Joint Committee on Draft Civil Contingencies Bill First Report

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:

  • 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.


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 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 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.


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

Contamination of: (including by chemicals, biological agents and radioactive material)

  • Population
  • Land
  • Water
  • Air
  • Food
  • Flora and Fauna
  • Structures
  • National herd/flock




Structural collapse

Maritime, rail, road and air catastrophic events


Climatic conditions

Response Requirements

At the national (strategic) level an effective response to potential 'disruptive challenges' requires:


Clarity - of intent, command and control


Executive Focus

Standardisation - of requirement, equipment, performance

Resources -financial, equipment, trained personnel



Public engagement


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.

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 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 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 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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