Joint Committee on Draft Civil Contingencies Bill First Report


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 published[1] 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 Committee[2], the Joint Committee on Human Rights[3], the House of Lords Select Committee on the Constitution[4], the House of Commons Transport Committee[5] 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 (b) to provide powers for the Government to make regulations to deal with proclaimed emergencies. It is in three parts and contains two schedules:

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.

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)

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, 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 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)


1   Cm 5843. Back

2   Seventh Report of Session 2002-03 HC 557. Back

3   Fifteenth Report 2002-03 HC 1005 HL Paper 149 14 July 2003. Back

4   Memorandum from the House of Lords Select Committee on the Constitution, Appendix 1. Back

5   Memorandum from the House of Commons Transport Committee, Appendix 2. Back

6   Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform, Appendix 3. Back

7   HC 415-I. Back

8   Draft Civil Contingencies Bill, Part 2, clause 19(1)(c). Back

9   Q 128, Mr Richard Davies (Leeds City Council). Back

10   As identified by the Joint Committee on Human Rights, Fifteenth Report 2002-03 HC 1005 HL Paper 149 14 July 2003, 3.11. Back

11   Fifteenth Report 2002-03 HC 1005 HL Paper 149 14 July 2003, para 3.35. Back

12   In the Regulatory Impact Assessment (para 76) and the Consultation Document (chapter 3, para 35, p 20). Back

13   Memorandum from the Association of Chief Police Officers, Ev 21, Q9. Back

14   Consultation Document, chapter 4. Back

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


 
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Prepared 28 November 2003