Joint Committee on Draft Civil Contingencies Bill First Report

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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