea

ling

with

em

erge

ncie

s sho

uld

be

exem

pted

und

er c

laus

e 21

or c

laus

e 21

(4) s

houl

d be

stre

ngth

ened

.

Prof

esso

r I L

eigh

, JC

EV

4, p

ara

1

In p

rinci

ple,

this

cou

ld e

ven

incl

ude

a po

wer

to d

isap

ply

any

part

of th

e H

uman

Rig

hts

Act

or

the

Sect

ion

24

HR

a r

equi

rem

ent

for

Parli

amen

tary

app

rova

l of

the

reg

ulat

ions

in

the

Bill

its

elf.

In i

ts p

rese

nt u

nres

trict

ed

ambi

t, cl

ause

21(

3)(j)

is n

ot C

onve

ntio

n co

mpa

tible

.

Libe

rty, J

C E

V 1

4, p

ara

37

21(3

)(l)

regu

latio

ns m

ay –

(l)

conf

er ju

risdi

ctio

n on

a

cour

t or t

ribun

al

(whi

ch m

ay in

clud

e a

This

wou

ld p

resu

mab

ly in

clud

e a

pow

er to

con

fer

crim

inal

juris

dict

ion

and

sent

enci

ng o

n m

ilita

ry tr

ibun

als.

Wha

t is

in m

ind

here

, and

why

sho

uld

any

such

reg

ulat

ion

not b

e su

bjec

t to

judi

cial

scr

utin

y to

ens

ure

that

it

com

plie

s with

the

right

to a

fair

trial

in a

rticl

e 6

of E

CH

R?

Prof

esso

r K D

Ew

ing,

JC E

V 2

, pa

ra 1

7

176

tribu

nal e

stab

lishe

d by

the

regu

latio

ns)

21 (4

) W

ithou

t pre

judi

ce to

th

e ge

nera

lity

of

subs

ectio

n (1

)(a)

, re

gula

tions

may

not

It is

inap

prop

riate

wor

ding

, not

foun

d in

the

curr

ent E

PA 1

920,

to h

ave

a su

b cl

ause

set

ting

out t

o lim

it a

very

br

oad

rule

-mak

ing

pow

er se

t out

in 2

1(1)

and

am

plifi

ed in

21(

2) a

nd (3

).

Dav

id B

onne

r, JC

EV

1, p

ara

15

21

(4)(

a)

Reg

ulat

ions

may

not

–

(a) r

equi

re a

per

son,

or

ena

ble

a pe

rson

to

be re

quire

d, to

pr

ovid

e m

ilita

ry o

r in

dust

rial s

ervi

ce

The

inab

ility

to re

quire

indu

stria

l ser

vice

may

rend

er in

effe

ctiv

e th

e po

wer

to re

quis

ition

spec

ialis

t equ

ipm

ent a

s pr

ovid

ed b

y 21

(3)(

b). I

t sho

uld

be d

elet

ed.

AC

PO, C

C E

V 9

8, c

hapt

er 1

21

(4)(

b)

Reg

ulat

ions

may

not

–

(b) p

rohi

bit,

or

enab

le th

e pr

ohib

ition

of

, a st

rike

or o

ther

in

dust

rial a

ctio

n

This

is n

arro

wer

than

the

corr

espo

ndin

g pr

ovis

ions

of t

he 1

920

Act

s 2

(1).

This

pro

vide

s th

at n

o re

gula

tions

are

to

mak

e it

an o

ffen

ce ‘t

o ta

ke p

art i

n a

strik

e, o

r pea

cefu

lly to

per

suad

e an

y pe

rson

or p

erso

ns to

take

par

t in

a st

rike’

. U

nder

the

new

for

mul

a it

will

not

be

poss

ible

to

proh

ibit

a st

rike

but

may

be

poss

ible

to

mak

e it

unla

wfu

l fo

r sp

ecifi

c gr

oups

of

wor

kers

to

take

par

t in

it.

This

wou

ld m

ean

for

the

first

tim

e si

nce

1875

, a

peac

etim

e go

vern

men

t in

the

UK

will

hav

e ta

ken

the

pow

er to

mak

e pa

rtici

patio

n in

a s

trike

or o

ther

indu

stria

l ac

tion

a cr

imin

al o

ffen

ce, p

unis

habl

e by

up

to th

ree

mon

ths i

mpr

ison

men

t.

Prof

esso

r K D

Ew

ing,

JC E

V 2

, pa

ra 8

This

doe

s not

pre

vent

cha

nges

to in

divi

dual

em

ploy

men

t rig

hts,

such

as

the

unfa

ir di

smis

sal p

rote

ctio

n af

ford

ed

to e

mpl

oyee

s fo

r tak

ing

‘pro

tect

ed in

dust

rial a

ctio

n’ o

r the

pre

serv

atio

n of

con

tinui

ty o

f em

ploy

men

t for

thos

e w

ho ta

ke p

art i

n a

strik

e. P

rovi

sion

shou

ld b

e m

ade

to e

nsur

e th

at th

ese

chan

ges c

anno

t be

mad

e un

der c

laus

e 21

(3

)(j).

Prof

esso

r G M

orris

, JC

EV

5, p

ara

IV

21(4

) (d

) R

egul

atio

ns m

ay n

ot

– (d

) cre

ate

an

offe

nce

whi

ch is

pu

nish

able

– (i

) with

im

pris

onm

ent f

or a

pe

riod

exce

edin

g th

ree

mon

ths

Ther

e is

no

pow

er o

f arr

est e

ither

impl

icit

in th

e pe

nalty

sec

tions

of c

laus

e 21

(4)(

d) o

r pro

vide

d se

para

tely

in

the

draf

t Bill

. K

irkle

es M

etro

polit

an C

ounc

il, C

C

EV 2

4, p

ara

f

The

uppe

r lim

its o

f pun

ishm

ent d

etai

led

in th

is c

laus

e ar

e lo

w w

hen

com

pare

d to

the

cons

eque

nces

of p

ossi

ble

offe

nces

. A

CPO

, CC

EV

98,

cha

pter

1

22

Reg

iona

l and

E

mer

genc

y C

oord

inat

ors

The

role

of t

he R

egio

nal T

ier s

houl

d be

pro

perly

est

ablis

hed

as p

art o

f the

stat

utor

y fr

amew

ork.

Se

dgem

oor D

istri

ct C

ounc

il, C

C

EV 6

6, q

uest

ion

2

177

Any

em

erge

ncy

pow

er o

ught

to re

mai

n w

ithin

the

rem

it of

dem

ocra

tical

ly e

lect

ed a

utho

ritie

s. If

ther

e is

to b

e an

y de

lega

tion

to o

ffic

ers

this

sho

uld

be d

one

by c

entra

l go

vern

men

t, in

con

sulta

tion

with

lea

ders

of

loca

l au

thor

ities

.

Esse

x A

utho

ritie

s, C

C E

V 1

4, p

ara

7

The

Reg

iona

l N

omin

ated

Coo

rdin

ator

sho

uld

be t

he ‘

lead

er’

who

can

be

advi

sed

by s

peci

alis

t ex

perts

. One

pe

rson

shou

ld b

e ap

poin

ted

with

seve

ral d

eput

ies.

Ian

Loug

hbor

ough

, CC

EV

45,

ap

pend

ix A

10

The

appo

intm

ent o

f Reg

iona

l Nom

inat

ed C

oord

inat

ors

risks

repe

atin

g th

e pr

oble

ms

caus

ed b

y th

e ad

optio

n of

le

ad g

over

nmen

t de

partm

ents

. Th

e G

over

nmen

t sh

ould

con

side

ring

leav

ing

lead

ersh

ip a

nd c

oord

inat

ion

to

orga

nisa

tions

tha

t pr

ovid

e th

em d

urin

g th

eir

ever

y da

y op

erat

ions

, ra

ther

tha

n ‘a

fun

ctio

nal

lead

ersh

ip’

appr

oach

, whe

re, f

or in

stan

ce th

e D

irect

or o

f Pub

lic H

ealth

wou

ld le

ad in

a h

ealth

cris

is. A

lthou

gh th

ese

peop

le

will

be

com

pete

nt in

thei

r pro

fess

iona

l fie

ld, t

hey

will

hav

e lim

ited

expe

rienc

e in

coo

rdin

atin

g m

any

agen

cies

in

a fa

st c

hang

ing

scen

ario

.

Surr

ey P

olic

e, C

C E

V 4

2, p

ara

6d

The

role

of t

he R

egio

nal N

omin

ated

Coo

rdin

ator

is u

ncle

ar. W

hat e

xact

ly w

ill th

ey d

o? H

ow w

ill th

ey m

anag

e cr

oss

regi

onal

reso

urce

s? W

hat t

rain

ing,

exp

erie

nce

or p

ract

ice

will

they

hav

e? H

ow q

uick

ly w

ill th

ey n

eed

to

resp

ond?

On

wha

t bas

is is

the

‘fun

ctio

nal’

mod

el p

ropo

sed

in th

e dr

aft B

ill sh

own

to b

e ef

fect

ive?

Wilt

shire

Fire

Brig

ade,

CC

EV

32,

ch

apte

r 2, p

ara

20

Such

a p

roce

dure

of

inci

dent

dep

ende

nt n

omin

atio

n of

the

RN

C d

oes

not

prom

ote

the

impo

rtant

rol

e of

le

ader

ship

, tea

m b

uild

ing

and

deci

sion

mak

ing

in ti

mes

of c

risis

. A m

ore

effe

ctiv

e ap

proa

ch w

ould

be

to h

ave

a pe

rman

ent R

egio

nal N

omin

ated

Coo

rdin

ator

who

can

wor

k w

ith th

e re

leva

nt e

mer

genc

y pl

anne

rs a

nd e

xper

ts in

ad

vanc

e of

an

inci

dent

, per

haps

thro

ugh

RC

CC

s, R

RTs

or

RR

Fs in

dev

elop

ing

thes

e re

latio

nshi

ps, p

lans

and

m

etho

ds.

Dr R

odne

y D

ay, U

nive

rsity

of

Her

tford

shire

, CC

EV

18,

par

a 8

Ther

e is

als

o a

need

to c

larif

y th

e re

latio

nshi

p be

twee

n th

e lo

cal S

trate

gic

Coo

rdin

atin

g G

roup

s an

d th

e R

NC

, ot

herw

ise

ther

e co

uld

be d

uplic

atio

n an

d co

nfus

ion.

Ea

st S

usse

x C

ount

y C

ounc

il, C

C

EV 5

6, q

uest

ion

10

Ther

e is

con

cern

at t

he a

bsen

ce o

f ele

cted

repr

esen

tatio

n w

ithin

the

regi

onal

tier

. It

is e

ssen

tial t

hat t

here

is a

bsol

ute

clar

ity o

f pur

pose

and

an

awar

enes

s of t

he d

iffer

ence

of r

ole

betw

een

the

RN

C a

nd th

e G

old

Com

man

der m

anag

ing

the

resp

onse

to th

e in

cide

nt. T

here

is a

lso

conc

ern

that

the

RN

C m

ay

take

resp

onsi

bilit

y fo

r, “e

xpla

inin

g th

e re

spon

se to

the

emer

genc

y to

the

publ

ic th

roug

h th

e m

edia

.” T

his

curr

ently

falls

to G

old

Com

man

d an

d th

ere

is a

real

dan

ger t

hat r

esul

ts in

a c

onfli

ctin

g m

essa

ge. A

bsol

ute

clar

ity o

f rol

e is

ess

entia

l.

Dev

on F

ire a

nd R

escu

e Se

rvic

e,

CC

EV

58,

par

a 2

and

ques

tion

10

The

draf

t Bill

nee

ds c

larif

icat

ion

– R

egio

nal N

omin

ated

Coo

rdin

ator

s ar

e no

t app

oint

ed u

ntil

spec

ial l

egis

lativ

e m

easu

res

have

bee

n de

cide

d ap

poin

ted

(at L

evel

3),

but a

re e

xpec

ted

to c

hair

leve

l 2 m

eetin

gs. T

his

appe

ars

to

be in

cons

iste

nt.

Dud

ley

Met

ropo

litan

Bor

ough

C

ounc

il, C

C E

V 4

7, q

uest

ion

10

If th

e R

NC

is n

ot n

omin

ated

unt

il th

e cr

isis

is u

pon

him

/her

, the

n he

/she

will

not

hav

e ha

d th

e be

nefit

of h

avin

g te

sted

the

regi

onal

org

anis

atio

n, it

s co

mm

unic

atio

ns a

nd c

onst

ituen

t spe

cial

ist s

ervi

ces

by p

rope

r ex

erci

ses

– an

d th

e tim

e to

mak

e m

ista

kes i

s in

exer

cise

s not

dur

ing

a m

ajor

terr

oris

t inc

iden

t.

Dr R

obin

Woo

lven

, CC

EV

123

, pa

ra 1

Reg

iona

l Res

ilien

ce T

eam

s ha

ve n

ow b

een

esta

blis

hed

and

the

head

of t

hese

team

s sh

ould

und

erta

ke th

e ro

le o

f R

egio

nal N

omin

ated

Coo

rdin

ator

. Reg

iona

l Nom

inat

ed C

oord

inat

ors

appo

inte

d fr

om a

lead

org

anis

atio

n m

ight

To

rbay

Cou

ncil,

CC

EV

48,

qu

estio

n 10

178

not h

ave

the

broa

d ov

ervi

ew a

nd le

ader

ship

qua

litie

s req

uire

d to

fulfi

l the

ir en

visa

ged

role

. The

role

of R

egio

nal

Res

ilien

ce T

eam

s sho

uld

also

be

incl

uded

with

in th

e fr

amew

ork

of th

e B

ill.

A r

equi

rem

ent

shou

ld b

e w

ritte

n in

to t

he d

raft

Bill

tha

t no

min

atio

ns f

or a

Reg

iona

l N

omin

ated

Coo

rdin

ator

sh

ould

be

mad

e in

con

sulta

tion

with

age

ncie

s in

volv

ed in

em

erge

ncie

s an

d th

at th

e Se

cret

ary

of S

tate

sho

uld

keep

und

er re

view

the

appo

intm

ent o

f any

RN

C.

LFEP

A, C

C E

V 1

7, p

ara

12

The

Cou

ncil

belie

ves

that

the

RN

C s

houl

d be

dra

wn

from

a p

anel

of p

re-d

esig

nate

d in

divi

dual

s kn

own

to, a

nd

able

to e

ngag

e w

ith, l

ocal

resp

onde

rs (a

s wel

l as r

egio

nal c

ontri

buto

rs) a

t the

pla

nnin

g st

age.

B

olto

n M

etro

Com

mer

cial

Se

rvic

es, C

C E

V 9

5, q

uest

ion

5

To

be

effe

ctiv

e th

e R

egio

nal N

omin

ated

Coo

rdin

ator

sho

uld

have

aut

horit

y to

dire

ct th

e va

rious

com

pone

nts

of

the

resp

onse

ope

ratio

n. T

hey

shou

ld h

ave

sim

ilar p

ower

s to

the

Secr

etar

y of

Sta

te’s

Rep

rese

ntat

ive

for M

arin

e Sa

lvag

e an

d In

terv

entio

n an

d si

t ab

ove

the

mar

ine

Res

pons

e C

entre

, Sh

orel

ine

Res

pons

e C

entre

and

En

viro

nmen

t G

roup

in

orde

r to

ens

ure

stro

ng o

vera

ll di

rect

ion,

coo

rdin

atio

n an

d co

mm

unic

atio

n. T

he n

ew

posi

tion

wou

ld th

eref

ore

prov

ide

a ge

nuin

e be

nefit

to a

ny re

spon

se a

nd n

ot m

erel

y pr

esen

t an

addi

tiona

l lev

el o

f bu

reau

crac

y in

the

com

man

d st

ruct

ure.

Inte

rnat

iona

l Tan

ker O

wne

rs

Pollu

tion

Fede

ratio

n Li

mite

d, C

C

EV 2

1, p

ara

3.5

Whe

re d

oes t

he W

elsh

Ass

embl

y G

over

nmen

t fit

into

the

proc

ess?

Cou

ld o

r wou

ld a

Wel

sh A

ssem

bly

Gov

ernm

ent M

inis

ter e

ver b

e ap

poin

ted

as a

Reg

iona

l Nom

inat

ed C

oord

inat

or?

An

Emer

genc

y C

oord

inat

or

(RN

C) s

houl

d be

ans

wer

able

dire

ctly

to th

e W

elsh

Ass

embl

y G

over

nmen

t via

his

/her

Civ

il C

ontin

genc

ies

Com

mitt

ee. T

here

are

serio

us c

onst

itutio

nal i

ssue

s abo

ut w

heth

er a

n Em

erge

ncy

Coo

rdin

ator

cou

ld h

ave

the

auth

ority

and

abi

lity

to d

eplo

y al

l and

any

mul

ti-ag

ency

reso

urce

s as s

ome

func

tions

lie

with

the

Wel

sh

Ass

embl

y G

over

nmen

t and

som

e do

not

.

Nor

th W

ales

Pol

ice,

CC

EV

28,

qu

estio

n 10

and

21

Con

side

ratio

n m

ust b

e gi

ven

to th

e ne

ed fo

r the

Reg

iona

l Nom

inat

ed C

oord

inat

or to

hav

e cl

ose

links

with

the

Reg

iona

l Res

ilien

ce F

orum

. The

nee

d ex

ists

for a

n Em

erge

ncy

Coo

rdin

ator

to c

ontro

l the

reso

urce

s req

uire

d to

m

itiga

te a

n em

erge

ncy,

but

it is

not

cle

ar h

ow c

ontro

l will

be

achi

eved

whe

re c

onst

itutio

nal d

iffer

ence

s exi

st.

Wel

sh A

mbu

lanc

e se

rvic

es N

HS

Trus

t, C

C E

V 5

2, q

uest

ion

10 a

nd

21

Furth

er c

larif

icat

ion

is n

eede

d re

gard

ing

fund

ing

of a

ny re

quire

men

ts se

t by

the

RN

C. I

f the

RN

C d

ecla

res

certa

in a

ctio

n sh

ould

be

take

n th

at is

bey

ond

the

loca

l res

ourc

e le

vel,

even

giv

en p

artn

ersh

ip w

orki

ng, t

here

m

ust b

e fu

ndin

g av

aila

ble,

eith

er th

roug

h a

new

ver

sion

of t

he B

ellw

in S

chem

e or

from

cen

tral g

over

nmen

t.

Cle

vela

nd E

mer

genc

y Pl

anni

ng

Uni

t, C

C E

V 5

9, q

uest

ion

10

If th

e em

erge

ncy

is a

ffec

ting

the

regi

on so

seve

rely

that

the

Min

iste

r has

dec

ided

it is

nec

essa

ry to

app

ly

emer

genc

y po

wer

s, th

en it

shou

ld b

e a

dem

ocra

tical

ly e

lect

ed M

inis

ter w

ho c

hairs

the

stra

tegi

c de

cisi

on m

akin

g gr

oup

and

is su

bseq

uent

ly a

ccou

ntab

le fr

o th

e ac

tions

take

n, ra

ther

than

an

appo

inte

d of

ficia

l suc

h as

a C

hief

C

onst

able

. Th

e w

hole

con

cept

of a

regi

onal

tier

is fl

awed

, prim

arily

bec

ause

the

Gov

ernm

ent O

ffic

es o

f the

Reg

ion,

do

not,

in fa

ct, h

ave

dire

ct d

ay-to

-day

con

trol o

f cen

tral G

over

nmen

t res

ourc

es to

brin

g to

the

resp

onse

. NC

CP

can

only

th

ink

of tw

o ex

ampl

es o

f exi

stin

g ar

rang

emen

ts w

here

ther

e is

alre

ady

sign

ifica

nt in

tegr

atio

n of

cen

tral

gove

rnm

ent a

nd lo

cal r

esou

rces

– ra

diat

ion

rele

ase

from

a n

ucle

ar p

ower

stat

ion

and

a m

ajor

terr

oris

t/ ho

stag

e si

tuat

ion.

In b

oth

case

s the

re is

no

‘reg

iona

l’ ro

le a

t all.

Nat

iona

l Cou

ncil

for C

ivil

Prot

ectio

n, C

C E

V 7

6, q

uest

ions

10

and

11

23

Dur

atio

n Em

erge

ncy

pow

ers

will

hav

e a

life

of 3

0 da

ys b

efor

e la

psin

g or

requ

iring

rene

wal

. Cat

egor

y 2

resp

onde

rs m

ay

Uni

ted

Util

ities

, CC

EV

73,

179

have

bee

n re

quire

d un

der s

uch

pow

ers

to ta

ke a

ctio

ns th

at a

re c

ontra

ry to

nor

mal

regu

latio

ns a

nd g

ood

prac

tice.

Th

is c

ould

res

ult

in o

pera

tiona

l co

mm

itmen

ts (

for

exam

ple,

ins

talla

tion

of u

tility

ass

ets)

tha

t it

is p

hysi

cally

im

poss

ible

to d

e-co

mm

issi

on r

apid

ly s

houl

d th

e em

erge

ncy

pow

ers

not b

e re

new

ed. I

t is

not c

lear

wha

t leg

al

prot

ectio

n ex

ists

for

Cat

egor

y 2

resp

onde

rs i

n su

ch c

ircum

stan

ces,

agai

nst

the

resu

mpt

ion

norm

al s

tatu

tes,

regu

latio

ns a

nd st

anda

rds.

ques

tion

4

23 (4

) …

the

new

re

gula

tions

shal

l, un

less

revo

ked,

co

ntin

ue in

forc

e as

if

mad

e by

virt

ue o

f the

ne

w p

rocl

amat

ion

or

orde

r (irr

espe

ctiv

e of

th

e pr

ovis

ion

of

sect

ion

20 b

y vi

rtue

of w

hich

they

wer

e m

ade)

.

The

stro

ng im

plic

atio

n in

this

cla

use

is th

at re

gula

tions

will

con

tinue

in fo

rce

with

out t

he n

eed

to b

e ap

prov

ed

by P

arlia

men

t. Th

us P

arlia

men

t los

es th

e fo

rmal

pow

er to

scru

tinis

e th

e go

vern

men

t’s c

laim

that

the

regu

latio

ns

as is

sued

con

tinue

to b

e ne

eded

, eve

n th

ough

the

natu

re o

f the

em

erge

ncy

may

hav

e ch

ange

d.

Prof

esso

r K D

Ew

ing,

JC E

V 2

, pa

ras 1

3 an

d 14

The

poss

ibili

ty o

f an

inde

finite

rene

wal

of a

pro

clam

atio

n or

regu

latio

ns u

nder

cla

use

23(3

)-(4

), al

beit

subj

ect t

o Pa

rliam

enta

ry s

crut

iny,

is d

ispr

opor

tiona

te. I

f an

exte

nded

per

iod

of e

mer

genc

y ex

ists

(ie.

in e

xces

s of

30

days

) th

ere

is n

eces

saril

y tim

e to

deb

ate

and

pass

(te

mpo

rary

) pr

imar

y re

gula

tions

. Th

is i

s m

ore

dem

ocra

tic t

han

repe

ated

mon

thly

rene

wal

s.

Libe

rty, J

C E

V 1

4, p

ara

25

24

(1)

and

(2)

If H

er M

ajes

ty m

akes

a

proc

lam

atio

n un

der

sect

ion

18 th

e Se

cret

ary

of S

tate

sh

all a

s soo

n as

is

reas

onab

ly

prac

ticab

le n

otify

–

This

cla

use

shou

ld re

quire

imm

edia

te n

otifi

catio

n –

the

Lord

Cha

ncel

lor a

nd S

peak

er o

f the

Hou

se o

f Com

mon

s ar

e al

way

s ava

ilabl

e.

Libe

rty, J

C E

V 1

4, p

ara

31

24 (6

) W

here

regu

latio

ns

are

mad

e un

der

sect

ion

21 (b

y vi

rtue

of a

ny p

rovi

sion

of

sect

ion

20) t

he

Secr

etar

y of

Sta

te

shal

l as s

oon

as is

re

ason

ably

pr

actic

able

lay

them

This

cla

use

shou

ld re

quire

the

Secr

etar

y of

Sat

e to

lay

the

regu

latio

ns b

efor

e Pa

rliam

ent b

y th

e tim

e it

mee

ts –

es

peci

ally

sinc

e or

al d

irect

ions

und

er th

e re

gula

tions

are

per

mis

sibl

e.

Libe

rty, J

C E

V 1

4, p

ara

31

180

befo

re P

arlia

men

t. 24

(7)

Reg

ulat

ions

laid

un

der s

ubse

ctio

n (6

) sh

all l

apse

at t

he e

nd

of th

e pe

riod

of se

ven

days

beg

inni

ng w

ith

the

date

of l

ayin

g un

less

dur

ing

that

pe

riod

each

Hou

se o

f Pa

rliam

ent p

asse

s a

reso

lutio

n ap

prov

ing

the

regu

latio

ns

Parli

amen

tary

pow

er o

ver

the

regu

latio

ns la

id is

dim

inis

hed

to ‘

acce

pt o

r re

ject

’ w

here

as u

nder

s.2

(4)

of th

e Em

erge

ncy

Pow

ers

Act

192

0, t

he r

egul

atio

ns c

an b

y re

solu

tion

of b

oth

Hou

ses

of P

arlia

men

t be

add

ed t

o,

alte

red

or re

voke

d.

It m

ay b

e be

tter

to e

nabl

e pa

rliam

enta

ry a

men

dmen

t of t

he te

xt o

f reg

ulat

ions

. Thi

s w

ould

requ

ire a

ffor

ding

a

shor

ter d

ebat

e th

an o

n B

ills,

but e

nabl

e on

e lo

nger

that

the

usua

l max

imum

90

min

utes

on

regu

latio

ns.

Dav

id B

onne

r, JC

EV

1, p

ara

11r

25

Hum

an R

ight

s Act

It

does

not

see

m c

orre

ct to

exc

lude

hum

an ri

ghts

to e

nabl

e le

gisl

atio

n to

be

enac

ted,

esp

ecia

lly w

here

pro

visi

on

alre

ady

exis

ts fo

r hum

an ri

ghts

to b

e su

spen

ded

in th

e ev

ent o

f a p

ublic

em

erge

ncy

whi

ch th

reat

ens

the

life

of

the

natio

n as

a w

hole

.

Adu

r Dis

trict

Cou

ncil,

CC

EV

77,

qu

estio

n 17

Man

y of

the

right

s pro

tect

ed b

y th

e H

uman

Rig

hts A

ct m

ay b

e su

spen

ded

whe

n th

ere

is a

pub

lic e

mer

genc

y th

at

thre

aten

s th

e lif

e of

the

natio

n. T

here

fore

em

erge

ncy

regu

latio

ns s

houl

d be

trea

ted

as s

econ

dary

legi

slat

ion

and

subj

ect t

o in

junc

tion.

Torb

ay C

ounc

il, C

C E

V 4

8,

ques

tion

17

This

wou

ld re

mov

e an

impo

rtant

pro

tect

ion.

LF

EPA

, CC

EV

17,

que

stio

n 17

Th

ere

is n

o ca

se f

or th

is, p

artic

ular

ly a

s th

e re

gula

tions

hav

e ye

t to

draf

ted

and

scru

tinis

ed. T

he G

over

nmen

t m

ust i

nclu

de a

ny d

etai

l in

the

Bill

if it

wis

hes t

o be

trea

ted

as p

rimar

y le

gisl

atio

n.

Ian

Loug

hbor

ough

, CC

EV

45,

ap

pend

ix A

17

It is

inap

prop

riate

with

pow

ers

so v

ast a

nd g

rave

as

envi

sage

d to

see

k to

neu

ter t

he c

ourts

. It i

s im

porta

nt th

at

they

sho

uld

be a

vaila

ble

at le

ast t

o en

forc

e th

e lim

its o

n ru

le-m

akin

g po

wer

s se

t out

in c

laus

e 21

(4).

They

are

un

likel

y to

sec

ond-

gues

s th

e go

vern

men

t on

the

exis

tenc

e of

an

emer

genc

y. T

his

clau

se g

ives

the

Gov

ernm

ent

an e

xem

ptio

n no

t af

ford

ed t

he v

ast

maj

ority

of

rule

s m

ade

unde

r st

atut

ory

auth

ority

, inc

ludi

ng t

hose

of

the

Scot

tish

and

Nor

ther

n Ir

elan

d Pa

rliam

ents

. Con

side

ratio

n co

uld

be g

iven

to d

eplo

ying

a ‘s

unse

t’ cl

ause

, whe

re

the

legi

slat

ion

expi

res o

n a

parti

cula

r dat

e, re

quiri

ng, i

f the

pow

ers a

re to

be

reta

ined

, the

ena

ctm

ent o

f the

sam

e or

new

pro

visi

ons.

(ren

ewal

deb

ates

eve

ry fi

ve o

r ten

yea

rs, a

nd ‘s

unse

t’ af

ter 3

0 ye

ars)

.

Dav

id B

onne

r, JC

EV

1, p

aras

18,

19

and

21.

It is

a tr

uly

rem

arka

ble

prop

osal

that

a S

ecre

tary

of S

tate

’s u

ttera

nces

cou

ld le

gally

bec

ome

stat

utes

. If

the

Gov

ernm

ent’s

rea

l in

tent

ion

in a

n em

erge

ncy

is t

o se

ek t

o en

act

regu

latio

ns w

hich

are

Con

vent

ion

inco

mpa

tible

, thi

s sho

uld

be o

vertl

y do

ne ra

ther

than

forc

ing

the

citiz

en to

brin

g ur

gent

lega

l pro

ceed

ings

dur

ing

an e

mer

genc

y to

pro

tect

his

or h

er fu

ndam

enta

l rig

hts.

Ther

e is

an

esta

blis

hed,

rapi

d m

echa

nism

for d

erog

atio

n fr

om th

e C

onve

ntio

n un

der a

rticl

e 15

.

Libe

rty, J

C E

V 1

4, p

aras

32

and

35

The

cour

ts i

n th

is c

ount

ry h

ave

been

ext

rem

ely

com

plia

nt i

n em

erge

ncie

s in

the

pas

t, an

d th

e G

over

nmen

t w

ould

be

hard

pre

ssed

to g

ive

an e

xam

ple

whe

re in

suc

h ci

rcum

stan

ces

the

liber

ty o

f the

indi

vidu

al w

as s

how

n Pr

ofes

sor K

D E

win

g, JC

EV

2,

para

16

181

disp

ropo

rtion

ate

conc

ern.

It i

s im

porta

nt to

not

e th

at C

onve

ntio

n rig

hts

are

heav

ily q

ualif

ied

and

wou

ld a

llow

fo

r so

me

dilu

tion

of s

tand

ards

whe

n th

ere

is a

gen

uine

em

erge

ncy.

Why

doe

s th

e G

over

nmen

t fe

el t

hat

prov

isio

n of

this

kin

d fa

ils to

pro

vide

the

flexi

bilit

y th

at it

mig

ht n

eed

in a

n em

erge

ncy?

Wha

t ste

ps d

oes

the

Gov

ernm

ent h

ave

in m

ind

to ta

ke in

regu

latio

ns th

at w

ould

fall

foul

of t

he H

uman

Rig

hts A

ct?

26(4

)(b

) B

ut –

(b) a

failu

re to

sa

tisfy

a re

quire

men

t to

con

sult

shal

l not

af

fect

the

valid

ity o

f re

gula

tions

As d

rafte

d th

is c

laus

e pr

eclu

des i

nval

idat

ion

for a

ny fa

ilure

to c

onsu

lt. T

he p

olic

y in

tent

was

for s

uch

prec

lusi

on

only

to h

ave

effe

ct w

here

con

sulta

tion

as d

ispe

nsed

with

no

grou

nds

of u

rgen

cy (i

.e. w

here

the

pow

er in

cla

use

26(4

)(a)

was

exe

rcis

ed).

The

para

grap

h sh

ould

be

amen

ded

to g

ive

effe

ct to

that

nar

row

er in

tent

, to

read

: “(b

) w

here

that

pow

er is

exe

rcis

ed, t

hat p

artic

ular

failu

re to

con

sult

shal

l not

aff

ect t

he v

alid

ity o

f reg

ulat

ions

.”

Dav

id B

onne

r, JC

EV

1, p

ara

17

27

Proc

edur

e R

egul

atio

ns m

ade

unde

r sec

tion

21 sh

all

be m

ade

by st

atut

ory

inst

rum

ent (

whe

ther

or

not

mad

e by

Ord

er

in C

ounc

il).

Is it

app

ropr

iate

for r

egul

atio

ns to

be

mad

e by

sta

tuto

ry in

stru

men

t in

the

light

of t

he c

onst

rain

ts th

is p

lace

s on

th

eir a

men

dmen

t? T

echn

ical

ly, r

egul

atio

ns m

ade

unde

r the

192

0 A

ct a

re n

ot s

tatu

tory

inst

rum

ents

bec

ause

the

1920

Act

exc

lude

d th

e ap

plic

atio

n of

the

Rul

es P

ublic

atio

n A

ct 1

893

(see

Sta

tuto

ry I

nstru

men

ts A

ct 1

946,

s.1

(2))

, alth

ough

in p

ract

ice

they

hav

e be

en n

umbe

red

and

prin

ted

as su

ch.

Prof

esso

r G M

orris

, JC

EV

5, p

ara

II

Sche

dule

1

Cat

egor

y 1

Res

pond

ers

[lead

ersh

ip]

It is

not

cle

ar w

ho h

as th

e pr

imar

y re

spon

sibi

lity

for l

eadi

ng a

nd c

oord

inat

ing

thos

e or

gani

satio

ns g

roup

ed a

s C

ateg

ory

1 re

spon

ders

. Thi

s wou

ld b

e be

st c

arrie

d ou

t at l

ocal

aut

horit

y le

vel g

iven

thei

r rol

e in

com

mun

ity

lead

ersh

ip.

Cle

ar re

spon

sibi

lity

shou

ld b

e pl

aced

on

one

of th

e C

ateg

ory

1 re

spon

ders

for j

oint

wor

king

and

mul

ti-ag

ency

pl

anni

ng.

Dr R

odne

y D

ay, U

nive

rsity

of

Her

tford

shire

, CC

EV

18,

par

as 4

-5

The

polic

e sh

ould

be

give

n re

spon

sibi

lity

for c

oord

inat

ing

civi

l pro

tect

ion

and

resi

lienc

e pl

anni

ng, a

s th

ey a

re

alre

ady

resp

onsi

ble

for

coor

dina

ting

the

mul

ti-ag

ency

res

pons

e in

the

vas

t m

ajor

ity o

f em

erge

ncie

s an

d th

e Lo

cal R

esili

ence

For

ums a

re to

be

esta

blis

hed

in P

olic

e Fo

rce

area

s.

Ian

Loug

hbor

ough

, CC

EV

45,

pa

ra 5

Lead

org

anis

atio

ns w

ithin

Cat

egor

y 1

shou

ld b

e id

entif

ied

to b

e re

spon

sibl

e fo

r a)

coo

rdin

atio

n of

em

erge

ncy

prep

ared

ness

– lo

cal a

utho

ritie

s wou

ld b

e w

ell p

lace

d to

pro

vide

the

focu

s for

this

w

here

thei

r bou

ndar

ies c

oinc

ide

with

the

polic

e. T

his w

ould

be

prob

lem

atic

whe

re a

pol

ice

boun

dary

incl

udes

a

num

ber o

f Cat

egor

y 1

loca

l aut

horit

ies.

b)

coo

rdin

atio

n of

em

erge

ncy

resp

onse

– in

mos

t em

erge

ncie

s the

pol

ice

prov

ide

this

coo

rdin

atio

n an

d le

ader

ship

thro

ugh

the

Stra

tegi

c C

oord

inat

ion

Gro

up. P

artn

er o

rgan

isat

ions

shou

ld b

e re

quire

d to

resp

ond

to a

n em

erge

ncy

as d

irect

ed b

y th

is S

trate

gic

Coo

rdin

atin

g G

roup

. c

) coo

rdin

atio

n of

the

reco

very

follo

win

g an

em

erge

ncy

– th

is n

orm

ally

falls

to lo

cal a

utho

ritie

s.

Surr

ey P

olic

e, C

C E

V 4

2, p

aras

3a

and

b, 4

[L

ocal

aut

horit

ies]

In

clud

e th

e th

ird ti

er o

f loc

al g

over

nmen

t – th

e to

wn

and

paris

h co

unci

ls. E

very

tow

n an

d pa

rish

coun

cil h

as a

pa

rish

hall

and

som

etim

es o

ther

bui

ldin

gs a

t the

ir di

spos

al. M

ost h

ave

was

hing

and

toile

t fac

ilitie

s. If

ther

e w

ere

to b

e a

mas

s ev

acua

tion

from

cen

tral L

ondo

n, th

e to

wn

and

paris

h co

unci

ls c

ould

ther

efor

e as

sist

in h

elpi

ng to

Fran

k Pa

rker

, Met

ropo

litan

Pol

ice,

C

C E

V 1

2, p

ara

3-4

182

prov

ide

valu

able

reso

urce

s and

shel

ter i

n th

e fo

rm o

f a sh

ort t

erm

refu

ge fo

r dis

plac

ed p

erso

ns.

Incl

ude

the

term

‘Uni

tary

Dis

trict

Cou

ncil’

in th

e lis

t of C

ateg

ory

1 re

spon

ders

in o

rder

to m

ore

clea

rly d

efin

e th

e re

spon

sibi

litie

s of t

he v

ario

us ti

ers o

f gov

ernm

ent t

hat e

xist

with

in th

e C

ount

y.

Esse

x A

utho

ritie

s, C

C E

V 1

4, p

art

2, q

uest

ion

2, p

ara

3

Th

e D

istri

ct C

ounc

il se

eks

bette

r def

initi

on f

or th

e re

spon

sibi

litie

s w

ithin

eac

h ca

tego

ry. I

t can

not s

uppo

rt th

e vi

ew t

hat

no a

dditi

onal

res

ourc

es a

re r

equi

red

to m

eet

the

wid

er s

cope

and

pot

entia

lly h

ighe

r st

anda

rds

envi

sage

d by

the

Bill

. Th

e dr

aft

Bill

, as

dra

wn,

and

with

the

pro

spec

t of

reg

ulat

ions

tha

t de

ny C

ateg

ory

1 re

spon

se, e

ffec

tivel

y m

akes

dis

trict

s Cat

egor

y 2

resp

onde

rs, n

otw

ithst

andi

ng th

eir i

nclu

sion

in C

ateg

ory

1.

Roc

hfor

d D

istri

ct C

ounc

il, C

C E

V

22, p

art 1

par

a 2

and

part

2 pa

ra 2

The

draf

t Bill

pro

vide

s fo

r reg

ulat

ions

to b

e m

ade

whi

ch w

ill a

llow

cou

nty

coun

cils

to p

lan

on th

e ba

sis

of th

e fu

ll ra

nge

of lo

cal a

utho

rity

func

tions

for

thei

r ar

ea, i

nclu

ding

thos

e of

the

dist

ricts

. Thi

s ef

fect

ivel

y de

mot

es

dist

ricts

to C

ateg

ory

2 re

spon

der.

Uttl

esfo

rd D

istri

ct C

ounc

il, C

C

EV8,

que

stio

n 2

The

prop

osal

that

cou

nty

coun

cils

sho

uld

take

full

resp

onsi

bilit

y fo

r loc

al a

utho

rity

civi

l pro

tect

ion

plan

ning

in

thei

r ar

ea i

s un

wor

kabl

e. C

ount

y C

ounc

ils s

houl

d ha

ve a

res

pons

ibili

ty t

o co

ordi

nate

loc

al a

utho

rity

civi

l pr

otec

tion

and

the

BC

M w

ork

with

the

com

mun

ity in

thei

r are

a. T

hey

shou

ld a

lso

prov

ide

advi

ce, t

rain

ing

and

exer

cisi

ng th

at is

ofte

n m

ore

effic

ient

ly d

eliv

ered

acr

oss t

heir

area

from

a si

ngle

em

erge

ncy

plan

ning

team

.

Ian

Loug

hbor

ough

, CC

EV

45,

pa

ra 7

Und

er th

e pr

opos

als,

coun

ties

and

dist

ricts

will

eac

h ha

ve th

e sa

me

basi

c re

spon

sibi

litie

s, w

hich

cou

ld re

sult

in

conf

lictin

g ar

rang

emen

ts.

Not

tingh

am C

ity C

ounc

il, C

C E

V

49, q

uest

ion

2

Sh

ire d

istri

cts

shou

ld b

e in

Cat

egor

y 1.

How

ever

, reg

ulat

ions

will

nee

d to

def

ine

wha

t is

mea

nt b

y th

e ‘lo

cal

auth

ority

civ

il pr

otec

tion

plan

ning

’ rol

e th

at c

ount

y co

unci

ls w

ill u

nder

take

on

beha

lf of

the

dist

rict c

ounc

ils in

th

eir a

rea.

Thi

s sho

uld

surr

ound

the

area

s of

repr

esen

ting,

coo

rdin

atin

g, tr

aini

ng a

nd a

dvis

ing

so th

at th

ere

is n

o du

plic

atio

n of

wor

k in

thei

r ar

ea. B

ecau

se th

e su

ppor

t of

chie

f of

ficer

s an

d se

rvic

e m

anag

ers

is v

ital d

istri

cts

shou

ld st

ill b

e re

quire

d to

pla

n, b

ut in

coo

pera

tion

with

, and

und

er th

e gu

idan

ce o

f the

cou

nty

coun

cil.

East

Sus

sex

Cou

nty

Cou

ncil,

CC

EV

56,

que

stio

n 3

Ther

e m

ay b

e a

case

for

rec

lass

ifyin

g di

stric

t cou

ncils

as

Cat

egor

y 2

resp

onde

rs, w

ith a

cle

ar r

equi

rem

ent t

o en

sure

that

thei

r em

erge

ncy

plan

ning

pro

cedu

res a

re a

ligne

d w

ith th

ose

of c

ount

y co

unci

ls.

EDF

Ener

gy, C

C E

V 7

5, q

uest

ion

3

Th

e B

ill p

lace

s a d

uty

upon

the

dist

rict c

ounc

il bu

t doe

s not

pro

vide

any

fund

ing;

it th

eref

ore

fails

to a

ddre

ss th

e as

pect

of o

pera

tiona

lly e

ffec

tive

or fi

nanc

ially

eff

icie

nt. C

ateg

ory

1 sh

ould

not

incl

ude

dist

ricts

or b

orou

ghs.

A

dur D

istri

ct C

ounc

il, C

C E

V 7

7,

ques

tions

2 a

nd 3

[Add

ition

al b

odie

s]

Hos

pita

l Tru

sts

shou

ld b

e in

clud

ed a

s ei

ther

Cat

egor

y 1

or 2

resp

onde

rs. C

onsi

dera

tion

shou

ld a

lso

be g

iven

to

incl

udin

g ot

her t

rans

port

grou

ps, e

g. b

us a

nd tr

am o

pera

tors

, Tra

nspo

rt fo

r Lon

don

etc

and

also

pet

rol a

nd d

iese

l di

strib

utor

s as

Cat

egor

y 2

resp

onde

rs, g

iven

thei

r ab

ility

to c

ause

wid

espr

ead

disr

uptio

n, in

clud

ing

thre

ats

to

heal

th a

nd sa

fety

of t

he p

opul

atio

n, in

the

even

t of p

rolo

nged

dis

rupt

ion.

Bar

net L

ondo

n B

orou

gh, C

C E

V

20, p

ara

2

Hea

lth se

rvic

e pr

ovid

ers s

houl

d be

incl

uded

as C

ateg

ory

1 re

spon

ders

. K

irkle

es M

etro

polit

an C

ounc

il, C

C

EV 2

4, p

ara

a

To

ens

ure

invo

lvem

ent i

n jo

int p

lann

ing,

Prim

ary

Car

e an

d A

cute

Hos

pita

l Tru

sts,

and

the

Hea

lth P

rote

ctio

n A

genc

y sh

ould

be

adde

d to

Cat

egor

y 1.

D

ue to

the

intro

duct

ion

of th

e en

viro

nmen

tal d

imen

sion

to th

e de

finiti

on o

f an

emer

genc

y, E

nglis

h N

atur

e sh

ould

als

o be

add

ed.

Dev

on C

ount

y C

ounc

il, C

C E

V 5

0,

ques

tion

3

183

Wal

es’

Am

bula

nce

Serv

ice,

Tru

sts,

Loca

l H

ealth

Boa

rds

and

the

Nat

iona

l Pu

blic

Hea

lth S

ervi

ce s

houl

d be

co

nsid

ered

as C

ateg

ory

1 re

spon

ders

, as t

he d

utie

s req

uire

d in

the

draf

t Bill

are

thos

e cu

rren

tly b

eing

del

iver

ed.

Nor

th W

ales

Hea

lth E

mer

genc

y Pl

anni

ng G

roup

, CC

EV

51,

par

a 3

Sele

cted

vol

unta

ry o

rgan

isat

ions

shou

ld b

e in

clud

ed in

a th

ird c

ateg

ory

of re

spon

ders

or w

ithin

the

Cat

egor

y 1

mem

bers

hip.

Pa

rish

and

Tow

n co

unci

ls sh

ould

be

incl

uded

in th

e co

nsul

tatio

n pr

oces

s and

invo

lved

in b

oth

the

prep

arat

ion

of

and

exec

utio

n of

em

erge

ncy

plan

s.

Civ

il D

efen

ce A

ssoc

iatio

n, C

C E

V

67, q

uest

ion

3

‘Pol

ice

Forc

es’ s

houl

d al

so in

clud

e th

e B

ritis

h Tr

ansp

ort P

olic

e, th

e U

KA

EA C

onst

abul

ary

and

the

Min

istry

of

Def

ence

Pol

ice.

The

mos

t gla

ring

omis

sion

is th

at o

f ce

ntra

l Gov

ernm

ent,

who

sho

uld

be in

tegr

ated

with

the

loca

l res

pons

e an

d pl

anni

ng o

rgan

isat

ion

but n

ot n

eces

saril

y su

perio

r to

it.

Bre

nt C

ounc

il, C

C E

V 6

8, q

uest

ion

3

Port

Polic

e sh

ould

be

incl

uded

as C

ateg

ory

1 re

spon

ders

. B

risto

l City

Cou

ncil,

CC

EV

69,

qu

estio

n 3

The

Red

Cro

ss sh

ould

be

incl

uded

as a

Cat

egor

y 1

resp

onde

r in

the

Bill

, giv

en th

e le

gal f

unct

ions

est

ablis

hed

unde

r its

Roy

al C

harte

r and

the

Gen

eva

Con

vent

ions

. Th

e fin

al le

gisl

atio

n sh

ould

pla

ce a

stat

utor

y du

ty o

n C

ateg

ory

1 re

spon

ders

to fu

lly in

volv

e re

leva

nt v

olun

tary

or

gani

satio

ns in

all

aspe

cts o

f civ

il pr

otec

tion.

The

reso

urce

s of t

he v

olun

tary

sect

or a

re su

bsta

ntia

l and

will

be

need

ed in

the

even

t of a

nat

iona

l em

erge

ncy.

A re

quire

men

t to

enga

ge w

ith th

em is

an

esse

ntia

l par

t of t

he

prim

ary

legi

slat

ion.

Brit

ish

Red

Cro

ss, C

C E

V 9

1,

para

s 2 a

nd 3

The

natio

n’s

finan

cial

con

trolle

rs (

such

as

the

Ban

k of

Eng

land

, St

ock

Exch

ange

and

Fin

anci

al S

ervi

ces

Aut

horit

y) s

houl

d be

inc

lude

d in

the

cat

egor

ies,

as a

ny i

ncid

ent

that

red

uced

the

UK

’s a

bilit

y to

act

ivel

y pa

rtici

pate

in th

e w

orld

’s fi

nanc

ial m

arke

ts w

ould

hav

e a

serio

us im

pact

.

City

of L

ondo

n Po

lice,

CC

EV

53,

qu

estio

n 3

[C

entra

l and

regi

onal

go

vern

men

t] Le

ad G

over

nmen

t dep

artm

ents

shou

ld b

e id

entif

ied

with

in p

arts

1 a

nd 2

of S

ched

ule

1.

Kirk

lees

Met

ropo

litan

Cou

ncil,

CC

EV

24,

que

stio

n 3

Mem

bers

hip

of C

ateg

ory

1 sh

ould

incl

ude

Cen

tral G

over

nmen

t, Sc

ottis

h A

ssem

bly,

Wel

sh A

ssem

bly,

Nor

ther

n Ir

elan

d A

ssem

bly,

reg

ions

of

Engl

and,

inc

ludi

ng L

ondo

n, P

CTs

, H

PAs

and

Hea

lth A

cute

Tru

sts.

Thei

r in

clus

ion

is im

pera

tive

in o

rder

that

the

lead

bod

y in

any

dis

aste

r is

awar

e of

its

lega

l res

pons

ibili

ty a

nd th

e B

ill

shou

ld n

ot a

llow

for t

he o

pt-o

ut o

f res

pons

ibili

ty fo

r any

tier

of G

over

nmen

t who

may

be

taki

ng th

e le

ad.

Dud

ley

Met

ropo

litan

Bor

ough

C

ounc

il, C

C E

V 4

7, q

uest

ion

3

The

role

and

res

pons

ibili

ty o

f na

tiona

l gov

ernm

ent s

houl

d be

incl

uded

. Thi

s w

ill h

elp

clar

ify th

e re

latio

nshi

p be

twee

n al

l res

pond

ers.

His

tory

has

sho

wn

that

the

lead

gov

ernm

ent d

epar

tmen

t con

cept

has

rar

ely

wor

ked

in

prac

tice

and

that

civ

il pr

otec

tion

is to

o im

porta

nt a

n ar

ea o

f pu

blic

life

for

sta

tuto

ry r

espo

nsib

ilitie

s no

t to

be

impo

sed

on a

ny o

f the

age

ncie

s whi

ch h

ave

key

role

s in

crea

ting

a ro

bust

cul

ture

of r

esili

ence

.

Bre

nt C

ounc

il, C

C E

V 6

8, q

uest

ion

2

It se

ems

stra

nge

that

Gov

ernm

ent D

epar

tmen

ts a

re n

ot in

clud

ed in

eith

er c

ateg

ory

parti

cula

rly in

ligh

t of

the

perc

eive

d ro

le o

f the

Reg

iona

l Res

ilien

ce te

ams a

nd th

e pr

oble

ms i

n th

e re

cent

pas

t e.g

. foo

t and

mou

th.

Cal

derd

ale

Cou

ncil,

CC

EV

57,

qu

estio

n 3

It is

sur

pris

ing

that

Gov

ernm

ent d

epar

tmen

ts h

ave

“res

pons

ibili

ties

to p

lan,

pre

pare

, tra

in a

nd e

xerc

ise”

, yet

are

no

t to

be

incl

uded

in

the

draf

t B

ill.

Sim

ilarly

, ot

her

than

the

pow

er t

o ap

poin

t R

egio

nal

and

Emer

genc

y K

irkle

es M

etro

polit

an C

ounc

il, C

C

EV 2

4, q

uest

ion

3

184

Coo

rdin

ator

s, th

ere

is n

o st

atut

ory

duty

on

the

new

regi

onal

adm

inis

trativ

e tie

r to

unde

rtake

any

of t

he fu

nctio

ns

appl

ied

to C

ateg

ory

1 an

d 2

resp

onde

rs

Whi

lst G

over

nmen

t Dep

artm

ents

hav

e fo

rmer

ly e

njoy

ed C

row

n Im

mun

ity, t

he w

ithdr

awal

of t

hat s

tatu

s now

ra

ises

the

ques

tion

of w

heth

er it

wou

ld b

e ap

prop

riate

for n

atio

nal l

egis

latio

n to

impo

se d

utie

s on

them

too,

as

an in

tegr

al p

art o

f a se

amle

ss o

rgan

isat

ion.

Sout

h Ea

st R

egio

nal R

esili

ence

Fo

rum

, [ ]

Cen

tral

and

regi

onal

gov

ernm

ent

are

cons

picu

ous

by t

heir

abse

nce

and

shou

ld a

ppea

r in

Cat

egor

y 1

to

stre

ngth

en t

he l

ead

depa

rtmen

t co

ncep

t. Th

e ab

senc

e of

Gov

ernm

ent

depa

rtmen

ts c

ontra

dict

s th

e et

hos

of

resp

onse

thro

ugh

the

Lead

Gov

ernm

ent d

epar

tmen

t prin

cipl

e.

Cer

edig

ion

Cou

nty

Cou

ncil,

CC

EV

85,

que

stio

n 3

Whi

lst G

over

nmen

t Dep

artm

ents

hav

e fo

rmer

ly e

njoy

ed C

row

n Im

mun

ity, t

he w

ithdr

awal

of

that

sta

tus

now

ra

ises

the

ques

tion

of w

heth

er it

wou

ld b

e ap

prop

riate

for n

atio

nal l

egis

latio

n to

impo

se d

utie

s on

them

too,

as

an in

tegr

al p

art o

f a se

amle

ss o

rgan

isat

ion.

Sout

h Ea

st R

egio

nal R

esili

ence

Fo

rum

[ ]

[M

ilita

ry]

The

mili

tary

sho

uld

be c

onsi

dere

d fo

r in

clus

ion

as a

Cat

egor

y 1

resp

onde

r, as

the

y ar

e al

read

y in

volv

ed i

n pl

anni

ng a

resp

onse

at l

ocal

and

regi

onal

leve

ls in

Wal

es, p

artic

ular

ly th

e C

ivil

Con

tinge

ncie

s R

apid

Rea

ctio

n Fo

rce

whi

ch is

spec

ifica

lly se

t up

to re

spon

d qu

ickl

y an

d ef

fect

ivel

y to

such

inci

dent

s.

Nor

th W

ales

Stra

tegi

c Em

erge

ncy

Plan

ning

Gro

up, C

C E

V 2

6, p

ara

9

The

mili

tary

shou

ld b

e in

clud

ed a

s a C

ateg

ory

1 or

2 re

spon

der,

as th

ey h

ave

a du

al ro

le in

the

civi

l co

ntin

genc

ies a

rena

- th

roug

h tra

ditio

nal M

AC

pro

cedu

res,

the

new

ly fo

rmed

CC

RF,

and

as p

ossi

ble

oper

ator

s as

airp

orts

or p

orts

. O

rgan

iser

s of l

arge

ven

ues,

such

as s

ports

stad

ia sh

ould

als

o be

con

side

red,

par

ticul

arly

giv

en th

e re

cent

pr

oble

ms a

t Kne

bwor

th a

nd S

ilver

ston

e C

OM

AH

site

ope

rato

rs sh

ould

be

incl

uded

, esp

ecia

lly in

Lon

don

whe

re C

OM

AH

site

s are

dea

lt w

ith th

roug

h LF

EPA

, pot

entia

lly le

adin

g to

a la

ck o

f lia

ison

at t

he le

vel.

The

med

ia sh

ould

als

o be

con

side

red

for i

nclu

sion

, giv

en th

eir p

ivot

al ro

le d

urin

g an

em

erge

ncy.

Lond

on B

orou

gh o

f Ric

hmon

d up

on T

ham

es, C

C E

V 6

1, q

uest

ion

3

[D

evol

ved

adm

inis

tratio

ns’

Whe

re d

oes t

he d

evol

ved

Wel

sh A

ssem

bly

Gov

ernm

ent f

it in

to th

e C

ateg

ory

1 an

d 2

listin

gs?

Shou

ld th

e W

elsh

A

ssem

bly

Gov

ernm

ent b

e lis

ted

as a

Cat

egor

y 1

resp

onde

r, as

it h

as r

espo

nsib

ility

for

key

fun

ding

on

heal

th,

ambu

lanc

es a

nd o

ther

serv

ices

.

Nor

th W

ales

Pol

ice,

CC

EV

28,

qu

estio

n 3

[F

lexi

bilit

y]

With

in th

e su

bseq

uent

regu

latio

ns, C

ateg

ory

1 re

spon

ders

shou

ld b

e ab

le to

nom

inat

e th

eir o

wn

Cat

egor

y 2

resp

onde

rs to

mee

t loc

al n

eeds

. Su

rrey

Pol

ice,

CC

EV

42,

par

as 3

a an

d b,

4

[A

dditi

onal

dut

ies]

Tw

o fu

rther

obl

igat

ions

sho

uld

be im

pose

d on

Cat

egor

y 1

resp

onde

rs, n

amel

y th

e re

quire

men

t to

exer

cise

pla

ns

and

the

requ

irem

ent t

o tra

in st

aff t

o en

able

thos

e pl

ans t

o be

via

ble.

A

CPO

, CC

EV

98,

que

stio

n 2

C

ateg

ory

2 R

espo

nder

s Th

ere

shou

ld b

e ju

st o

ne c

ateg

ory

(Cat

egor

y 1)

. Pra

ctic

al e

xper

ienc

e sh

ows t

hat a

num

ber o

f org

anis

atio

ns

cont

ribut

ing

to m

ulti-

agen

cy p

lans

, do

vast

ly m

ore

in te

rms o

f em

erge

ncy

plan

ning

than

mig

ht b

e co

nsid

ered

to

be re

quire

d un

der C

ateg

ory

2. It

wou

ld b

e un

fortu

nate

if o

rgan

isat

ions

, whi

ch h

ither

to c

o-op

erat

ed fu

lly, w

ere

able

to p

oint

to th

e le

gisl

atio

n as

a li

cenc

e to

redu

ce th

eir i

nput

.

Nat

iona

l Cou

ncil

for C

ivil

Prot

ectio

n, C

C E

V 7

6, q

uest

ion

2

185

[Add

ition

al d

utie

s]

All

Cat

egor

y 2

resp

onde

rs sh

ould

be

invo

lved

at t

he in

itial

pla

nnin

g st

age

– th

ey c

ould

then

con

tribu

te to

pl

anni

ng sc

enar

ios b

y ex

plai

ning

how

scen

ario

s im

pact

on

thei

r abi

lity

to su

ppor

t em

erge

ncy

and

civi

l pr

otec

tion

serv

ices

. Thi

s is c

urre

ntly

the

case

in N

ew Z

eala

nd.

Wilt

shire

Fire

Brig

ade,

CC

EV

32,

ch

apte

r 2, p

ara

8

Cat

egor

y 2

agen

cies

hav

e a

duty

to sh

are

info

rmat

ion

and

for b

usin

ess c

ontin

uity

, but

no

oblig

atio

n re

gard

ing

partn

ersh

ip w

orki

ng, a

ttend

ance

at e

xerc

ises

and

mee

tings

or t

o as

sist

Cat

egor

y 1

agen

cies

dur

ing

an

emer

genc

y.

Dud

ley

Met

ropo

litan

Bor

ough

C

ounc

il, C

C E

V 4

7, q

uest

ion

2 an

d 3

[E

mer

genc

y re

spon

ders

] N

AIR

, R

AD

SAFE

and

CH

EMSA

FE e

mer

genc

y re

spon

ders

sho

uld

be i

nvol

ved

with

in t

he l

ocal

pla

nnin

g pr

oces

s an

d ha

ve a

sta

tuto

ry re

quire

men

t for

mem

bers

hip

of lo

cal r

esili

ence

foru

ms.

They

sho

uld

be a

dded

to

the

list o

f Cat

egor

y 2

resp

onde

rs.

Nig

el F

urlo

ng, E

PO, U

K A

tom

ic

Ener

gy A

utho

rity,

CC

EV

2, p

ara

4

VA

S sh

ould

be

adde

d O

xfor

dshi

re C

ount

y C

ounc

il, C

C

EV 4

, par

a 49

[Loc

al a

utho

ritie

s]

Tow

n an

d Pa

rish

Cou

ncils

sho

uld

be a

dded

to

Cat

egor

y 2

resp

onde

rs,

as t

hey

have

a r

ole

to p

lay

in l

ocal

pl

anni

ng a

nd re

spon

se. T

hey

shou

ld h

ave

a re

quire

men

t to

assi

st th

e di

stric

t cou

ncil

(in te

rms

of d

evel

opin

g a

plan

and

ass

istin

g w

ith lo

cal k

now

ledg

e).

Uttl

esfo

rd D

istri

ct C

ounc

il, C

C

EV8,

que

stio

n 3

[N

HS]

Th

e N

atio

nal B

lood

tran

sfus

ion

serv

ice

shou

ld b

e ad

ded

to C

ateg

ory

2 re

spon

ders

. D

erek

Sco

ugal

, Fife

Con

stab

ular

y,

CC

EV

9, q

uest

ion

3

C

ateg

ory

2 re

spon

ders

shou

ld in

clud

e th

e H

ealth

Pro

tect

ion

Age

ncy

and

Prim

ary

Car

e Tr

usts

. R

eadi

ng B

orou

gh C

ounc

il, C

C E

V

38, q

uest

ion

3

H

ospi

tal T

rust

s and

the

BB

C sh

ould

be

incl

uded

as a

Cat

egor

y 2

resp

onde

r.

W

ands

wor

th B

orou

gh C

ounc

il, C

C

EV 4

1, q

uest

ion

3

[Vol

unta

ry]

Con

side

ratio

n sh

ould

be

give

n to

incl

udin

g so

me

volu

ntar

y or

gani

satio

ns.

Phili

p B

osto

ck, E

xete

r City

C

ounc

il, C

C E

V 1

3, q

uest

ion

3

Th

e dr

aft B

ill c

ould

impo

se a

dut

y to

invo

lve,

con

sult

and

train

‘Cat

egor

y 3’

resp

onde

rs –

the

volu

ntar

y se

ctor

. V

olun

tary

bod

ies

shou

ld n

ot h

ave

an im

pose

d du

ty, b

ut th

ey a

re a

vita

lly im

porta

nt p

art o

f ci

vil c

ontin

genc

y pl

anni

ng.

Wilt

shire

Fire

Brig

ade,

CC

EV

32,

ch

apte

r 2, p

ara

8

[T

rans

port]

In

clud

e th

e H

ighw

ays A

genc

y as

a C

ateg

ory

2 re

spon

der.

Her

efor

d an

d W

orce

ster

Com

bine

d Fi

re A

utho

rity,

CC

EV

23,

cha

pter

3

Bus

ope

ratin

g co

mpa

nies

and

/ or t

rans

port

auth

oriti

es w

ith b

us o

pera

ting

resp

onsi

bilit

ies

shou

ld b

e in

clud

ed a

s C

ateg

ory

2 re

spon

ders

. Airc

raft

oper

atin

g co

mpa

nies

shou

ld a

lso

be c

onsi

dere

d.

Kirk

lees

Met

ropo

litan

Cou

ncil,

CC

EV

24,

par

a b

and

ques

tion

3

Fe

rry

oper

ator

s oug

ht to

be

incl

uded

(unl

ess t

hey

alre

ady

are

unde

r ‘ha

rbou

r aut

horit

ies’

) B

risto

l City

Cou

ncil,

CC

EV

69,

qu

estio

n 3

Bus

and

coa

ch o

pera

tors

shou

ld b

e in

clud

ed in

Cat

egor

y 2.

Age

ncie

s tha

t are

not

list

ed in

eith

er C

ateg

ory

1 or

2

shou

ld, w

ith c

onse

nt o

f the

Loc

al R

esili

ence

For

um, b

e ad

opte

d (lo

cally

) on

a te

mpo

rary

or p

erm

anen

t bas

is if

ap

prop

riate

.

Iain

Ber

ry, M

id B

eds,

CC

EV

63,

qu

estio

n 3

186

Add

Eur

osta

r to

the

list o

f tra

in o

pera

tors

und

er th

e dr

aft B

ill.

Terr

y Sh

ea, C

C E

V 4

3

[Med

ia]

The

BB

C sh

ould

be

a C

ateg

ory

2 re

spon

der g

iven

thei

r vita

l rol

e in

issu

ing

publ

ic in

form

atio

n du

ring

a cr

isis

. W

ands

wor

th C

ounc

il, C

C E

V 2

5,

ques

tion

3

So

me

repr

esen

tatio

n of

the

broa

dcas

ting

and

med

ia o

rgan

isat

ions

shou

ld b

e in

clud

ed in

Cat

egor

y 2.

B

road

cast

ers

prov

ide

an e

ssen

tial

serv

ice

in w

arni

ng a

nd i

nfor

min

g th

e pu

blic

and

sho

uld

be c

onsi

dere

d as

po

tent

ial C

ateg

ory

2 re

spon

ders

.

Not

tingh

am C

ity C

ounc

il, C

C E

V

49, q

uest

ion

3 O

ftel,

CC

EV

116

, par

a 3

[M

ilita

ry]

As

Civ

il C

ontin

genc

y R

eact

ion

Forc

es a

re b

eing

est

ablis

hed,

the

Arm

ed F

orce

s sh

ould

be

incl

uded

as

Cat

egor

y 2

resp

onde

rs.

Torb

ay C

ounc

il, C

C E

V 4

8,

ques

tion

3

W

hils

t MO

D R

egul

ar F

orce

s co

uld

not b

e lis

ted,

the

new

rese

rve

forc

es’ C

ivil

Con

tinge

ncie

s R

eact

ion

Forc

es

have

bee

n cr

eate

d sp

ecifi

cally

and

sol

ely

to d

eal w

ith s

uch

task

s an

d co

uld

be in

clud

ed in

Cat

egor

y 2.

Whi

lst

Gov

ernm

ent D

epar

tmen

ts h

ave

form

erly

enj

oyed

Cro

wn

Imm

unity

, the

with

draw

al o

f tha

t sta

tus

now

rais

es th

e qu

estio

n of

whe

ther

it w

ould

be

appr

opria

te fo

r nat

iona

l leg

isla

tion

to im

pose

dut

ies

on th

em to

o, a

s an

inte

gral

pa

rt of

a se

amle

ss o

rgan

isat

ion.

Sout

h Ea

st R

egio

nal R

esili

ence

Fo

rum

, [ ]

The

mili

tary

shou

ld b

e in

clud

ed.

Dev

on C

ount

y C

ounc

il, C

C E

V 5

0,

ques

tion

3

[U

tiliti

es]

It co

uld

be a

rgue

d th

at th

e ut

ility

com

pani

es a

nd m

ajor

tran

spor

t und

erta

kers

shou

ld a

lso

be in

clud

ed in

C

ateg

ory

1, b

earin

g in

min

d th

eir i

mpo

rtanc

e to

the

natio

nal i

nfra

stru

ctur

e, p

artic

ular

ly in

an

emer

genc

y si

tuat

ion.

Cal

derd

ale

Cou

ncil,

CC

EV

57,

qu

estio

n 3

Elec

trici

ty g

ener

ator

s sho

uld

be sp

ecifi

cally

incl

uded

. W

igan

Cou

ncil,

CC

EV

72,

qu

estio

n 3

Oth

er g

as u

tility

org

anis

atio

ns s

houl

d be

inc

lude

d. T

he o

nly

gas

utili

ty i

dent

ified

is

Tran

sco,

whi

ch m

ay b

e in

tend

ed to

refle

ct T

rans

co’s

role

in p

rovi

ding

a n

atio

nal g

as e

mer

genc

y se

rvic

e. H

owev

er, o

ther

org

anis

atio

ns,

incl

udin

g U

nite

d U

tiliti

es, h

old

IGT

licen

ces f

or th

e op

erat

ion

of g

as d

istri

butio

n ne

twor

ks.

Uni

ted

Util

ities

, CC

EV

73,

qu

estio

n 2

It sh

ould

be

born

e in

min

d th

at th

e re

venu

es o

f mos

t util

ity c

ompa

nies

are

pric

e ca

pped

by

thei

r reg

ulat

ors

and,

in

thi

s co

ntex

t, w

e ar

e th

eref

ore

conc

erne

d th

at t

he B

ill m

akes

no

prov

isio

n fo

r co

st-r

ecov

ery

by t

hose

co

mpa

nies

in re

latio

n to

obl

igat

ions

that

may

be

plac

ed o

n th

em b

y or

und

er th

e ne

w fr

amew

ork.

EDF

Ener

gy, C

C E

V 7

5, q

uest

ion

2

Maj

or c

hem

ical

and

/ or

pip

elin

e co

mpa

nies

who

act

iviti

es h

ave

the

capa

city

to

crea

te a

n em

erge

ncy

or

com

poun

d th

e ef

fect

s of

a p

re-e

xist

ing

situ

atio

n sh

ould

bec

ome

Cat

egor

y 2

resp

onde

rs. C

ateg

ory

2 sh

ould

als

o in

clud

e th

e R

oad

Hau

lage

Ass

ocia

tion

and/

or H

ighw

ays

Age

ncy

and

orga

nisa

tions

tha

t ha

ve a

n em

erge

ncy

resp

onse

thr

ough

nat

iona

l sc

hem

es (

Nat

iona

l A

rran

gem

ents

for

Inc

iden

ts I

nvol

ving

Rad

ioac

tivity

(N

AIR

), R

AD

SAFE

and

CH

EMSA

FE).

Cle

vela

nd E

mer

genc

y Pl

anni

ng

Uni

t, C

C E

V 5

9, q

uest

ion

3

Con

side

ratio

n sh

ould

be

give

n to

all

nucl

ear

licen

sed

site

s be

ing

Cat

egor

y 2

Res

pond

ers.

This

cou

ld f

acili

tate

th

e in

tegr

atio

n of

exi

stin

g nu

clea

r em

erge

ncy

arra

ngem

ents

with

the

prop

osed

regi

onal

stru

ctur

e.

Brit

ish

Nuc

lear

Fue

ls p

lc, C

C E

V

146,

par

a 4

[P

rivat

e or

gani

satio

ns]

Priv

ate

hosp

itals

and

road

tran

spor

t sho

uld

be in

clud

ed in

Cat

egor

y 2.

Rai

lway

s sh

ould

incl

ude

priv

atel

y ow

ned

railw

ays.

Ther

e is

no

men

tion

of N

orw

ich

Inte

rnat

iona

l Airp

ort.

Nor

folk

Cou

nty

Cou

ncil,

CC

EV

96

, que

stio

n 3

187

Ther

e ar

e al

so p

artic

ular

org

anis

atio

ns w

hose

coo

pera

tion

may

be

vita

l to

com

preh

ensi

ve p

lann

ing,

such

as t

he

oper

ator

s of m

ajor

shop

ping

, lei

sure

and

spor

ting

com

plex

es. E

qual

ly, t

he c

oope

ratio

n of

the

orga

nise

rs o

f m

ajor

pub

lic e

vent

s is v

ital.

The

Ope

n G

olf,

Lond

on M

arat

hon,

Com

mon

wea

lth G

ames

and

Oly

mpi

cs a

re

rele

vant

. It w

ould

pro

babl

y be

bet

ter t

o co

py th

e ex

istin

g C

omm

unity

Saf

ety

legi

slat

ion,

whi

ch e

nabl

es a

loca

l au

thor

ity to

requ

ire th

e co

oper

atio

n of

any

org

anis

atio

n w

hich

it c

onsi

ders

has

a ro

le to

pla

y.

Nat

iona

l Cou

ncil

for C

ivil

Prot

ectio

n, C

C E

V 7

6, q

uest

ion

2

Cat

egor

y 2

shou

ld a

lso

incl

ude

a co

mm

erce

/ bus

ines

s rep

rese

ntat

ive.

D

udle

y M

etro

polit

an B

orou

gh

Cou

ncil,

CC

EV

47,

que

stio

n 2

and

3

O

rgan

isat

ions

that

sup

port

the

NH

S, in

clud

ing

phar

mac

eutic

al c

ompa

nies

, med

ical

gas

org

anis

atio

ns a

nd h

ealth

su

pply

org

anis

atio

n sh

ould

be

incl

uded

in C

ateg

ory

2, a

s the

y w

ould

be

heav

ily c

alle

d up

on in

resp

onse

to la

rge

disr

uptiv

e ch

alle

nges

.

Nor

th W

ales

Hea

lth E

mer

genc

y Pl

anni

ng G

roup

, CC

EV

51,

par

a 3

R

epea

ls e

xten

ding

on

ly to

Eng

land

and

W

ales

The

repe

al o

f th

e C

ivil

Def

ence

(G

rant

) Act

200

2 se

ems

to p

re-e

mpt

the

ques

tions

abo

ut R

SG v

ersu

s sp

ecifi

c gr

ant i

n th

e C

onsu

ltatio

n pa

per C

ateg

ory

1 lo

cal a

utho

ritie

s sho

uld

cont

inue

to b

e fu

nded

thro

ugh

spec

ific

gran

t, as

the

ser

vice

nee

ds t

o be

pro

tect

ed a

nd r

ing-

fenc

ed.

With

all

the

othe

r de

man

ds o

n lo

cal

auth

oriti

es c

ivil

cont

inge

ncie

s fu

ndin

g w

ill b

e ab

sorb

ed in

to o

ther

ser

vice

s or

func

tions

unl

ess

prot

ecte

d. F

undi

ng th

roug

h R

SG

will

not

be

trans

pare

nt.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

ara

22 a

nd 5

3

Ther

e is

a g

reat

dan

ger t

hat L

As,

parti

cula

rly in

the

curr

ent c

limat

e, w

ill d

iver

t fun

ding

to o

ther

are

as.

Gra

ham

Cha

plin

, EPO

, Bor

ough

of

Pool

e, C

C E

V 3

, par

a 7

R

egul

ator

y Im

pact

A

sses

smen

t Th

e R

IA d

oes

not

take

pro

per

acco

unt

of t

he w

ider

sco

pe o

f ris

k as

sess

men

t, bu

sine

ss c

ontin

uity

and

sca

le

cove

red

by th

e ne

w d

efin

ition

of e

mer

genc

y in

the

Bill

. Res

ourc

e re

quire

men

t mus

t tak

e in

to a

ccou

nt s

tand

ards

an

d ge

ogra

phic

al p

roxi

mity

to id

entif

ied

risk.

Uttl

esfo

rd D

istri

ct C

ounc

il, C

C E

V

8, q

uest

ion

6

The

rece

nt L

GA

sur

vey

of to

p tie

r Em

erge

ncy

Plan

ning

aut

horit

ies

show

s th

at th

e to

tal e

xpen

ditu

re o

f th

ese

auth

oriti

es is

ove

r £32

m fo

r Eng

land

and

Wal

es; t

hus

top

tier a

utho

ritie

s co

ntrib

ute

in e

xces

s of

£13

m o

ver a

nd

abov

e th

e G

rant

they

rece

ive

for t

heir

curr

ent a

ctiv

ities

. In

itial

eva

luat

ion

f a

surv

ey o

f Shi

re D

istri

ct C

ounc

ils, s

how

s th

at a

lthou

gh th

ey d

o no

t rec

eive

Civ

il D

efen

ce

Gra

nt,

virtu

ally

all

Dis

trict

Cou

ncils

und

erta

ke e

mer

genc

y pl

anni

ng f

unct

ions

and

con

tribu

te a

tot

al o

f ju

st

unde

r £4m

to fu

nd th

is w

ork.

LGA

, JC

EV

10,

par

a 4.

1.2

The

curr

ent

prop

osal

for

£19

mill

ion

natio

nally

is

tota

lly u

nrea

listic

and

nee

ds t

o be

urg

ently

rev

iew

ed.

Add

ition

al fu

nds

can

and

mus

t be

mad

e av

aila

ble

whe

re it

is m

ost n

eede

d, lo

cally

, as

this

is w

here

the

maj

ority

of

the

burd

en w

ill fa

ll.

Wes

t Dev

on R

ayne

t, C

C E

V 5

4,

chap

ter 4

The

cost

s in

the

parti

al R

IA ta

ke n

o ac

coun

t of:

- th

e co

st im

plic

atio

ns fo

r util

ity c

ompa

nies

aris

ing

from

thei

r dut

y to

coo

pera

te w

ith th

e C

ateg

ory

1 re

spon

ders

for t

he p

urpo

ses o

f pla

nnin

g an

d pr

epar

ing

for e

mer

genc

ies o

r, -

the

pote

ntia

lly h

uge

cost

s whi

ch th

ose

com

pani

es c

ould

incu

r in

deal

ing

with

the

cons

eque

nces

of a

n em

erge

ncy

inci

dent

EDF

Ener

gy, C

C E

V 7

5, q

uest

ion

6

188

The

RIA

shou

ld a

ddre

ss th

ese

issu

es, a

nd th

e B

ill it

self

shou

ld p

rovi

de fo

r the

gua

rant

eed

reco

very

of c

osts

in

curr

ed b

y ut

ility

com

pani

es a

s a d

irect

con

sequ

ence

of a

serio

us e

mer

genc

y or

of a

ctio

ns ta

ken

by th

em

befo

re, d

urin

g an

d af

ter t

he in

cide

nt to

dea

l with

its e

ffec

ts.

It is

cle

ar th

at, f

or u

tility

com

pani

es w

hose

are

a of

ope

ratio

n en

com

pass

es a

num

ber o

f loc

al a

utho

rity

area

s, th

e co

st i

dent

ified

in

the

RIA

has

bee

n gr

ossl

y un

dere

stim

ated

. In

broa

d te

rms,

the

cost

ide

ntifi

ed p

er c

ompa

ny

need

s to

be

mul

tiplie

d by

the

num

ber

of C

ateg

ory

1 re

spon

ders

the

com

pany

nee

ds to

pro

vide

info

rmat

ion

to

and

liais

e w

ith.

CE

Elec

tric

UK

, CC

EV

81,

qu

estio

n 6

The

Bill

itse

lf st

ates

‘It i

s not

pos

sibl

e to

be

spec

ific

at th

is st

age

abou

t the

pot

entia

l reg

ulat

ory

impa

ct if

they

ar

e us

ed’.

Und

er th

ese

circ

umst

ance

s the

Aut

horit

y is

una

ble

to a

nsw

er w

hat a

ppea

rs to

be

a hy

poth

etic

al

ques

tion.

H

owev

er, o

ur in

itial

vie

w b

ased

on

curr

ent w

orkl

oad

is th

at st

affin

g le

vels

wou

ld n

eed

to b

e in

crea

sed

by a

bout

tw

o po

sts (

£40,

000)

and

off

ice

supp

ort p

rovi

ded

for t

hose

staf

f. It

is im

porta

nt th

at a

n al

loca

tion

is n

ot so

lely

ba

sed

on p

opul

atio

n de

nsity

, phy

sica

l siz

e of

the

boro

ugh

or d

ista

nce

betw

een

area

s of p

opul

atio

n, a

s the

se

wou

ld n

ot fu

lly re

flect

the

risks

and

like

ly c

osts

of s

ervi

ce p

rovi

sion

. It i

s for

this

reas

on th

at th

e au

thor

ity

wou

ld p

refe

r to

see

a sp

ecifi

c gr

ant r

athe

r tha

n a

gene

ral a

dditi

on to

the

FSS.

Lond

on B

orou

gh o

f Bar

king

and

D

agen

ham

, CC

EV

84,

que

stio

ns 6

an

d 8

Ther

e ar

e gr

eat e

xpec

tatio

ns p

lace

d at

our

doo

r, bu

t no

finan

ce to

add

ress

the

sign

ifica

nt is

sues

of r

espo

ndin

g to

di

spla

ced

peop

le. T

here

are

no

stoc

kpile

s of e

quip

men

t to

assi

st th

e ta

sk a

s Cen

tral G

over

nmen

t Sto

ckpi

les f

or

Civ

il D

efen

ce h

ave

all b

een

disp

erse

d.

The

follo

win

g re

pres

ent s

ome

of th

e fu

ndin

g in

adeq

uaci

es:

- no

mor

e fo

r pur

chas

ing

emer

genc

y eq

uipm

ent r

equi

red

for t

he c

are

of d

ispl

aced

/eva

cuat

ed p

eopl

e -

no in

vest

men

ts in

CB

RN

for l

ocal

aut

horit

ies (

train

ing

and

pers

onal

pro

tect

ive

clot

hing

) -

annu

al c

ontra

cts f

or a

tem

pora

ry m

ortu

ary

serv

ice

prov

ider

-

mili

tary

aid

to th

e ci

vil c

omm

unity

com

es a

t a c

ost u

nles

s we

can

prov

e it

to b

e lif

e sa

ving

. Thi

s sho

uld

be re

gard

ed a

s a c

entra

l res

ourc

e th

at w

ill b

e de

ploy

ed to

ass

ist t

he c

omm

unity

in ti

mes

of n

eed

- lo

cal a

utho

ritie

s are

exp

ecte

d to

be

a fr

ont l

ine

resp

onde

r in

the

even

t of C

oast

al O

il Po

llutio

n.

Cla

rity

is so

ught

soon

er ra

ther

than

late

r reg

ardi

ng fu

ndin

g di

strib

utio

n ar

rang

emen

ts v

ia th

e W

elsh

Ass

embl

y G

over

nmen

t

Cer

edig

ion

Cou

nty

Cou

ncil,

CC

EV

85,

que

stio

n 6

The

Cou

ncil

belie

ves

that

the

cur

rent

lev

el o

f G

over

nmen

t fu

ndin

g fo

r co

ntin

genc

y pl

anni

ng w

ithin

loc

al

auth

oriti

es is

gro

ssly

inad

equa

te a

t £19

mill

ion.

B

olto

n M

etro

Com

mer

cial

Sy

stem

s, C

C E

V 9

5, q

uest

ion

8

In

crea

sed

dem

ands

on

LA e

mer

genc

y pl

anni

ng a

nd o

ther

sta

ff to

atte

nd m

ore

regi

onal

liai

son

mee

tings

mus

t be

take

n in

to a

ccou

nt w

hen

cons

ider

ing

over

all f

inan

cial

pro

visi

on fo

r the

serv

ice.

N

orfo

lk C

ount

y C

ounc

il, C

C E

V

96, q

uest

ion

10

The

RIA

is a

par

tial o

ne o

nly

– no

acc

ount

is t

aken

of

the

cost

s of

dea

ling

with

the

emer

genc

y on

ce it

has

ha

ppen

ed o

r of t

he d

etai

led

regu

latio

ns w

hich

mig

ht c

ome

late

r.

BT,

CC

EV

102

, par

a 4

189

M

isce

llane

ous

[Trip

le L

ock]

Th

e tri

ple

lock

mec

hani

sm sh

ould

be

writ

ten

into

the

Bill

. D

udle

y M

etro

polit

an B

orou

gh

Cou

ncil,

CC

EV

47,

que

stio

n 16

G

iven

the

EC

HR

req

uire

men

t fo

r an

arti

cle

15 d

erog

atio

n th

at t

here

be

“an

exce

ptio

n si

tuat

ion

of c

risis

or

emer

genc

y w

hich

aff

ects

the

who

le p

opul

atio

n co

nstit

utes

a th

reat

to th

e or

gani

sed

life

of th

e co

mm

unity

of

whi

ch t

he S

tate

is

com

pose

d” i

t is

diff

icul

t to

see

how

the

Gov

ernm

ent

coul

d av

oid

decl

arin

g a

stat

e of

em

erge

ncy

unde

r the

new

def

initi

on o

f the

Bill

if th

e A

nti-T

erro

rism

Crim

e an

d Se

curit

y A

ct 2

001

is to

surv

ive.

Libe

rty, J

C E

V14

, par

a 10

[L

eade

rshi

p]

The

draf

t Bill

aim

s to

esta

blis

h a

unifi

ed a

ppro

ach

to c

ivil

emer

genc

ies a

cros

s the

UK

but

no

cent

ral b

ody

is

appo

inte

d to

lead

, dire

ct a

nd m

onito

r the

impl

emen

tatio

n. T

here

is a

n ur

gent

nee

d fo

r an

over

all c

oord

inat

ing

body

(at m

inis

teria

l lev

el),

with

the

pow

er to

ena

ble

inte

rdep

artm

enta

l sup

port

and

coop

erat

ion

and

equa

lly se

ek

and

supp

ort i

nput

from

nat

iona

l and

inte

rnat

iona

l org

anis

atio

ns a

nd th

e bu

sine

ss c

omm

unity

. The

y w

ould

nee

d po

wer

s to

carr

y ou

t an

audi

t of t

he e

ffec

tiven

ess o

f the

bill

s im

plem

enta

tion

at a

ll le

vels

and

dire

ct a

s nec

essa

ry,

impl

emen

tatio

n an

d tra

inin

g. A

new

Civ

il C

ontin

genc

ies S

ecre

taria

t sho

uld

logi

cally

fall

with

in th

e re

mit

of th

e H

ome

Off

ice.

Th

is m

ust b

e a

key

less

on fr

om th

e re

cent

pas

t (fo

ot a

nd m

outh

and

BSE

out

brea

k) w

here

dec

isio

ns w

ere

grea

tly

dela

yed.

Wes

t Dev

on R

ayne

t, C

C E

V 5

4,

chap

ter 2

, 5 a

nd 7

The

Gov

ernm

ent a

lso

seem

s int

ent o

n re

tain

ing

the

lead

dep

artm

ent p

rinci

ple

whe

n re

cent

exp

erie

nce

durin

g th

e fu

el c

risis

and

the

outb

reak

of f

oot a

nd m

outh

dis

ease

has

sho

wn

that

it d

oes

not w

ork.

We

need

to b

e as

sure

d th

at a

ny G

over

nmen

t con

tribu

tion

to th

e em

erge

ncy

resp

onse

will

be

wel

l coo

rdin

ated

and

that

ther

e w

ill b

e a

com

mon

pur

pose

.

Surr

ey P

olic

e, C

C E

V 4

2, p

ara

6b

His

tory

has

sho

wn

that

the

lea

d go

vern

men

t de

partm

ent

conc

ept

has

not

wor

ked

in p

ract

ice

and

that

civ

il pr

otec

tion

is to

o im

porta

nt a

n ar

ea o

f pub

lic li

fe f

or s

tatu

tory

resp

onsi

bilit

ies

not b

e im

pose

d on

any

age

ncie

s w

hich

hav

e ke

y ro

les

in c

ontri

butio

n to

cre

atin

g a

robu

st c

ultu

re o

f res

ilien

ce in

the

UK

. The

sam

e st

anda

rds

of

mon

itorin

g an

d au

dit s

houl

d be

sim

ilarly

app

lied.

Roy

al B

erks

hire

Fire

Res

cue

Serv

ice,

CC

EV

114

, que

stio

n 3

The

Bill

or

regu

latio

ns n

eed

to b

e m

ore

prec

ise

abou

t w

ho h

as t

he l

ead

role

in

draw

ing

toge

ther

the

mul

ti-ag

ency

wor

k. R

eplie

s to

the

Emer

genc

y pl

anni

ng R

evie

w in

dica

ted

that

this

shou

ld b

e th

e lo

cal a

utho

rity.

B

right

on a

nd H

ove

City

Cou

ncil,

C

C E

V 8

8, q

uest

ion

5

Th

e ro

le o

f loc

al a

utho

ritie

s as

‘com

mun

ity le

ader

s’ fo

r em

erge

ncy

plan

ning

pur

pose

s ha

s be

en le

ft ou

t of t

his

draf

t of t

he B

ill, a

lthou

gh th

is e

lem

ent w

as in

clud

ed in

the

cons

ulta

tion

up to

this

poi

nt. W

e be

lieve

ther

e sh

ould

be

a c

lear

resp

onsi

bilit

y pl

aced

on

one

of th

e C

ateg

ory

1 or

gani

satio

ns to

take

on

this

role

.

Wig

an C

ounc

il, C

C E

V 7

2, p

ara

5

[R

egio

nal T

ier]

D

efin

e th

e ro

le o

f the

Reg

iona

l Res

ilien

ce T

eam

s (no

w e

stab

lishe

d in

the

Gov

ernm

ent O

ffic

es) i

n th

e dr

aft B

ill,

to m

ake

thei

r fun

ctio

n cl

ear.

Surr

ey P

olic

e, C

C E

V 4

2, p

ara

6c

Ther

e is

a n

eed

to k

eep

to w

ell u

nder

stoo

d ar

eas a

nd b

ound

arie

s whi

ch n

eed

to b

e pu

blic

ised

. Onc

e es

tabl

ishe

d th

e ne

w R

egio

nal R

esili

ence

arr

ange

men

ts sh

ould

kee

p to

thes

e bo

unda

ries.

Glo

uces

ters

hire

Cou

nty

Cou

ncil

Fire

and

Res

cue

Serv

ice,

CC

EV

71

, que

stio

n 11

Th

e re

gion

al a

ppro

ach

shou

ld r

ecog

nise

the

inco

nsis

tenc

ies

aris

ing

betw

een

regi

onal

bou

ndar

ies

and

thos

e of

th

e C

ateg

ory

1 an

d 2

resp

onde

rs.

Uni

ted

Util

ities

, CC

EV

73,

qu

estio

n 11

190

Thes

e pr

ovis

ions

pre

-em

pt a

ny p

ublic

refe

rend

um o

n m

ore

form

al re

gion

alis

atio

n in

Eng

land

and

shou

ld n

ot b

e pa

rt of

the

Bill

. The

bol

t-on

regi

onal

tier

s app

ear t

o ad

d no

thin

g to

the

deliv

ery

of e

mer

genc

y re

spon

se b

ut a

re

mer

ely

a m

inis

teria

l mea

ns o

f enf

orci

ng c

ompl

ianc

e.

Oxf

ords

hire

Cou

nty

Cou

ncil,

CC

EV

4, p

aras

19

and

59

It is

har

d to

see

how

the

obje

ctiv

es se

t out

for t

he re

gion

al ti

er in

the

cons

ulta

tion

pape

r can

be

achi

eved

on

a no

n-st

atut

ory

basi

s and

cou

ld le

ad to

a c

onfu

sion

of r

oles

and

resp

onsi

bilit

ies.

The

role

of t

he re

gion

al ti

er

shou

ld b

e de

taile

d in

stat

ute

and

shou

ld a

ppea

r on

the

face

of t

he B

ill. T

he re

gion

al ti

er sh

ould

be

subj

ect t

o th

e sa

me

rang

e of

per

form

ance

crit

eria

as l

ocal

resp

onde

rs.

LGA

, JC

EV

10,

par

2.2

The

role

s and

pro

cedu

res o

f the

new

regi

onal

stru

ctur

es (t

he R

egio

nal R

esili

ence

Uni

t, th

e R

egio

nal R

esili

ence

Fo

rum

, the

Reg

iona

l Civ

il C

ontin

genc

ies C

omm

ittee

and

the

Reg

iona

l Nom

inat

ed C

oord

inat

or) w

ill n

eed

to b

e cl

early

arti

cula

ted

in a

nat

iona

l doc

trine

stat

emen

t so

that

eve

ryon

e in

volv

ed c

an id

entif

y th

eir p

lace

in th

e or

der

of e

vent

s and

the

limits

of t

heir

dutie

s. A

ll tie

rs o

f the

resp

onse

pro

cess

shou

ld se

e th

eir r

espo

nsib

ility

and

ac

coun

tabi

lity

clea

rly se

t out

in a

ppro

pria

te le

gisl

atio

n.

Sout

h Ea

st R

egio

nal R

esili

ence

Fo

rum

, [ ]

[J

uris

dict

ion]

W

hils

t the

dire

ct im

pact

of t

he le

gisl

atio

n w

ill ri

ghtly

be

conf

ined

to th

e U

K, y

ou m

ay w

ish

to e

stab

lish

whe

ther

th

ere

is s

uffic

ient

pro

visi

on f

or m

inis

ter

to a

llow

the

depl

oym

ent o

f as

sets

to a

n ar

ea o

utsi

de o

f th

e U

K b

ut

with

in th

e U

K d

efen

ce a

rea.

Gra

ham

Pow

er, C

hief

Off

ice

of

Polic

e fo

r Jer

sey,

CC

EV

6, p

ara

2

It is

not

cle

ar h

ow e

vent

s or s

ituat

ions

that

occ

ur a

broa

d w

hich

impa

ct u

pon

the

heal

th, e

nviro

nmen

t and

wea

lth

of th

e U

K w

ill b

e le

gisl

ated

for

, or

whe

ther

the

emer

genc

y po

wer

s di

scus

sed

with

in th

e dr

aft B

ill w

ill h

ave

a ro

le to

pla

y in

eve

nts t

hat o

ccur

abr

oad.

Wel

sh A

mbu

lanc

e Se

rvic

es N

HS

Trus

t, C

C E

V 5

2, q

uest

ion

1

[M

ilita

ry]

It w

ould

be

usef

ul to

see

mor

e de

tail

abou

t the

rol

e of

the

mili

tary

in a

n em

erge

ncy

situ

atio

n in

clud

ed in

the

draf

t Bill

. Pa

trick

Cun

ning

ham

, Dur

ham

C

ount

y C

ounc

il, o

ral e

vide

nce

sess

ion,

9th

Sep

tem

ber 2

003

(PM

)

[Reg

ulat

ions

] LB

RuT

is c

once

rned

at t

he la

ck o

f gui

danc

e an

d re

gula

tions

, and

trus

ts th

at a

n ad

equa

te c

onsu

ltatio

n pe

riod

will

be

allo

wed

onc

e th

ese

have

bee

n pr

oduc

ed.

Lond

on B

orou

gh o

f Ric

hmon

d up

on T

ham

es, C

C E

V 6

1, p

ara

2

In

the

abse

nce

of th

e si

ght o

f th

e pr

opos

ed s

econ

dary

legi

slat

ion

it is

diff

icul

t to

mak

e in

form

ed c

omm

ent o

n w

hat i

s a v

ery

broa

d fr

amew

ork

with

a g

reat

dea

l of f

lexi

bilit

y at

the

loca

l lev

el.

CE

Elec

tric

UK

, CC

EV

81,

par

a 4

As

the

Bill

is a

n en

ablin

g le

gisl

atio

n, it

is d

iffic

ult t

o m

ake

com

men

ts o

n so

me

clau

ses

until

suc

h tim

e as

dra

ft re

gula

tions

are

pro

duce

d. A

CPO

bel

ieve

s tha

t wid

e co

nsul

tatio

n on

thos

e dr

aft r

egul

atio

ns w

ould

be

bene

ficia

l. A

CPO

, CC

EV

98,

par

a 2

The

abse

nce

of a

ny in

dica

tion

of th

e sc

ope

and

notic

e of

the

regu

latio

ns th

at w

ill fo

llow

mak

es th

e co

nsul

tatio

n pr

oces

s som

ewha

t sup

erfic

ial.

Emer

genc

y Pl

anni

ng S

ocie

ty, J

C

EV 1

2, p

art 1

[Ind

emni

ty]

It is

not

cle

ar w

heth

er in

dem

nity

for o

rgan

isat

ions

act

ing

unde

r the

dire

ctio

n of

regu

latio

n is

pro

perly

add

ress

ed.

Cla

rific

atio

n is

req

uire

d as

to w

heth

er th

e N

HS

coul

d be

hel

d le

gally

and

fin

anci

ally

acc

ount

able

for

act

ions

un

derta

ken

unde

r the

term

s of t

he d

raft

Bill

.

NH

S Lo

ndon

, JC

EV

7, p

ara

3

[A

cces

s to

conf

iden

tial

info

rmat

ion]

The

Bill

doe

s no

t ad

equa

tely

add

ress

the

iss

ue o

f ac

cess

to

conf

iden

tial

info

rmat

ion.

Em

erge

ncy

plan

ning

of

ficer

s sho

uld

have

acc

ess t

o al

l rel

evan

t inf

orm

atio

n to

ena

ble

them

to w

rite

emer

genc

y pl

ans.

Em

erge

ncy

Plan

ning

Soc

iety

, JC

EV

12,

par

t 1

[L

ocal

Res

ilien

ce

It is

diff

icul

t to

see

how

a L

ocal

Res

ilien

ce F

orum

wou

ld w

ork

at b

orou

gh l

evel

, co

nsid

erin

g th

at s

ome

Lond

on B

orou

gh o

f Ric

hmon

d

191

Foru

ms]

or

gani

satio

ns w

ill c

over

mor

e th

an o

ne b

orou

gh a

nd w

ill fi

nd p

robl

ems

in a

ttend

ing

all s

uch

liais

on m

eetin

gs.

Ther

e is

littl

e cl

arity

as t

o w

ho w

ould

be

expe

cted

to le

ad L

ocal

Res

ilien

ce F

orum

s and

thus

pro

vide

the

staf

fing

(taki

ng o

f min

utes

) and

fund

ing

(mee

ting

room

s).

upon

Tha

mes

, CC

EV

61,

que

stio

n 5

Loca

l R

esili

ence

For

ums

shou

ld i

nclu

de C

ateg

ory

1 re

spon

ders

onl

y, w

ith C

ateg

ory

2 m

embe

rs c

o-op

ted

as

requ

ired

for s

peci

fic is

sues

. Ia

in B

erry

, Mid

Bed

s, C

C E

V 6

3,

ques

tion

5

Th

e m

ilita

ry s

houl

d be

par

t of

the

Loc

al R

esili

ence

For

um a

nd t

his

shou

ld b

e in

clud

ed i

n th

e re

gula

tions

. Su

rpris

ingl

y, g

iven

its

impo

rtanc

e, th

ere

is n

o m

entio

n of

the

Loca

l Res

ilien

ce F

orum

in th

e dr

aft B

ill. I

t nee

ds

to b

e re

cogn

ised

that

the

grou

ps w

ill n

eed

to b

e se

rvic

ed b

y an

eff

ectiv

e se

cret

aria

t – c

entra

l Gov

ernm

ent s

houl

d de

term

ine

how

it sh

ould

be

fund

ed.

Sedg

emoo

r Dis

trict

Cou

ncil,

CC

EV

66,

que

stio

n 3

and

5

The

LRF

shou

ld c

onsi

st o

f Cat

egor

y 1

resp

onde

rs, w

ith th

e op

tion

to in

clud

e C

ateg

ory

2 re

spon

ders

whe

n th

e sc

enar

io d

icta

tes.

Incl

usio

n of

all

Cat

egor

y 2

resp

onde

rs w

ould

cre

ate

an u

nwie

ldy

and

inef

fect

ive

grou

p, th

e be

nefit

of w

hich

wou

ld b

e lo

st.

Luto

n B

orou

gh C

ounc

il, C

C E

V

70, q

uest

ion

5

Whi

lst t

here

app

ears

to b

e gu

idan

ce a

s to

the

area

cov

ered

by

a Lo

cal R

esili

ence

For

um o

utsi

de o

f Lon

don

ther

e is

con

fusi

on o

ver t

his

with

in L

ondo

n. C

larif

icat

ion

need

s to

be

give

n as

to w

heth

er th

e Po

lice

Aut

horit

y A

rea

is

the

Met

ropo

litan

Pol

ice

(in w

hich

cas

e th

e LR

F w

ould

cov

er t

he w

hole

of

Lond

on a

nd i

ts 3

2 bo

roug

h em

erge

ncy

plan

ning

off

icer

s and

oth

er a

genc

ies)

, or i

f the

Pol

ice

Are

a is

the

loca

l bor

ough

, in

whi

ch c

ase

it is

a

real

loca

l for

um.

Lond

on B

orou

gh o

f Bar

king

and

D

agen

ham

, CC

EV

84,

que

stio

n 5

The

mos

t lik

ely

wid

e sc

ale

solu

tion

wou

ld b

e to

bas

e Lo

cal

Res

ilien

ce F

orum

s on

exi

stin

g M

ulti

Age

ncy

Stra

tegi

c G

roup

s est

ablis

hed

on P

olic

e Fo

rce

area

s.

Cer

edig

ion

Cou

nty

Cou

ncil,

CC

EV

85,

que

stio

n 5

The

use

of t

he t

erm

‘Lo

cal

Res

ilien

ce F

orum

s’ m

ay c

ause

con

fusi

on,

espe

cial

ly w

here

loc

al a

rran

gem

ents

op

erat

ing

unde

r a

diff

eren

t nam

e ha

ve b

een

in p

lace

for

sev

eral

yea

rs. I

f a n

atio

nal c

onsi

sten

t app

roac

h to

the

nam

e is

to b

e ap

plie

d, th

is m

ust b

e cl

early

stat

ed in

regu

latio

ns.

Nor

folk

Cou

nty

Cou

ncil,

CC

EV

96

, que

stio

n 5

The

deve

lopm

ent o

f loc

al re

silie

nce

foru

ms

may

cau

se p

robl

ems

with

cer

tain

pan

Lon

don

orga

nisa

tions

if th

ey

are

to b

e co

nstit

uted

on

a bo

roug

h by

bor

ough

bas

is. P

ublic

util

ities

in p

artic

ular

may

find

it d

iffic

ult t

o at

tend

33

sep

arat

e fo

rum

s. A

n al

tern

ativ

e ar

rang

emen

t cou

ld b

e to

use

the

exis

ting

five

boro

ugh

mut

ual a

id g

roup

ings

as

a b

asis

for t

hese

foru

ms.

Bar

net

Lond

on B

orou

gh, C

C E

V

20, p

ara

5

Appendix 12: Note by Christopher Barclay, House of Commons Library – Legal Challenges to Emergency Powers Legal Challenges to Emergency Powers

This note summarises briefly judicial control over the use of emergency powers, relevant to the draft Bill. It does not cover Northern Ireland, nor broader challenges to permanent legislation.

Overview

There do not appear to have been legal challenges to the states of emergency in the period 1966 to 1974. However, there have been challenges to other types of emergency powers, both before and after. A rough summary might be that judges would be willing to prevent use by the executive of what they considered excessive powers deriving from an emergency. However, judges are willing to take account of the reasons that led to the executive’s decisions. In a serious emergency, judges are willing to accept policies that would be considered infringement of liberty in normal circumstances.

The Problem of Judicial Control of Emergency Powers

A constitutional law textbook notes that the nature of emergency powers in British law has changed during the 20th century. Initially, special powers were taken to deal with the consequences of war (Defence of the Realm Act 1914) and then large scale industrial unrest (Emergency Powers Act 1920). These measures tended to authorise the making of secondary legislation for a limited period, and for a specific end. In recent years the threat of terrorism has seen the development of standing legislation, so that we now live in a state of “permanent emergency”. The draft Civil Contingencies Bill would mark a return to the earlier strategy, without abandoning the standing legislation. The textbook notes the difficulties of parliamentary control of emergency powers, continuing:

It is thus up to the courts to ensure that these wide powers are not misused. But concern about the unenviable role in which thy have been cast is hardly eased by Lord Hoffman’s postscript in the Rehman case where the said that the events of 11 September 2001 in Washington and New York were

a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.398

A Challenge to Wartime Powers

Wartime emergency regulations were challenged in the case of Anderson v Liversidge. A man called Robert Liversidge had been sent to prison as a threat to public safety. The home secretary, Sir John Anderson, gave

398 Bradley and Ewing, Constitutional and Administrative Law, 13th edition, p628.

193

no reasons. The House of Lords supported that action in 1942, although Lord Atkin made a famous dissenting judgement. The headnote to the House of Lords judgement opened as follows:

When the Secretary of State, acting in good faith under reg. 18B of the Defence (General) Regulations 1939, makes an order in which he recites that he has reasonable cause to believe a person to be of hostile associations and that by reason thereof it is necessary to exercise control over him and directs that that person be detained, a court of law cannot inquire whether in fact the Secretary of State had reasonable grounds for his belief. The matter is one for the executive direction of the Secretary of State…399

Lord Atkin dissented, arguing that some objective evidence for that belief was required. His argument would have allowed the courts to retain control over the process of imprisonment under wartime regulations. The majority judgement meant that they lost that control. Lord Atkin’s dissenting judgement has often found favour with later judges. Another textbook on constitutional law notes later disagreement with the original judgement:

In Nakkuda Ali v Jayaratne a strong Privy Council held that Liversidge v Anderson must not be taken to lay down any general rule on the construction of the expression “has reasonable cause to believe.” Subsequently Liversidge v Anderson was described by Lord Reid in Ridge v Baldwin as a “very peculiar decision.” Lord Diplock in I.R.C. v Rossminster Ltd thought that “the time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.”…It should not, however, be forgotten that the House of Lords, as evidenced by McEldowney v Forde in construing powers for dealing with emergencies may still give greater scope to ministerial discretion than subsequent judicial criticisms of Liversidge v Anderson might suggest.400

A textbook on judicial review gave an overview of changes in the attitude of judges towards the exercise of emergency powers:

The exercise of statutory powers directly affecting individual interests in nearly always potentially reviewable, albeit that it may be on narrow grounds, at the instance of a person having appropriate locus standi, and the courts at different times have shown a variable degree of enthusiasm about intervening.

Wartime and immediate post-war decisions ought now to be treated with caution. The emergency legislation of the Second World War gave the Executive vast powers over persons and property. The wording of the grants of power was sufficient, on a literal interpretation, to support the validity of almost any act purporting to be done under their authority, yet not only did the courts give a strictly literal interpretation to subjectively worded formulae; in their anxiety not to impede the war effort they declined to give a literal interpretation to a formula which prima facie enabled them to review the reasonableness of the grounds for exercising a discretionary power authorising summary deprivation of personal liberty. Such a measure of judicial self-restraint it is to be hoped will not be repeated except possibly in conditions of grave emergency. But a literal construction of the subjective type of formula was to reappear in a number of immediate post-war cases having only a remote connection with national emergency. Happily, a shift in approach to judicial interpretation has taken place since these cases were decided.401

399 Liversidge v Anderson, [1942] A.C. 206. 400 O.Hood Phillips and Jackson, Constitutional and Administrative Law, 8th Edition, p406. 401 de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th edition, pp118-9.

Formal Minutes

Extract from Lords Minute of 12 June 2003

Civil Contingencies—It was moved by the Lord Privy Seal (Lord Williams of Mostyn) that it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on any draft Civil Contingencies Bill presented to both Houses by a Minister of the Crown, and that the Committee should report on the draft Bill by the end of October 2003; the motion was agreed to and a message was ordered to be sent to the Commons to acquaint them therewith.

Extract from Votes and Proceedings of the House of Commons 10 July 2003

Draft Civil Contingencies Bill (Joint Committee),-Ordered, That the Lords Message of 13th June relating to a Joint Committee of both Houses to consider and report on any draft Civil Contingencies Bill presented to both Houses by a Minister of the Crown be now considered.

That this House concurs with the Lords that it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on any draft Civil Contingencies Bill presented to both Houses by a Minister of the Crown, and proposes that the Committee should report on the draft Bill by the end of November 2003.

That a Select Committee of eleven honourable Members be appointed to join with the Committee appointed by the Lords to consider any draft Civil Contingencies Bill.

That the Committee shall have power-

1. to send for persons, papers and records;

2. to sit notwithstanding any adjournment of the House;

3. to report from time to time;

4. to appoint specialist advisers;

5. to adjourn from place to place within the United Kingdom; and

That Mr Richard Allan, Mr Adrian Bailey, David Cairns, Mr James Clappison, Mr Kevan Jones, Mr Elfyn Llwyd, Patrick Mercer, Chris Mole, Dr Lewis Moonie, Kali Mountford and David Wright be members of the Committee-(Charlotte Atkins.)

Message to the Lords to acquaint them therewith.

Extract from House of Lords Minute of 11 July 2003

Civil Contingencies—It was moved by the Chairman of Committees that the Commons message of yesterday be now considered, and that a Committee of eleven Lords be appointed to join with the Committee appointed by the Commons, to consider and report on any draft Civil Contingencies Bill presented to both Houses by a Minister of the Crown;

That, as proposed by the Committee of Selection, the Lords following be named of the Committee:

195

L. Archer of Sandwell L.Bradshaw L. Brooke of Alverthorpe L. Condon L. Jordan L. King of Bridgwater

L. Lucas L. Maginnis of Drumglass L. Marlesford B. Ramsay of Cartvale L. Roper;

That the Committee have power to agree with the Commons in the appointment of a Chairman;

That the Committee have leave to report from time to time;

That the Committee have power to appoint specialist advisers;

That the Committee have power to adjourn from place to place within the United Kingdom;

That the reports of the Committee from time to time shall be printed, notwithstanding any adjournment of the House;

That the Committee do report on the draft Bill by the end of November 2003;

And that the Committee do meet with the Committee appointed by the Commons on Tuesday 15th July at half-past three o’clock in Committee Room G;

the motion was agreed to; and a message was ordered to be sent to the Commons to acquaint them therewith.

Lords Minute 8 September 2003

13. Civil Contingencies—It was moved by the Chairman of Committees that the Earl of Shrewsbury be appointed a member of the Joint Committee on the draft Civil Contingencies Bill in the place of the Lord Marlesford; the motion was agreed to.

Proceedings of the Joint Committee

Tuesday 15 July 2003

Members present:

Mr Richard Allan Mr Adrian Bailey David Cairns Mr Elfyn Llwyd Patrick Mercer Chris Mole Dr Lewis Moonie David Wright

Rt Hon the Lord Archer of Sandwell, QC The Lord Brooke of Alverthorpe The Lord Lucas of Crudwell and Dingwall The Lord Maginnis of Drumglass The Baroness Ramsay of Cartvale The Lord Roper

Members declared interests relating to the draft Bill, pursuant to the resolutions of the House of Commons 13th July 1992 and the House of Lords 2nd July 2001:

Lord Brooke of Alverthorpe as a Partnership Director, National Air Traffic Control Services Ltd

Baroness Ramsay of Cartvale as a consultant to Control Risks

Lord Lucas of Crudwell and Dingwall as a consultant to Green Issues Communications (which had a role in disaster management)

Dr Lewis Moonie was called to the chair by acclamation.

The Committee deliberated.

Ordered, Dr James Broderick, Professor Clive Walker and Mr Garth Whitty be appointed Specialist Advisers to assist the Committee in its inquiry into the draft Civil Contingencies Bill..

Ordered, That the public be admitted during the examination of witnesses unless the Committee otherwise orders.—(The Chairman.)

Ordered, That the uncorrected transcripts of oral evidence given, unless the Committee otherwise orders, be published on the Internet.—(The Chairman.)

The Committee further deliberated.

[Adjourned till Tuesday 9 September at half-past Nine o’clock.

Tuesday 9 September 2003 (am)

Members present:

Dr Lewis Moonie, in the Chair

Mr Adrian Bailey David Cairns Mr James Clappison Mr Kevan Jones Chris Mole Kali Mountford David Wright

Rt Hon the Lord Archer of Sandwell, QC The Lord Brooke of Alverthorpe Lord Condon The Lord Lucas of Crudwell and Dingwall The Lord Maginnis of Drumglass The Baroness Ramsay of Cartvale The Lord Roper Earl of Shrewsbury

The Committee deliberated.

Lord Condon declared his interests as a former Commissioner of the Metropolitan Police, President of the British Security Industry Association and a life member of the Association of Chief Police Officers.

Draft Civil Contingencies Bill: Councillor Peter Chalke and Mr Tom Griffin, Local Government Association, and Mr Brian Ward, UK Emergency Planning Association, were examined.

197

Mr Alan Goldsmith, Association of Chief Police Officers, Mr Philip Selwood, Ambulance Services Association, and Mr Roy Bishop, Chief and Assistant Chief Fire Officers Association, were examined.

[Adjourned till this afternoon at half-past Four o’clock.

Tuesday 9 September 2003 (pm)

Members present:

Dr Lewis Moonie, in the Chair

Mr Richard Allan David Cairns Mr James Clappison Mr Kevan Jones Mr Elfyn Llwyd Chris Mole Kali Mountford David Wright

Rt Hon the Lord Archer of Sandwell, QC Professor the Lord Bradshaw The Lord Brooke of Alverthorpe The Lord Condon The Lord Lucas of Crudwell and Dingwall The Lord Maginnis of Drumglass The Baroness Ramsay of Cartvale The Lord Roper Earl of Shrewsbury

Lord Bradshaw declared his interests as a member of Oxfordshire County Council and of the Thames Valley Police Authority.

Draft Civil Contingencies Bill: Alison Lowton, Camden Council, Mr Patrick Cunningham, Durham Council, and Mr Richard Davies, Leeds City Council, were examined.

[Adjourned till Tuesday 16 September at half-past Nine o’clock.

Tuesday 16 September 2003 (am)

Members present:

Dr Lewis Moonie, in the Chair

Mr Richard Allan David Cairns Mr James Clappison Mr Elfyn Llwyd Patrick Mercer David Wright

Rt Hon the Lord Archer of Sandwell, QC Professor the Lord Bradshaw The Lord Lucas of Crudwell and Dingwall The Lord Maginnis of Drumglass The Baroness Ramsay of Cartvale The Lord Roper

Draft Civil Contingencies Bill: Mr Hugh Henry MSP, Deputy Justice Minister, Scottish Executive and Mr Rhodri Morgan AM, First Minister, National Assembly for Wales, were examined.

[Adjourned till half-past Four o’clock on this day.

Tuesday 16 September 2003 (pm)

Members present

Dr Lewis Moonie, in the Chair

Mr Richard Allan Mr James Clappison Mr Elfyn Llwyd Patrick Mercer David Wright

Rt Hon the Lord Archer of Sandwell, QC Professor the Lord Bradshaw The Lord Lucas of Crudwell and Dingwall The Baroness Ramsay of Cartvale The Lord Roper

Draft Civil Contingencies Bill: Ms Shami Chakrabarki, Director, Liberty and Dr Eric Metcalfe, Director of Human Rights Policy, Justice were examined.

[Adjourned till Tuesday 14 October at half-past three o’clock.

Tuesday 14 October 2003

Members present:

Dr Lewis Moonie, in the Chair

Mr Richard Allan Mr Adrian Bailey Mr James Clappison Mr Kevan Jones Mr Elfyn Llwyd Chris Mole Kali Mountford David Wright

Rt Hon the Lord Archer of Sandwell, QC Professor the Lord Bradshaw The Lord Brooke of Alverthorpe The Lord Condon The Lord Lucas of Crudwell and Dingwall The Baroness Ramsay of Cartvale

The Committee deliberated.

[Adjourned till Thursday 16 October at four o’clock.

Thursday 16 October 2003

Members present

Dr Lewis Moonie, in the Chair

Mr Adrian Bailey Mr James Clappison Mr Kevan Jones Mr Elfyn Llwyd Patrick Mercer Kali Mountford

Rt Hon the Lord Archer of Sandwell, QC The Lord Brooke of Alverthorpe The Lord Condon The Lord Jordan The Lord Lucas of Crudwell and Dingwall The Baroness Ramsay of Cartvale

199

Draft Civil Contingencies Bill: Mr Douglas Alexander MP, Minister of State, Cabinet Office, Mr Roger Hargreaves, Bill team leader and Ms Rebecca Lane, legal adviser, Civil Contingencies Secretariat, were examined.

[Adjourned till Tuesday 21 October at four o’clock.

Tuesday 21 October 2003

Members present:

Dr Lewis Moonie, in the Chair

Mr Richard Allan Mr Adrian Bailey David Cairns Mr Kevan Jones Mr Elfyn Llwyd Patrick Mercer Kali Mountford David Wright

Rt Hon the Lord Archer of Sandwell, QC Professor the Lord Bradshaw The Lord Brooke of Alverthorpe The Lord Condon The Lord Lucas of Crudwell and Dingwall The Baroness Ramsay of Cartvale The Lord Roper

Draft Civil Contingencies Bill: Mr John Pullin, South West London SHA, Mr Keith Williams, North Wales Health Emergency Planning Group and Mr Anthony Kealy, Emergency Planning Lead, West Yorkshire SHA were examined; Mr Doug Turner, Head of Network Continuity and Emergency Planning, British Telecom, Mr Philip West, Policy Manager, Western Power Distribution and Mr Geoffrey Miller, Head of Risk Management, United Utilities, were examined; and Virginia Beardshaw, Director of UK Service Development, Red Cross, Peter Brown, Chief Commander, St John Ambulance, Moya Wood-Heath, Assistant General Secretary, National Voluntary Aid Society Emergency Committee, Major Bill Cochran, Secretary for Communications, Salvation Army and Mark Lever, Chief Executive, Women’s Royal Voluntary Service were examined.

[Adjourned till Thursday 23 October at four o’clock.

Thursday 23 October 2003

Members present:

Dr Lewis Moonie, in the Chair

Mr Adrian Bailey James Clappison David Wright

Rt Hon the Lord Archer of Sandwell, QC The Lord Brooke of Alverthorpe The Lord Condon The Lord Lucas of Crudwell and Dingwall The Baroness Ramsay of Cartvale The Lord Roper

The Committee deliberated.

[Adjourned till Thursday 30 October at a quarter to four o’clock.

Thursday 30 October 2003

Members present:

Dr Lewis Moonie, in the Chair

Mr Richard Allan Mr Adrian Bailey Mr Elfyn Llwyd Kali Mountford

Rt Hon the Lord Archer of Sandwell, QC The Lord Bradshaw The Lord Brooke of Alverthorpe The Lord Condon The Lord Jordan The Lord Lucas of Crudwell and Dingwall The Baroness Ramsay of Cartvale The Lord Roper

[Adjourned till Tuesday 4 November at four o’clock.

Tuesday 4 November 2003

Members present:

Dr Lewis Moonie, in the Chair

David Cairns Mr James Clappison Mr Elfyn Llwyd Patrick Mercer Chris Mole Kali Mountford David Wright

Rt Hon the Lord Archer of Sandwell, QC The Lord Bradshaw The Lord Brooke of Alverthorpe The Lord Condon The Lord Lucas of Crudwell and Dingwall

The Committee deliberated.

[Adjourned till Thursday 6 November at a quarter to four o’clock.

201

Tuesday 11 November 2003

Members present:

Dr Lewis Moonie, in the Chair

Mr Richard Allan Mr Adrian Bailey Mr Kevan Jones Mr Elfyn Llwyd Chris Mole Kali Mountford

Rt Hon the Lord Archer of Sandwell, QC The Lord Bradshaw The Lord Brooke of Alverthorpe The Lord Lucas of Crudwell and Dingwall

The Committee deliberated.

The Committee considered the draft report.

Paragraphs 1 to 320 were read and agreed to.

Resolved, That the draft Report be the Report of the Committee to both Houses.

Several Papers were ordered to be appended to the Report.

Ordered, That the memoranda received by the Joint Committee be appended to the Minutes of Evidence.

Ordered, That The Chairman make the Report to the House of Commons and Lord Lucas of Crudwell and Dingwall make the Report to the House of Lords.

Ordered, That where the Chairman considers it appropriate, embargoed copies of the Report may be given to specific individuals and other persons not more than forty-eight hours in advance of publication.

Ordered, That the Joint Committee be adjourned.

Witnesses

Tuesday 9 September 2003, 10.15am Page

Representing the Local Government Association: Councillor Peter Chalke, Deputy Chair and Mr Tom Griffin, Principal Adviser on Emergency Planning. Representing the Emergency Planning Society: Mr Brian Ward, Chair. Ev 14

Representing ACPO: Mr Alan Goldsmith, Deputy Chief Constable, Lincolnshire Police. Representing CACFOA: Mr Ron Dobson, Assistant Commissioner, London Fire Brigade. Representing ASA: Mr Philip Selwood, Chairman, Ambulance Service Association Civil Emergencies Committee. Ev 36

Tuesday 9 September 2003, 4.35pm

Representing Camden Borough Council: Ms Alison Lowton, Head of Legal Services. Representing Durham County Council: Mr Patrick Cunningham, Chief Emergency Planning Officer. Representing Leeds City Council: Mr Richard Davies, Principal Emergency Planning Officer. Ev 58

Tuesday 16 September 2003, 9.35am

Representing the Scottish Executive: Mr Hugh Henry, Deputy Minister for Justice, Mr Jim Gallagher, Head of Justice Department and Mr Max Maxwell, Head of Contingencies and Resilience Unit. Representing the National Assembly for Wales: Mr Rhodri Morgan, First Minister and Mr Nick Patel, Head of Emergencies and Security Division. Ev 72

Tuesday 16 September 2003, 4.35pm

Representing Liberty: Ms Shami Chakrabarti, Director Representing JUSTICE: Dr Eric Metcalfe, Director of Human Rights Policy. Ev 97

Thursday 16 October 2003, 3.35pm

Representing the Cabinet Office: Mr Douglas Alexander MP, Minister for the Cabinet Office, Roger Hargreaves, Head of Bill Team, Policy Division and Ms Rebecca Lane, Legal Advisor. Ev 109

203

Tuesday 21 October 2003, 4.05pm

Representing the NHS: Office of Strategic Health Authorities: Mr John Pullin, South West London Strategic Health Authority; North Wales Health Emergency Planning Group: Mr Keith Williams, Emergency Planning co-ordinator for North Wales; and West Yorkshire Strategic Health Authority: Mr Anthony Kealy, Emergency Planning Lead. Ev 130

Representing Utility Providers: BT: Mr Doug Turner, Head of Network Continuity and Emergency Planning; Western Power Distribution: Mr Philip West, Policy Manager; and United Utilities: Mr Geoffrey Miller, Head of Risk Management. Ev 153

Representing the Voluntary Sector: The National Voluntary Aid Society Emergency Committee: Ms Moya Wood-Heath, Assistant General Secretary; The British Red Cross: Ms Virginia Beardshaw, Director of UK Service Development; The Salvation Army: Major Bill Cochrane, Secretary for Communications; The Women’s Royal Voluntary Service: Mr Mark Lever, Chief Executive; and St John Ambulance: Mr Peter Brown, Chief Commander. Ev 171

List of written evidence

1 Local Government Association Ev 1 2 Emergency Planning Society Ev 6 3 Association of Chief Police Officers (ACPO) Ev 21 4 Ambulance Service Association (ASA) Ev 26 5 Chief and Assistant Chief Fire Officers’ Association (CACFOA) Ev 32 6 Camden Borough Council Ev 46 7 Durham County Council Ev 46 8 Leeds City Council Ev 52 9 Liberty Ev 87 10 JUSTICE Ev 92 11 Douglas Alexander MP, Minister of State, Cabinet Office Ev 109 12 Douglas Alexander MP, Minister of State, Cabinet Office (Supplementary) Ev 124 13 Office of Strategic Health Authorities Ev 128 14 North Wales Health Emergency Planning Group Ev 129 15 West Yorkshire Strategic Health Authority Ev 130 16 BT Ev 134 17 Western Power Distribution Ev 141 18 United Utilities Ev 147 19 BT (Supplementary) Ev 160 20 United Utilities (Supplementary) Ev 161 21 National Voluntary Aid Society Emergency Committee Ev 162 22 British Red Cross Ev 163 23 Women’s Royal Voluntary Service Ev 165 24 St John Ambulance Ev 167 25 Association of United Kingdom Oil Independents Ev 178 26 David Bonner, Senior Lecturer in Law, University of Leicester Ev 178 27 Brent Council Ev 184 28 Bristol City Council Ev 188 29 British Energy Ev 192 30 CE Electric UK Ev 196 31 Ceredigion County Council Ev 198 32 Ceredigion Local Health Board Ev 201 33 City of London Police Ev 201 34 Devon County Council Ev 203 35 Dudley Metropolitan Borough Council Ev 205 36 East Riding of Yorkshire Council Ev 209 37 K D Ewing, Professor of Public Law, King’s College London Ev 213 38 Exeter City Council Ev 216 39 Food & Drink Federation Ev 219 40 Food Standards Agency Wales Ev 219 41 Professor C A Gearty, LSE and Matrix Chambers Ev 220 42 Gloucestershire County Council Fire and Rescue Service Ev 221

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43 International Tanker Owners Pollution Federation Limited (ITOPF) Ev 226 44 Kent and Medway Towns Fire Authority Ev 227 45 Mervyn King, The Governor, Bank of England Ev 230 46 Kirklees Metropolitan Council Ev 230 47 Ian Leigh, Professor of Public Law, University of Durham Ev 231 48 London Borough of Richmond upon Thames Ev 233 49 Mid Bedfordshire District Council Ev 236 50 Professor Gillian Morris, Brunel University and Matrix Chambers Ev 241 51 National Council for Civil Protection (NCCP) Ev 243 52 NHS London Ev 247 53 Northumberland, Tyne and Wear Strategic Health Authority Ev 248 54 North Wales Police Ev 248 55 Oxfordshire County Council Ev 254 56 Rochford District Council Ev 260 57 Royal Borough of Kensington and Chelsea Ev 264 58 South East Regional Resilience Forum Ev 266 59 Surrey Police Ev 268 60 Tees Valley Chief Executives Group (Darlington, Hartlepool, Middlesbrough,

Stockton-on-Tees and Redcar and Cleveland Borough Councils) Ev 272 61 Torbay Council Ev 275 62 United Kingdom Atomic Energy Authority Constabulary (UKAEAC) Ev 278 63 West Sussex County Council Ev 278 64 West Yorkshire Police (as lead for Regional Resilience Yorkshire and

Humber Region) Ev 279