Appendix 7: Note by Mr Garth Whitty, Specialist Adviser
to the Committee
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:
- Meeting the requirement
Is it necessary?
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.
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.
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
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 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.
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
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
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.'
- Physical well-being
- Psychological well-being
- Food supply
Contamination of: (including by chemicals, biological
agents and radioactive material)
- Flora and Fauna
- National herd/flock
Maritime, rail, road and air catastrophic events
At the national (strategic) level an effective response
to potential 'disruptive challenges' requires:
Clarity - of intent, command and control
Standardisation - of requirement, equipment, performance
Resources -financial, equipment, trained personnel
Monitoring, Warning and Reporting
Does the draft Bill meet the requirement?
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.
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
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 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.
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.
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.
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
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 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 is nevertheless
essential that the Bill accurately reflects the requirement and
in this regard it is recommended that consideration be given to
- Will the introduction of 3
tiers unduly complicate when simplicity is desirable?
- Should the Bill include Central Government and
- 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