Joint Committee on Draft Civil Contingencies Bill First Report


Appendix 9: Questions for the Bill Team

No.Question Reply
Definition of emergency
1.  How do you respond to the view that the provision for emergency powers in the Bill has been drawn too widely because, for example, the powers in the Animal Health Act 2002 already provide adequate means to deal with an emergency such as foot and mouth disease and therefore the powers at clause 21(2)(j) and 21(3)(c) in respect of animals is unnecessary? Where possible, Governments have enacted legislation to deal with specific emergencies. As a consequence, a large body of sector-specific emergency legislation exists. Where possible, the Government would turn to the powers available under such legislation first in the event of an emergency.

However, this sector specific emergency legislation can only cover those events and subsequent courses of action foreseeable at the time of drafting.

If circumstances were to change over time, and outside the context of an emergency, the Government could introduce new legislation in the usual way should additional powers be required.

But in an emergency new legislative measures might need to be put in place immediately, thus requiring a different (albeit temporary) legislative mechanism. It is that which Emergency Powers provides.

This is reflected in the Bill itself. So a declaration of emergency can only be made if it is "necessary" to make regulations under the Bill (clauses 18(1)(b) and 19(1)(b)). Clause 21(4)(e) provides that regulations may only include a provision which could be made by virtue of a subsisting legislative provision (for example, the animal health legislation) if use of the subsisting provision would be insufficient or would occasion a serious delay.

2.  There were five states of emergency between 1970 and 1973, but there have been none since. It would appear therefore that a decision may depend on the political situation and the attitude of the Government of the day. What weight does the Bill Team consider has been, and should be, attached to political considerations in proclaiming a state of emergency? Should the mechanism only be triggered where there is a consensus to use it across the main political parties? Part 2 of the draft Civil Contingencies Bill guards against governments using emergency powers in a discretionary way. The 'triple lock' ensures that emergency powers would only be used in situations of sufficient seriousness, and only then if necessary.

The Government will also be constrained by the requirement to seek the approval from Parliament of the regulations (clause 24). The regulations lapse seven days after they have been laid before Parliament unless each House approves the regulations. This ensures that all Parliamentary parties will have the opportunity to scrutinise and comment on the Government's course of action.

Provision is made (clause 24) to ensure that, should an emergency be declared when Parliament is prorogued or either House is adjourned, Parliament will be recalled. This should ensure that any declaration of emergency and any regulations are subject to Parliamentary scrutiny without undue delay.

(Note: The unusually high number of States of Emergency between 1970 and 1973 seems likely to have been the consequence of a number of factors, rather than simply the attitude of the Government of the day. The early 1970s saw a combination of serious emergencies coupled with an increasingly interdependent and technologically dependent society. The available legislation was in many cases inadequate to deal with the nature of the emergencies being dealt with.

As a consequence, the 1970s saw a growth in sector specific emergency legislation which helped to reduce the reliance on the Emergency Powers Act 1920.)

3.  Given the absence of a definition of a 'serious threat', as specified in clause 1 of the draft Bill, what criteria would it be measured by? The term 'serious threat' as used in subsection (1) of clause 1 is qualified by subsections (2) to (6). These qualifications add detail about either the cause of effect of serious threats. A serious threat to, for example, human welfare is illustrated by the events listed at 1(2).

While the intention of this clause is to define 'emergency' and thus to establish a threshold below which a situation should not be regarded as such, the Government does not believe that an overly tight definition is sensible. For example the reference to loss of human life at 1(2)(a) could be qualified by a minimum number of deaths that would have to occur. Problems would arise when palpable emergencies did not cross inflexible thresholds. Delay would be occasioned while it was ascertained whether an incident met the relevant threshold.

(Note: many other jurisdictions have adopted far less precise approaches to the question of what constitutes an emergency, relying either on not defining the term or using more general language such as 'grave and immediate threat' or 'emergent danger'.)

4.  The powers in the draft Civil Contingencies Bill could be characterised as "one size fits all" based on worst case scenarios. Given that the Cabinet Office is proposing to limit the use of the powers to the areas affected by the emergency, what consideration has been given to restricting the powers by category of emergency tailored to particular emergencies or the effects of emergencies? Clause 21(1)(a) states that emergency regulations can be made only so far as it is necessary for the purpose of preventing, controlling or mitigating a serious aspect or serious effect of the emergency. This has the effect of restricting the content of emergency regulations to that needed to deal with the emergency at hand only but allows new powers to become available should the situation demand it. Any attempt to use emergency powers beyond those necessary in a given situation could be ruled to be ultra vires.
5.  Why does flooding offer access to the whole range of emergency powers, when only the power to evacuate people would appear to be needed? Why is the legislation drafted in such a general manner that there is no distinction between the powers appropriate to a flooded river and those appropriate to sea flooding? Clause 21(1)(a) states that emergency powers can only be used in so far as it is necessary for the purpose of preventing, controlling or mitigating a serious aspect or serious effect of the emergency. If flooding is the cause then only those powers necessary for dealing with the particular flooding incident at hand are available. The necessities would not be driven by the type of flooding, but by the specifics of the incident.

Nevertheless, the Government would not agree that the only action necessary in the event of serious flooding would be evacuation (whether of people or animals). Serious flooding can disrupt water supplies, power, transport and food distribution. Action might be necessary to reduce, control or mitigate the effect of the flooding, for example the diversion of flood waters or the erection of temporary flood defences. In the aftermath, special arrangements might be necessary to support recovery.

Although the expectation would be that most of these could be achieved without recourse to emergency powers, the most extreme flooding situations might require, for example, emergency powers to requisition property or restrict movement.

This is equally true of both coastal and fluvial flooding. Coastal flooding has traditionally had the potential to cause greater damage, but fluvial flooding threatens more areas. Both can and have caused loss of life and dislocation of essential services.

6.  In the context of animal diseases, the only relevant additional power that the draft Bill would offer over and above the Animal Health Act 2002 would appear to be the power to slaughter animals without paying compensation. If that power is to play a part in the Government's animal health strategy, why was not it included in the 2002 Act? Where possible, an animal health emergency would be dealt with by the Government under its existing powers, up to and including the Animal Health Act 2002.

However, an animal health emergency might have a collateral impact on the national infrastructure in an unexpected way that cannot be catered for by the Animal Health Acts. For example, an animal health emergency might affect the food supply, or necessitate movement bans. In such circumstances recourse might be needed to powers in the draft Bill to address the wider impact.

A fuller explanation of the policy on compensation is set out at answer 37.

7.  There are currently provisions in statutes such as section 3 of the Animal Health Act 2002 to provide the authorities with emergency powers. What criteria will the Government apply in reaching a decision to use the powers in the Civil Contingencies Bill rather than in another statute? Emergency powers are used when there is a need for special temporary legislation. If the situation can be dealt with using existing legislation special legislative measures will not be invoked. Clause 21(4)(e) states that emergency regulations cannot make provision of a kind which is made by or could be made under existing legislative provision unless use of that provision would be insufficient or occasion serious delay. This is an essential element of the 'triple lock'.

So in the case of the example in question, use of special legislative measures would only be considered if those in the Animal Health Acts were determined to be insufficient or their use risked serious delay that could otherwise be avoided.

Decision to Use Emergency Powers
8.  The Consultation document states that the decision to use emergency powers should be based on three guiding principles which represent a "triple lock" against possible misuse - seriousness, the need for special legislative measures and relevant geographical extent (p28). How is this protection against misuse given legal effect in the draft Bill? The "triple lock" is set out explicitly in the draft Bill. Clause 17(1)(a) states that the emergency must present a "serious" threat. In addition, clause 21(1)(a) provides that emergency regulations may only make provision in relation to a "serious" aspect or effect of the emergency. Clauses 18(1)(b) and 19(1)(b) state that a declaration of emergency may only be made if the use of emergency regulations must be necessary. Clause 21(1)(a) reinforces this by providing that emergency regulations can only make provision in so far as that provision is necessary for the purpose of preventing, controlling or mitigating a serious aspect or serious effect of the emergency. Clauses 18(2)(b) and 19(2)(b) require the declaration of emergency to state the parts or regions of the United Kingdom in relation to which the regulations may have effect. Clause 21(4)(f) provides that regulations may not relate to anything in, or done in, a part or region which is not specified in the declaration. Even within the region or part specified in the declaration, if the emergency is occurring in a geographical area that is not affected it will not be necessary, and therefore possible, to use emergency powers in that area.
9.  How would the "triple lock" criteria be applied in a case where an emergency was possible but not certain? For instance, in the case of flooding, action needs to be taken when there are warnings that waters are rising too high, rather than when they are already flooding. The Government believes that it is important that where possible risks should be addressed before they become emergencies. That is why the Government has arrangements to monitor and manage risk, and to scan the horizon for future threats. Preventative action is often taken - for example flood defences or inoculation programmes.

This principle of pre-emption is also true in situations where an emergency becomes not just possible but probable or imminent. In those circumstances, the Government will seek to take action as soon as possible to prevent the emergency happening or to reduce its impact.

In a serious and urgent situation, that action might require the exercise of emergency powers. So in line with that overall policy aim, the Bill has been drafted with the intention that pre-emptive action should be possible.

That is why clause 18(1)(a) refers to 'an emergency [that] has occurred, is occurring or is about to occur'. This provides for pre-emptive (and indeed retrospective) action. And the "necessity" test in clauses 18, 19 and 21 envisages that action may be taken where necessary to "prevent" an aspect or effect of the emergency.

In the case of pre-emptive action the 'triple lock' still applies - the key difference would be that the judgements about seriousness, necessity and extent would be based on a likely rather than actual impact.

10.  In the case of using powers under the draft Bill for animal health or flooding, the use of the triple lock would surely mean delay. Yet the problem in the foot and mouth epidemic in 2001 was that existing powers to ban animal movement were not used for three days, thereby doubling the scale of the eventual epidemic. If it was necessary to wait until the triple lock could be opened, would this not create further delay and potentially a more severe emergency? The Government believes that the right safeguards should be in place to prevent the misuse of emergency powers. That is the purpose of the 'triple lock' and the constraints in clause 21(4). The Government also believes that delays in taking action should be avoided wherever possible. That is why the draft Bill includes fall back options to prevent delay, such as clause 19 and clause 26(4). A balance has to be struck.

The triple lock is intended to be a significant hurdle, but its requirements are focussed on evidence rather than process - a demonstration of seriousness, extent and necessity. The Government does not consider that the triple lock will result in a bureaucratic delay.

Of the three elements, seriousness and extent are a key information requirement for Government and evidence on these issues would almost certainly be available. It would be possible to establish very quickly whether these tests were satisfied.

Although the necessity question might seem more demanding (and thus time consuming), in practice Government takes regular legal advice during emergencies. Departments have a clear sense of the scope of their existing powers, in part a consequence of the periodic process of drawing up draft emergency regulations Departments would be careful to ensure that they acted within their powers and would raise any concerns about shortfalls - indeed this would be likely to be the starting point for consideration of the use of emergency powers.

11.  What criteria would Ministers use to decide whether or not a threat is "serious" for the purpose of clause 17(1)? The term 'serious threat' as used in subsection (1) of clause 17 is qualified by subsections (2) to (7). These qualifications add detail about either the cause of effect of serious threats. A serious threat to, for example, human welfare is illustrated by the events listed at 17(2).

While the intention of this clause is to define 'emergency' and thus to establish a threshold below which a situation should not be regarded as such, the Government does not believe that an overly tight definition is sensible. For example the reference to loss of human life at 17(2)(a) could be qualified by a minimum number of deaths that would have to occur. Problems would arise when palpable emergencies did not cross inflexible thresholds.

There is also an element of the definition of 'serious threat' in Part 2 of the draft Bill that will be left for the process of Royal Proclamation (Section 18). A key element of that proclamation process is a decision that an emergency is occurring. If a situation was felt to constitute a 'serious threat' the other two parts of the 'triple lock' would still have to be satisfied before special legislative measures could be used.

(Note: many other jurisdictions have adopted far less precise approaches to the question of what constitutes an emergency, relying either on not defining the term or using more general language such as 'grave and immediate threat' or 'emergent danger'.)

(See also: Question 3)

12.  Would all incidents falling within the definition of major incidents at annex A of "Dealing with Disaster" fall within the definition of "serious" for the purpose of clause 17(1)? If not, please explain the difference. The definition of 'major incident' given in Annex A of 'Dealing with Disaster' is: "A major incident is any emergency that requires the implementation of special arrangements by one or more of the emergency services, the NHS or the local authority for:

·  the initial treatment, rescue and transport of a large number of casualties;

·  the involvement either directly or indirectly of large numbers of people;

·  the handling of a large number of enquiries likely to be generated both from the public and the news media, usually to the police;

·  the need for the large scale combined resources of two or more of the emergency services;

·  the mobilisation and organisation of the emergency services and supporting organisations, e.g. local authority, to cater for the threat of death, serious injury or homelessness to a large number of people."

This definition is referenced to the emergency planning manuals produced by the emergency services. The definition is widely used by the emergency services, the NHS, local authorities and others. It is generally used in the context of localised emergencies. It is likely that most, if not all, would satisfy the definition of emergency in Part 1 of the Bill.

But as a localised emergency, it would be unlikely to be sufficiently serious to trigger special legislative measures. If, however, the effects described above affected a region or greater area, that situation could be judged to be an emergency for the purposes of clause 17(1).

(Note: 'Dealing with Disaster' is published by the Cabinet Office, and provides guidelines to assist those who plan for emergencies. It was revised earlier this year

The current edition of 'Dealing with Disaster' is not intended to be read alongside the draft Bill. The Government's intention is that the current edition will be withdrawn once the Civil Contingencies Bill is enacted and replaced by a comprehensive local responder civil protection document which will be the vehicle for the guidance under the Bill.)

13.  Would any of the emergencies for which payments have been made under the Bellwin scheme since 1983 have triggered a use of the emergency powers at Part 2 of the Bill (i.e. would they have met the triple lock criteria at page 28 of the consultation paper)? A summary of payments under the Bellwin Scheme over the last 15 years is attached as Annex A.

The emergencies for which the payments were made would be unlikely to trigger the use of emergency powers under Part 2 of the Bill. While a number of the emergencies were serious, few attained sufficient geographical extent. Of those that might have, all were manageable within existing powers available to responder organisations.

14.  Would the Docklands or Manchester bombings in 1996, the fuel crises in 2000, or September 11th have triggered a use of the emergency powers at Part 2 of the Bill (ie would they have met the triple lock criteria at page 28 of the consultation paper)? Any consideration of whether the emergency powers available in the draft Bill might have been used had they been available in the past should focus on the triple lock, just as any future use would do. Situations would have to be serious, they would have to require special legislative measures, and they would have to a geographical area as large as a region or greater.

In light of those requirements, it seems unlikely that either the Manchester bomb or the Docklands bomb would have led to special legislative measures as the geographical impact would not have met the requirements of the Bill. Single seated events would not be expected to pass this test unless consequential effects were significant (for example, mass casualties requiring a national NHS effort, massive disruption to transport networks). Both incidents, while serious, had relatively localised consequences.

Both events would also be likely to fail the 'necessary' test. Successive Government's built up a range of legislative practical measures to combat Northern Irish terrorism and so even large bombings would be within the legislative and practical competence of the response agencies.

A September 11-style event occurring in the UK might require the use of special legislative measures, though much would depend on the characteristics of the situation. It would pass the 'seriousness' test, and would be likely to pass the 'extent' test for a regional emergency. Whether the incident met the 'necessary' test would depend on whether new powers were 'necessary', for example to restrict movement in affected areas or to restrict access to the vicinity of other potential targets. A massive multi-seated attack might also put strain on available resources, and so powers of requisition might be needed.

The fuel crisis of 2000 is typical of the sort of serious, wide area emergency during which the Government might consider the use of emergency powers. It would pass both the 'seriousness' and 'extent' tests of the 'triple lock'.

In dealing with problems with the fuel supply, the Government's principle legislative tool is the Energy Act 1976. This Act allows the Government to take action in relation to the supply of fuel and its use. The Act does not allow the Government to deal with consequential effects - for example the impact on essential public services.

The fuel crisis of 2000 had a significant impact on essential public services. However, the crisis was resolved before remedial action became necessary. Had the situation continued, measures might have been required that went beyond the existing legislative provision. In that sort of circumstance the special legislative measures that the draft Civil Contingencies Bill makes available would have been used.

15.  Is it the Cabinet Office's view that the prerogative power at clause 18 would never be exercised without, or against, ministerial advice even in an extreme situation? It is a long established part of the UK's constitution that the Queen only ever acts on the advice of Her Ministers.
16.  The consultation paper invites views on an alternative method for making a Proclamation of Emergency (page 31). What is the scope in the process for a Minister's decision to be reviewed before a state of emergency is declared? In the event that a Royal Proclamation of emergency could not be arranged without occasioning serious delay, the draft Bill provides for the Secretary of State to make the declaration of emergency and the emergency regulations. The Government believes that this is a sensible precaution.

The draft Bill constrains the actions of the Secretary of State in two ways. Firstly, clause 19 makes clear that the fallback can only be used in a very narrow range of circumstances. Secondly, the Secretary of State is still subject to the 'triple lock'. Any possible action would be reviewed against both these constraints.

The Ministerial decision would also be reviewed within Government. The convention of collective decision making by Cabinet would apply, and the decision to use special legislative measures would require collective agreement. Clause 26 extends this review process to the Devolved Administrations.

17.  Do you envisage a role for the Council of State in declaring an emergency in the case of the unavailability of The Queen (for whatever reason)? Or would the Secretary of State's powers under clause 19 be invoked automatically in such circumstances? A proclamation by the Council of State was used on 9 February 1972 when the Queen was on a visit to South East Asia)? The Bill does not affect in any way the powers of Her Majesty under the Regency Act 1937 to delegate her functions to Counsellors of State. If Her Majesty had delegated her functions under the Bill to Counsellors of State, any proclamation would be made by the Counsellors, unless it would cause serious delay that may result in serious damage (clause 19(1)(c) and 19(3)). The Secretary of State's powers under clause 19 would not therefore be invoked automatically.
18.  What arrangements would be followed if a state of emergency had to be proclaimed while Parliament was dissolved? Declarations of emergency can be made under the Bill by The Queen (or a Secretary of State if it would cause serious delay to arrange for a Royal Proclamation). Such a Proclamation is made at a meeting of the Privy Council (the Privy Council still exists regardless of any period of dissolution). The Queen can therefore declare an emergency even when Parliament has been dissolved.

When Parliament has been dissolved Ministers still retain office during the ensuing general election. Thus even when Parliament has been dissolved the Secretary of State is also in a position to declare an emergency should there be serious delay in obtaining a Royal Proclamation.

It is not possible to 'undissolve' Parliament. If Parliament stands dissolved then there is no Parliament to recall/reinstate. Under clause 24(6), the Secretary of State must as soon as is reasonably practicable, lay any regulations made under clause 21, before Parliament. As during a dissolution there is no Parliament, it would be necessary for the Secretary of State to wait for the new Parliament to be convened. In the meantime, the regulations would still carry legal force.

Human Rights
19.  If, as the Government suggested in the Consultation document, there is nothing in the draft Bill that conflicts with the Convention on Human Rights, why is it proposing to prevent a statement of its compatibility being made before Parliament (as is required under the Human Rights Act 1998)? The Minister in charge of the Bill will make a statement of compatibility as required by the Human Rights Act when the Bill is introduced. The statement will be published on the face of the Bill and in the explanatory notes, in the usual way.

As indicated at paragraph 61 of the Explanatory Notes that accompany the draft Bill, the Government considers that the Bill as it currently stands is compatible with the Convention rights.

20.  Will the Government's powers under the Act be subject to the International Covenant on Civil and Political Rights, ratified by the UK in May 1976? Would it help to clarify the UK's position under international law if a clause were included stating that actions taken under the Bill must be compatible with the Covenant (as in the Canadian Act)?

Article 4 of the Covenant states that at a time of a "public emergency which threatens the life of the nation", States may take measures "derogating their obligations under the existing Covenant to the extent strictly required by the exigencies of the situation". These measures must not be inconsistent with other obligations under international law and must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. There can be no derogation from the articles proclaiming the right to life, protection from torture, degrading treatment or slavery, recognition as a person before the law, and freedom of thought, conscience and religion. There can also be no derogation from articles forbidding the conviction of a criminal offence which did not constitute an offence when it was committed, and imprisonment on the grounds of inability to fulfil a contractual obligation.

Although the ICCPR has not been incorporated into UK law, the Government would certainly take into account the international obligations of the United Kingdom before taking action under the Bill.
21.  What is there in the draft Bill to ensure that the powers granted by the Bill will not be abused in the event of an emergency? Clause 21(1)(a) states that emergency regulations can be made only so far as it is necessary for the purpose of preventing, controlling or mitigating a serious aspect or serious effect of the emergency. Attempts to make regulations beyond that which is necessary may lead to judicial review proceedings. Clause 21(4) also specifically bars emergency regulations from interfering with certain rights e.g. clause 21(4)(a), which prohibits the regulations from requiring a person to provide military or industrial service, reflects the provisions of Article 4 ECHR (forced labour).

In addition, the Human Rights Act will operate so as to limit the exercise of the powers under the Bill (albeit that clause 25 would, if enacted, affect the remedies which may be sought in relation to emergency regulations.)

Regulations (clause 21)
22.  When will drafts of the principal regulations and orders to be made under the Bill be ready for consideration by the Committee? The Government intends to make as much information available as possible to the Joint Committee about the shape and content of the regulations to be made under the Bill.

Regulations to be made under Part 1 of the Bill are still under development. While the Government has this process well underway, significant changes might be necessary as a consequence of the consultation process (particularly questions 1, 2, 3, 4 and 5). In light of this, the Government intends to make further detail on the regulations available to the Committee during October.

In order to provide an indication of the sort of regulations that might be made under Part 2, a copy of the existing draft emergency regulations has already been passed to the Committee to consider, on the understanding that it should be treated as confidential. A review of these is now underway and includes an exercise to identify an indicative list of draft regulations that would be possible under the draft Bill as this has a wider scope than the existing legislation.

23.  Is there any reason why "standard" regulations cannot be attached to the Bill, allowing them to be debated and approved by Parliament as part of the enabling legislation, while still allowing discretion to introduce additional, event-specific, regulations when an emergency is declared. In the state of emergency called in November 1973, the then Home Secretary stated: "It has been the practice of successive Governments - I am sure that it is a wise one - to make a complete set of emergency regulations at the outset."[397] The Government believes that the draft Bill should offer a fuller indication of the likely uses of special legislative measures than the 1920 Act currently does. That is why Clause 21 of the draft Bill sets out a list of likely uses for the regulations which Parliament should consider as indicative of the type of regulations that could be made.

There are three strong arguments against making the full set of draft regulations available.

Firstly, the draft regulations are subject to frequent change. They are updated at least every two years, and more often if necessary.

Secondly, 'standard' (or publication of draft) regulations would not necessarily offer a clear indication of the content of future emergency regulations. By their very nature emergencies are unpredictable and can occur in, and include, a very wide-range of circumstances and events. Emergency regulations will in large measure be tailored to the particular emergency at hand. The draft regulations are very much a starting point, and it is highly likely that any actual regulations would diverge from the standard draft.

Thirdly, draft regulations will be designed to respond to emergencies including terrorism and disruptive industrial action. Wide access to draft emergency regulations could highlight both potential weaknesses or targets and likely counter-measures.

24.  Regulations issued during an emergency which relate wholly or partly to Scotland, Northern Ireland and Wales "may not be made unless the Secretary of State has consulted with" Scottish Ministers, the First Minister and deputy First Minister in Northern Ireland or the National Assembly for Wales (clause 26 (1-4)). What reasons are there for not applying the same levels of consultation in England? The devolved administrations have a direct involvement in the legislation making process. As a consequence, the Government believes this involvement should continue where possible if the use of special legislative measures is necessary. This involvement is also crucial because of the important role the devolved administrations play in co-ordinating response to emergencies.

There are currently no administrations in England which enjoy comparable levels of legislative competence. This situation will continue to be reviewed as part of the development of the Government's policy on English Regional Assemblies. Where responsibilities have not been devolved in England, those responsibilities continue to sit with UK Government Ministers. Those Ministers will obviously be part of the process to agree and deploy emergency regulations.

In practice, consultation might run even more widely. In making decisions about the use of special legislative measures, the Government would work closely with local agencies or their representatives which would be delivering the front line of any response.

25.  What format is envisaged for the consultations with devolved administrations under clauses 12 and 26? Would they be consulted about the content of draft regulations? Would they be consulted about:

i) which regulations would apply?

ii) who should be appointed emergency coordinator in their area and about the terms of the appointment?

Officials are in discussion with the devolved administrations as to the exact format of consultation under clause 26, which is likely to be enshrined in concordat. The starting point is that they should play as full a role as possible so far as this does not risk delaying effective response. This would include consultation on the use and nature of regulations and the identity and functions of the emergency co-ordinator wherever possible.
26.  In what possible circumstances does the Government envisage needing the powers to prohibit, or enable the prohibition of, assemblies of specified kinds, at specified places or at specified times? How would it respond to the view that this is simply a power to crush political dissent? A range of circumstances exists in which the Government might need to prohibit large gatherings of people. Such gatherings may be undesirable if, for example, there is a contagious epidemic, a risk of a mass-casualty terrorist attack or severe disruption to transportation.

In light of these and other examples, the Government believes that it is necessary to provide for such situations under the draft Bill. The 'triple lock' would continue to provide a safeguard against misuse.

27.  Under clause 21(3)(l), regulations may "confer jurisdiction on a court or tribunal (which may include a tribunal established by the regulations)", but under clause 21 (4)(d), regulations may not "create an offence which is punishable without trial before a magistrates' court, the Crown Court, the district court or the sheriff." What is the envisaged point of a tribunal established under Clause 21 (3)(1), and what cases would it be likely to handle? Clause 21(4)(c) provides that emergency regulations may not create any offence other than that of failing to comply with the regulations or action taken under the regulations or obstructing a person in the performance of a function under or by virtue of the regulations. The class of criminal offences that can be created under emergency regulations is therefore very limited. It is unlikely that it would be necessary to establish a new tribunal to deal with these offences.

However, there would be scope, for example, to confer the jurisdiction of one tribunal on another type of tribunal where it was necessary and not possible in the emergency situation for the first to hear it (e.g. if those who would normally sit on the Tribunal are caught up themselves in the emergency situation).

It is more likely that a tribunal would need to be established to deal with non-criminal matters. For example, it might be appropriate to establish a tribunal to assess claims under any compensation provision made by emergency regulations.

All of this is of course bound by the test in clause 21(1) of necessity.

28.  Which Royal Prerogatives does the Cabinet Office consider would fall within the powers conferred by clause 21(3)? Prerogative powers are powers, privileges, rights and other interests that are recognised in law as pertaining to the Crown even though they have not been vested in the Crown by Acts of Parliament, All of the Royal Prerogatives would fall within clause 21(3) but it would be impossible to list them all.

Examples would include the Prerogatives of issuing passports, creating a corporation by a royal charter of incorporation, pardoning offenders and powers in relation to coinage.

Once again the overall test of necessity would have to be established.

29.  Which discretionary functions of Ministers of the Crown do you consider would fall within the powers conferred by clause 21(3)(a)? Any discretionary function could be conferred on Ministers of the Crown by clause 21(3)(a) provided it is necessary to confer it.
30.  The Civil Defence Act 1948 imposes the duty on Ministers to take steps necessary or expedient for civil defence purposes. What duties will the draft Bill impose on Ministers in respect of civil defence? If they are not provided on the face of the Bill, what duties will rest on Ministers? Where are the provisions in respect of duties? The Civil Defence Act 1948 provides for "the designated Minister to take such steps as appear to him from time to time to be necessary or expedient for civil defence purposes", in particular the formation of civil defence forces, civil defence activities at the local level, instruction of members of the public for civil defence, holding civil defence equipment and the carrying out of civil defence works.

The 1948 Act also defines civil defence as "any measures not amounting to actual combat for affording defence against hostile attack by a foreign power or for depriving … the whole of part of its effect."

These provisions will be repealed by the draft Bill. There is wide acceptance that civil defence no longer constitutes a stand alone activity as envisaged in 1948. This is very much part of a longer term trend with civil defence activities regarded as a subset of a much broader spectrum of emergencies requiring a generic response capacity - an approach known as integrated emergency management. This approach was given legislative effect by the 1986 Civil Protection in Peacetime Act, which provided for the use of civil defence resources for other types of emergency, and the 1993 regulations issued under the 1948 Act.

In practical terms, many of the measures outlined in the 1948 Act have been rendered redundant by the changing nature of the threat of hostile attack - civil defence forces were disbanded in the 1960s and civil defence works are no longer regarded as a necessary counter-measure.

The Bill does not impose any duties on Ministers in respect of civil defence. The Government believes that sufficient legislative provision already exists to allow the Government to take the necessary action in respect of civil defence, both as a subset of civil contingencies and of home defence. This existing provision is supported by the mechanisms outlined in answer 31.

The Bill does provide for civil defence planning to be undertaken if necessary by local responders. Duties in regard to Civil Defence are at 1(1)(d), 1(5), 1(7)-(10), Clause 2 et sub. It is not proposed to develop regulations in relation to these powers at the present time. The scope of the regulation making powers in Part 2 of the draft Bill also includes civil defence.

31.  How does the Government ensure and test that all departments fulfil their responsibilities to plan, prepare, train and exercise for handling incidents and emergencies (chapter 5.5 of the Consultation Document)? The Government is committed to ensuring that departments are able to plan for and respond to emergencies. There are several key strands which underpin this preparedness:

-  Clear responsibilities. Under the Lead Government Department principle, departments take the lead for contingency planning and emergency response in their own areas of responsibility. The Lead Government Department list is a public document, laid before Parliament, and updated whenever necessary.

-  Co-ordination and delivery. The Civil Contingencies Secretariat of the Cabinet Office supports the work of departments, co-ordinating cross-departmental initiatives and monitoring delivery. The Capabilities programme, based around 17 broad workstreams, is the cornerstone of this delivery management.

-  Training. The Emergency Planning College, working with the Centre for Policy and Management Studies, ensures that the right training is available for those staff in central government involved in this area.

-  Exercising. The Government is developing a comprehensive exercise programme to test planning (see answer 40).

-  Audit. A regime based upon the embedding of contingency planning assurance into the overall Departmental Assurance process is at present under development. The Government expects to make details of the new audit regime available during the autumn.

32.  The Civil Defence Act 1948 contains a power at section 2 that empowers the Minister to act in place of a local authority or police authority which fails or refuses to act and to charge them for the costs incurred. Has this power ever been used? It appears that the power has not been repeated in the draft Bill. What considerations led the Cabinet Office to the view that the provision was no longer required? Research by the Bill Team has not identified any instances in which the intervention powers in section 2 of the 1948 have been used.

While the power in the 1948 Act has not been repeated in the draft Bill, powers of intervention will still be available to Ministers.

Part 1 of the draft Bill gives powers to the Minister under clauses 5 by order and 7 to be more directive in his approach to the performance of local responders, if that is necessary. If need be, enforcement action can be taken under clause 9.

More generally, the Government believes that the powers to intervene in the Local Government Act 1999 provide a more appropriate mechanism for dealing with failing performance. These powers apply to the generality of local authority functions and bring civil protection further into the mainstream.

33.  Would the suspension or modification of an Act of Parliament under the powers at clause 21(3) continue beyond the end of the state of emergency and the lapsing of regulations made under clauses 20 and 21? No. Suspension or modification of an Act of Parliament can only be achieved through regulations. All regulations lapse when a proclamation or ministerial order stating that use of special legislative measures is necessary lapses (see clause 23). Therefore any suspension or modification of an Act of Parliament is only possible while regulations are extant.
34.  What is the position of the National Criminal Intelligence Service and National Crime Squad under the Bill? Would they be expected to attend forums or pass on information? Local police forces will act as a Category 1 responder in accordance with their functions and in the light of risk assessment. Although many emergencies occur as the result of a crime - and the police will protect the emergency site as a potential "scene of crime" for investigation by specialist officers - officers with a focus on crime are not normally included in multi-agency emergency planning arrangements. Their interests are represented by police officers concerned with public order and emergency planning.

So neither NCIS nor NCS would be expected to attend local resilience forums. They would instead continue to provide support to individual police forces, which in turn would feed it into the emergency planning process as necessary.

35.  What is the difference between "functions conferred or imposed by or by virtue of an enactment", "functions of Ministers of the Crown (or their departments)", and "functions of persons holding office under the Crown" (clause 1(6))? "Functions conferred or imposed by or by virtue of an enactment" means functions conferred on anyone (e.g. Ministers of the Crown, regulatory bodies) by way of an enactment.

"Functions of Ministers of the Crown (or their departments)" would include functions conferred on a Minister of the Crown by virtue of an enactment but would also include functions conferred by contract, common law or the prerogative.

"Functions of persons holding office under the Crown" would include functions conferred by virtue of an enactment but would also include functions conferred by contract, common law or the prerogative. Whether a person holds office under the Crown will depend on the circumstances.

While these categories of functions do overlap, the Government considers that it is necessary to refer to each of these categories to ensure that the concept of a threat to the political, administrative or economic stability is sufficiently flexible.

36.  The draft Bill mentions the Secretary of State at some points and Minister of the Crown at other places. Why, and what is the significance? The reference to "Secretary of State" means any of Her Majesty's Principal Secretaries of State (see the Interpretation Act 1978). "Minister of the Crown" is defined by the Ministers of the Crown Act 1975 as the "holder of an office in Her Majesty's Government in the United Kingdom, and includes the Treasury, the Board of Trade and the Defence Council". Thus "Minister of the Crown" has a broader meaning and includes Ministers who are not Secretaries of State

Functions under Part 1 of the Bill are conferred on Ministers of the Crown. This reflects the range of Ministers who may need to take action under that Part of the Bill. In particular, it should be noted that the Minister currently responsible for the Civil Contingencies Secretariat is not a Secretary of State.

Functions under Part 2 of the Bill are conferred on the Secretary of State. This reflects the Government's view that action under Part 2 is a major undertaking and so should only be taken by a senior Government Minister.

Compensation
37.  In what possible circumstances could the Bill Team envisage the Government needing the powers to:

·  provide for or enable the requisition or confiscation of property without compensation; or

·  provide for or enable the destruction of property, animal life or plant life without compensation?

How would you respond to the argument that compensation should be paid, both because of natural justice and so as to gain consent?

The Government believes that there are circumstances in which it might be appropriate to offer compensation to individuals or organisations if they are negatively affected by emergency regulations. That is why the Bill allows for legitimate compensation in appropriate circumstances.

However, there should be no assumption that compensation would be automatic in all circumstances. In some situations, for example in respect of insured losses or where an individual or organisation is in part to blame for their own losses, automatic compensation would not be appropriate.

38.  Why has this draft Bill broken with UK and international precedent regarding compensation if chattels/land is damaged as a result of action taken under emergency planning legislation? During the state of emergency declared in 1973, regulations 30 and 31 required the Government to pay compensation if they requisitioned chattels or took possession of land. Civil contingencies legislation in New Zealand and Canada also makes provision for compensation if property, animal or plant life is damaged through action taken under the Acts. See answer 37.

It is also worth noting that the Emergency Powers Act 1920 does not require the payment of compensation. Compensation was provided for in relation to action under that Act when the Government considered it appropriate. Thus the position under the Bill replicates that under the current legislation.

Funding
39.  The Consultation document states that "the centre needs to be able to [make] the resources of central government available if required and tackl[e] the most serious emergencies using the full range of its powers"(p6). The draft Bill makes provision for central government to use the full range of its powers, but where does it provide for making the resources of central government available? What arrangements would be put in place to assess the resources required and to enable the resources to be paid? The purpose of Part 2 of the draft Bill is to allow the Government to take emergency powers. The provision of resources to support these special legislative measures does not necessarily require specific legislative support (authority for expenditure already exists in many instances). Where additional authority was required it could be conferred through the emergency regulations.

Resource requirements would be assessed on the same basis whether the resources were being deployed using existing powers or emergency powers. Assessments would take place on the basis of discussions between central government departments, drawing on evidence including the nature of the situation, existing resources and likley future requirements. The current public expenditure framework has the flexibility to allow the Government to manage any unexpected changes, and to target resources where they are needed.

40.  Central Government has stressed the importance of carrying out exercises (Ms Susan Scholefield to the Defence Select Committee on 20 March 2003). How many more exercises need to be carried out, how much would it cost to finance the optimum number of exercises and where will the finance come from? The Government believes that it is right for contingency planning for emergencies to be tested through exercises. This is an important element of the validation and review process. A distinction should be made between exercises carried out at the instigation of central government and regional government offices to test central and regional arrangements, and those carried out at a local level. The series of exercises should also not be regarded as a closed project with a beginning and end; rather, exercises are always a part of the emergency planning process. It is therefore not possible to say how many more exercises need to be carried, as exercises will continue as long as there is emergency planning.

Nevertheless, the Government does see a need to ensure the right level of exercising at all levels.

The draft Bill provides for exercising as part of the emergency planning process at clause 2(3)(k). Generally, local exercise programmes would be a mater for local determination, and driven by local planning requirements. While powers exist in the draft Bill for Ministers to determine how often these exercises should be carried out, it is proposed that this would be a matter for guidance rather than regulation in the first instance. Local exercises are and will continue to be funded from within local civil protection resources.

The Government also has a national exercise programme. A cross-governmental working party provides a formal mechanism for reviewing Departmental exercise plans covering a comprehensive range of domestic challenges and counter terrorist areas of activity.

The aim of this group is to create a prioritised programme of exercises that will reflect and test effectively the range of Lead Government Department responsibilities and the involvement of the Devolved Administrations, regional and local authorities and interdependent communities of interest. As at the local level, the programme runs on a rolling basis to validate and review government contingency plans.

In addition, the UK is increasingly being engaged in exercises with foreign partners, either on a bilateral basis or through multilateral forums i.e. NATO and the EU.

Costs for exercises are a departmental responsibility and, therefore, are incorporated within respective departmental budgets. No central exercise budget exists, nor are their any plans to establish one.

41.  Does the Government consider that the civil contingency arrangements which have emerged since 2001 and which would be enacted by the Bill require greater resources than those in operation before 2001? The Government has recognised significant new resource pressures in the UK's resilience since 2001. The changing risk assessment has led to substantial new investment in a range of areas. A summary of this additional expenditure was set out in the Draft Civil Contingencies Bill Consultation Document (p 13-14). The Government keeps this issue under close review.

The Government believes that the current level of funding is sufficient to support the basic responsibilities that flow from the Bill. In large measure the draft Bill consolidates existing practice, for which organisations are already funded. The consultation process specifically invites views on this position.

The same funding neutrality is broadly true for private sector bodies impacted by the draft Bill. Most of the organisations in Category 2 are already subject to civil protection requirements as part of their regulatory regime. A fuller assessment of this is set out in the Partial Regulatory Impact Assessment Part 1. This RIA shows that overall the benefits out weigh the costs, and that the regulatory impact is minimal.

42.  Does the Government propose to increase or reduce the resources for civil contingencies distributed via Revenue Support Grant once Civil Defence Grant is abolished? The Government has no plans to change the level of funding for civil contingencies outside of the usual public expenditure processes. The switch from specific grant to Revenue Support Grant should be regarded as nothing more than a change in the funding mechanism.
43.  If Civil Defence Grant were replaced with funding provided through Revenue Support Grant, how would Parliament know how much support the Government was giving to local authorities to support planning for civil contingencies? The overall amount provided by Government to local authorities for civil contingencies will be identifiable, as a Cabinet Office transfer to ODPM. The amount will be set out in the material provided to local government at the time of the announcement of the Government's proposals for funding of local authority expenditure. Provision currently stands at £19million. If additional funds are thought to be appropriate, Cabinet Office will bid for them in the usual way and transfer the approved amounts to ODPM, for distribution through RSG.
44.  Will the Government provide additional resources for local authorities to: (a) enter business recovery contracts with private sector providers; (b) purchase spare capacity when acquiring a new system or facility in order to be able to provide assistance to other local authorities under a mutual support arrangement; or (c) meet the costs of carrying out exercises? The Government expects that the funding currently provided to local authorities would cover all these elements:

(a)  many local authorities already have well developed business recovery arrangements from within existing resources.

(b)  many mutual aid agreements already exist between local authorities. This mutual aid is provided on the basis of existing capacity, rather than a spare capacity over and above that.

(c)  Exercising is regarded as a central element of the planning process. The costs of exercising therefore already fall within existing civil protection budgets.

45.  If a voluntary organisation wished to become involved with contingency planning, would local authorities be able to include them in, for example, local meetings and to pass papers to them? Would local authorities be able to pay their costs of attending meetings or carrying out civil contingency work? The Government continues to place a high value on the role the voluntary sector plays in the response to emergencies, and will continue to encourage their involvement in local multi-agency planning and response through the guidance that will underpin the new legislation.

So local authorities would be able to include voluntary agencies in local planning, and would be able to pay their costs of carrying out civil contingencies work.

46.  Why does the Bill not include a mechanism to release funds to those carrying out functions under emergency powers regulations seeking to prevent or control a crisis? Emergency regulations under Part 2 of the draft Bill could, if necessary, be used to release funds as described.
47.  Why has the Government decided not to bring the Bellwin scheme within the Civil Contingencies Bill? The Bellwin Scheme is based on a statutory provision (Section 155 of the Local Government and Housing Act 1989) which 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 in which they were endangered. It is not designed to supplement main spending programmes. As a result it has not been used for incidents such as terrorist bombs in London and Manchester, riots in various parts of the country or block of flats in danger of falling down due to deteriorating conditions of maintenance.

A review of the Scheme was conducted in 2001 following which it was felt that a change to the statutory basis of the Scheme would not be appropriate.

48.  On average how long does it take for funds to be released under Bellwin? Ministers are committed to making payments within 15 working days of receiving valid claims. The majority of payments are made within this time.
49.  Does Bellwin include interest on moneys borrowed pending reimbursement under the scheme? No. The statute provides for reimbursement of costs incurred on relevant activities only.
50.  How many applications for reimbursement under Bellwin have been refused since the scheme came into operation? What matters were the subject of these applications and how much money was involved? Detailed statistics are not kept in relation to the number of successful and unsuccessful applications made. In practice, however, rejections are very rare because detailed guidance is issued at the beginning of each financial year setting out the criteria for reimbursement. This reduces the likelihood of authorities submitting claims which do not qualify under the scheme..
Military
51.  What is the significance and differences between the terms used to cover military support to the civil authorities? For example, "Dealing with Disaster" refers to Military Aid to the Civil Community (page 14) but the Minister of State for the Armed Forces (Mr Ingram) in replying to a question from Mr Lansley referred to Military Aid to the Civil Power (Official Report, 25 Feb 2003, Column 444W). Military Aid to the Civil Authorities is the generic term for all military assistance to the civil authorities. It is divided into three main categories, depending upon the precise circumstances in which it is provided, as follows:

Military Aid to the Civil Power (MACP) is the provision of military assistance to the Civil Power in the maintenance of law, order and public safety using specialist capabilities or equipment, in situations beyond the capacity of the Civil Power.

Military Assistance to Other Government Departments (MAGD) is assistance provided by the Services on urgent work of national importance or in maintaining supplies and services essential to life, health and safety of the community, especially but not exclusively during industrial disputes.

Military Aid to the Civil Community(MACC) falls into three categories:

·  Category A: Assistance in times of emergency such as natural disasters or major accidents. Assistance id generally provided to the emergency services (police, fire, ambulance, maritime search and rescue support to HM Coastguard and - when under direction - the mountain/cave rescue service.)

·  Category B: Short-term routine assistance on special projects of significant value to the civil community.

·  Category C: The full-time attachment of volunteers to social services (or similar) organisations for specific periods."

52.  In the past 20 years, on how many occasions, and for what purposes, has Military Aid to the Civil Community been provided and, if there is a difference, to the Civil Power? How much of the cost has been recovered from the beneficiaries? In how many instances have costs been waived and what value of charges has been waived? It is not possible to provide full details of all deployments undertaken over the last 20 years or to provide details of costs charged and waived. It is, however, possible to illustrate the extent of the provision of the three categories of Military Assistance and the principles under which charges are raised.

Military Aid to the Civil Power (MACP) is defined as 'the provision of military assistance to the Civil Power in the maintenance of law, order and public safety using specialist capabilities or equipment, in situations beyond the capacity of the Civil Power.' (Provision of support to the Police Service of Northern Ireland is based on the same principles as MACP, but is treated as a separate sub-category of the overall provision. It has therefore been excluded from further consideration.)

As the Minister of State for the Armed Forces (Mr Ingram) indicated in his reply to Andrew Lansley on 25 February 2003, MACP support is for the most part routine, and is linked to active police investigations and operations. By far the largest single category concerns explosive devices. There were 957 occasions in 2001 when experts from the Armed Forces were asked by the police to provide support in the investigation of improvised explosive devices, and 431 occasions in 2002. The provision of other support, the nature of which varies considerably, is authorised on a case by case basis. On average between 30 and 40 of these requests are authorised each year. A small proportion of MACP requests are related to the terrorist threat, but by no means all. (Official Report, 25 Feb 2003, Column 444W).

The figures quoted in the Official Report on 25 February illustrate the average number of calls on MACP support. Details of the kinds of incidents attended and the capabilities deployed cannot be provided in an unclassified format.

Military Assistance to Other Government Departments (MAGD) is defined as 'assistance provided by the Services on urgent work of national importance or in maintaining supplies and services essential to the life, health and safety of the community, especially but not exclusively during industrial disputes.' MAGD support has been provided regularly during local authority fire strikes as well as during the recent national fire dispute. It was also provided (in support of the DTI) during the fuel dispute in the autumn of 2000 and (in support of MAFF/DEFRA) during the 2001 foot and mouth epidemic. A list of MAGD operations since 1983 is attached (at Annex B).

Military Aid to the Civil Community (MACC) falls into three categories:

·  Category A: Assistance in times of emergency such as natural disasters or major accidents. Assistance is generally provided to the emergency services (police, fire, ambulance, maritime search and rescue support to HM Coastguard and - when under direction - the mountain/cave rescue service).

·  Category B: Short-term routine assistance on special projects of significant social value to the civil community.

·  Category C: The full-time attachment of volunteers to social services (or similar) organisations for specific periods.

An illustrative list of MACC Category A incidents since 1983 is attached at Annex C. In view of the fact that Category A incorporates the immediate response to an emergency, we cannot guarantee that this covers all of the incidents for which this support has been provided. MACC Category B and Category C support fall outside the scope of support to the civil authorities during emergencies.

COSTS

Regrettably it is impossible to provide detailed information on the costs charged for Military Aid to the Civil Authorities. Costs of individual operations are generally low and are by and large reimbursed direct to the budgets which incurred the costs. Some standing operations are partially funded by other government departments (for instance the Home Office contributes about £2M per annum to the cost of explosive ordnance disposal support to the police).

MAGD operations tend to lead to the greatest costs and a table showing the costs charged to other government departments as a result of recent MAGD operations is therefore attached at Annex D. We would suggest caution when comparing the costs of these operations. In particular, during the fuel dispute and foot and mouth epidemics the costs of additional equipment, vehicle hire etc, were generally borne directly by the requesting department. During the fire dispute the MOD purchased additional equipment and hired vehicles etc and then sought reimbursement of these costs from the requesting Department.

CHARGING PRINCIPLES

MOD policy is based on Chapter 23 of Government Accounting (GA). Goods and services provided to the department or other agency or authority having policy and therefore financial responsibility should be charged for unless there are exceptional circumstances. The purpose is to ensure visibility and to give the customer department a greater incentive to use assets efficiently and economically.

Parliament votes MOD its money for defence purposes only. If defence assets are used to carry out tasks for which another government department has prime responsibility, charges need to be raised or else MOD will be left bearing improper expenditure on its budget.

Levels of Charge: Government Accounting takes as its starting point the full cost of an activity. In deciding whether to depart from full-cost charging for unfunded activities, however, MOD takes account of whether the activity can be carried out from within spare capacity, the detriment to core defence tasks and the training value to MOD. Abatement generally means charging a rate variously referred to as "no-loss", "extra" or "additional" cost - i.e. the amount which would not have been incurred had the activity not taken place. In sum, MOD seeks to ensure that the defence budget does not suffer as a result of the unscheduled activity but that it makes no gain either.

Areas where MOD should in strictness charge full costs are where the activity is considered

a.  to bring detriment to a priority defence task, and/or

b.  to require MOD to increase its number of military personnel specifically to support another department's responsibilities.

A prime example of the former is an activity that becomes sufficiently protracted to be regarded as routine rather than emergency in nature. Even with due regard to an interdepartmental agreement (dating from 1982) concerning no-loss charging regime for fire strikes, MOD has for some years supported the need to change to full-cost charging for firefighting during an extended strike period.

Cost Waivers: In 2001 MOD simplified its charging regime in the UK for MACC assistance, allowing emergency assistance to be given free where there is a danger to life (rather than only "immediate" danger which applied previously), and at full cost once the danger has passed. Emergency MACC is a rapid response by the Services to sudden disaster: it and its charging regime should not be confused with MACP or MAGD. Non-emergency MACC attracts charges the level of which largely depends on the extent of the activity's advantage to MOD.

53.  What is the basis on which military support to civil authorities is provided? In a written answer to Mr Lansley on 25 Feb 2003, the Minister of State for the Armed Forces (Mr Ingram) said that, in common with all armed forces deployments, the provision of Military Aid to the Civil Power (MACP) is authorised by a Minister within the Ministry of Defence, following a request from the police. The legal basis for this is the common law duty of every citizen to provide reasonable support to the police should they request it. The primacy of the police is recognised at all times. (Official Report, 25 Feb 2003, Column 444W). Would troops deployed following a state of emergency be deployed under this common law power? What other powers could be used? Can forces be moved or deployed by Royal Prerogative? All deployments of the Armed Forces are authorised under the Royal Prerogative, the Prerogative being vested in the Defence Council, and in particular in its chairman, the Secretary of State for Defence. With the Secretary of State's agreement, other MOD Ministers can also authorise deployments. In practice, most MACA deployments are authorised by the Minister of State for the Armed Forces.

Use of the Royal Prerogative must accord with common, statute, and international law. The general legal basis which enables the Secretary of State to authorise the deployment of the Armed Forces in support of the police (MACP) is that outlined in the answer given to Mr Lansley on 25 Feb 2003: i.e. the common law duty of every citizen to provide reasonable support.

The general legal basis for MAGD is section 2 of the Emergency Powers Act 1964. This enables the Defence Council to instruct the Armed Forces to undertake 'agricultural and other work of urgent national importance' that would not normally fall within the remit of the Armed Forces. Procedures exist within the MOD to ensure that the powers under this Act are properly and reasonably exercised, including, in particular, the need for a specific Defence Council Order to be signed by two members of the Defence Council, on the same day, prior to any deployment. (MAGD.)

MACC Category A is authorised under a Defence Council Order signed in 1983 (described in Queen's Regulations). Unit commanders are authorised to provide support (generally to the police or other emergency services) on their own authority, but only when lives are in danger, using resources under their direct command, and following a clear request from the police or other emergency services for that support. They then seek full authorisation through their command chain, which includes MOD Ministers. Sustaining support past the point when lives are in danger requires explicit prior authorisation from a Defence Minister.

Support to the police in the investigation of explosive devices has been provided at least since the First World War. Exceptionally, individual approval for each investigation into explosive ordnance is not required, though significant and unusual events are reported to MOD Ministers.

In addition to the need to ensure proper authorisation under the Royal Prerogative, MOD Ministers also consider the 'reasonableness' of any request and any other issues which may arise, before approving a deployment. These considerations include policy and cost issues, and the impact on the Armed Forces of agreeing to the request. Since the Armed Forces are by definition undertaking duties for which other authorities are responsible, they should only be called upon as a last resort and when other possibilities have been exhausted. Requests for support that do not meet these criteria are, by definition, unreasonable.

MOD Ministers also take into account any specific legal factors arising from a particular request, to ensure that the Armed Forces are acting fully within the law. They would not, for instance, authorise the Armed Forces to undertake directly any action that requires police powers, since these powers are not vested in the Armed Forces (and even from a practical perspective, the Armed Forces are not trained to use these powers). Defence Council Orders authorise the Armed Forces to undertake specific tasks in support of the civil authorities, rather than commissioning the Armed Forces with generic powers.

The use of the Royal Prerogative should not, therefore, be taken as implying that the Armed Forces have any powers or authority over and above those of the ordinary citizen. The power to deploy the Armed Forces is vested in the Defence Council, but civil primacy and responsibility is recognised at all times, with the Armed Forces acting under military command but under the supervision of the police or other civil authority. Clearly, therefore, the MOD would not authorise the deployment of the Armed Forces in support of the police without a clear request from the police and (in view of its overall responsibility for police issues) the agreement of the Home Office. Nor would it authorise a MAGD deployment without a clear request from the relevant central government department (including, in the case of the devolved regions, the Scotland, Wales, or Northern Ireland Offices).

The declaration of a state of emergency under the Civil Contingencies Bill will not alter any of the factors outlined above. It will not be necessary to wait for a state of emergency to be declared, and emergency powers introduced, before consideration is given to a request for armed forces support. Nor would a state of emergency automatically lead to the engagement of MOD support. It is, however, reasonable to expect that (in practice) the factors which might lead to the declaration of a state of emergency would also influence the Secretary of State for Defence when judging the 'reasonableness' of a request from the police or a central government Department to provide support.

54.  Would the powers and arrangements under which the Regular Army is deployed apply automatically to the Territorial Army? All the arrangements outlined in answer to questions 52 and 53 apply equally to the deployment of the Territorial Army and other reserve forces.

In addition, it is not MOD policy to employ the Reserves in undertaking duties directly associated with industrial disputes. Although MOD support in these cases is provided solely to ensure that basic levels of essential services are maintained, care is taken not to cause tension within local communities, or to provoke a division of individual loyalties, that might result from Reserve personnel undertaking these activities.

For the most part, Reserves involvement in MACA operations is purely voluntary. Nonetheless, sections 51, 52, 54 and 56 of the Reserve Forces Act 1996 provide the necessary legal powers for rapid mobilisation by MOD Ministers for MACA tasks, should they be required. As part of the introduction of Civil Contingencies Reserve Forces, regulations are being drafted that will allow callout notices to be produced and served very quickly after Ministerial authority has been granted and a Callout Order signed.

Local authority duties
55.  The Cabinet Office states that the Bill "gives[s] a statutory basis to what is largely existing practice, providing a coherent framework across areas, leading to consistent expectations."(Consultation document, p40). How do the duties envisaged in the draft Bill differ from the duties local authorities already undertake in this area? Currently, local responders in Categories 1 and 2 carry out their functions and powers according to their own managerial decisions and on the basis of general guidance, Dealing with Disaster, and specific guidance relating to their particular functions. There is no over-arching framework.

The Bill introduces an over-arching framework which will oblige all the local responder bodies to make some adjustments towards greater consistency. Regulations and guidance will clarify the expected framework; and to what extent changes are required will vary depending on current practice of individual authorities. Key differences are likely to include a greater emphasis on risk management and stronger business continuity management.

56.  Under the Civil Defence Act 1948 local authorities had powers to compulsorily acquire land for civil defence purposes. Under what powers would they exercise these functions if the Civil Contingencies Bill became law? The Civil Defence Act 1948 gave a power to compulsorily acquire land for civil defence purposes to local authorities identified in section 8(1) of the Acquisition of Land (Authorisation Procedure) Act 1946 (now , in England and Wales, replaced by the Acquisition of Land Act 1981.)

The Government has not reproduced this provision. It does not consider that local responders require powers (or, in the case of local authorities, further powers) to compulsorily acquire land in the course of contingency planning.

However, if a declaration of emergency is made under Part 2 of the Bill, under clause 21(3)(a) emergency regulations can confer a function on a specified person, which could be someone at local authority level, and under clause 21(3)(b) regulations could be made to enable the requisition or confiscation of property.

57.  Does the responsibility imposed on local authorities for 'preventing' an emergency make them unduly susceptible to litigation in the event of failure to achieve that objective? No. The requirement to plan for the effective prevention/ mitigation of emergencies requires local authorities (and other Category 1 responder bodies) to carry out their normal services in such a way as to limit the possibility that an incident may develop into an emergency. Effectively it makes the local authority no more liable for charges of negligence in performance of its functions than it is at present.
58.  Why were the BBC and the media in general excluded from the Category 2 responders list? The Government does not believe that it is appropriate for media organisations to be included within the list of Category 2 responders. To make their participation a legal requirement might impact on their independence as news reporting and investigating bodies in the context of emergencies.

In practice, media organisations have shown themselves to be valuable partners in local multi-agency planning arrangements on a voluntary basis. Media organisations play a key part in local media plans for informing the public during and after an emergency. This is expected to continue.

59.  The Defence Committee's report, Defence and Security in the UK, noted that there is little conformity about giving security clearance to emergency planners at local level. As a result, many of those attending the same cross-agency meetings have different levels of access to sensitive information. Given the statutory duties being imposed on local responders, is there a policy regarding granting security clearance to the individuals who must perform those duties? Decisions about the vetting of individuals are made on the basis of individual need. Local responders receive security clearance only where that is necessary, and to different levels as appropriate. This Government has no plans at present to change this approach.
Regional and Emergency Coordinators (clause 22)
60.  What kind of training will be provided to putative regional and emergency coordinators? Regional and emergency co-ordinators would vary according to the nature of the emergency, but would be individuals appointed on the basis of considerable experience and a proven track record. As such, they would be able to bring significant capability to bear including specialist subject knowledge, strong leadership and effective emergency management.

Given the responsibility of the post, carefully tailored training would be available to supplement those existing skills. While training packages would depend on the final shape of the Co-ordinator role and the individuals in question, core elements of training to be implemented across the board would be likely to include the doctrine of regional response, central government crisis machinery and media handling.

61.  Will the regional and emergency coordinators be leaders or providers of specialist expertise? Which range of skills is the more important in a regional and emergency coordinator? There are three broad areas of expertise in which regional and emergency co-ordinators might specialise:

-  Subject matter specialisation. Some Regional Nominated Co-ordinators (RNCs) might be appointed on the basis of expertise in particular types of emergency. For example, a senior health professional might be nominated to take on the role in the case of an epidemic in humans.

-  Crisis management. Some RNCs might be appointed on the basis of strong track records in leadership positions during emergencies. An example of this might be a senior police officer.

-  Regional knowledge. Some RNCs might be appointed on the basis of experience in a particular region, and experience of working closely with key players. An example of this would be the Director of a Government Office.

Establishing the right mix of skills would be a task for the planning phase during which the nomination would take place. Training would be tailored to build up nominees' capabilities in the three identified areas to ensure they could function effectively in any of them.

62.  According to the Consultation document, the identity of regional nominated coordinators "would depend on the nature of the incident and which organisations had the lead for dealing with it" (p.24, para 18). Up to how many people in each region would be 'pre-nominated', in order to account for all potential incidents? How often would these 'pre-nominations' be reviewed? The number of individuals nominated for the RNC role in any region would be a matter for determination by that region, forming part of the effective planning stage. In part, decisions would depend on the mix of nominees a region opted for - for example, a smaller number of crisis managers as opposed to a larger number of subject specialists.

Nominations would be reviewed on a regular basis, and in a variety of ways. Regional Resilience Forums would take the lead, drawing on advice from central government. They would consider nominations as and when they reviewed regional plans, and in the event that current nominees became unavailable. In addition, central government departments with national plans making use of RNCs would also review nominations as and when they reviewed their plans.

63.  What status would regional nominated coordinators have in a non-emergency? Would they have a contract or salary? A RNC would not have any formal status or salary unless emergency powers were invoked. Emergency regulations would make provision as to the RNC's terms of appointment and conditions of service (including remuneration) (see clause 22(2)).
64.  It is proposed that a regional nominated coordinator "would not be formally appointed unless special legislative measures were to be taken" (Consultation document, p. 24, para 19). What would these "special legislative measures" be? The function of emergency powers legislation is to make temporary "special legislative measures" in the form of emergency regulations. This therefore simply means that he/she would not be formally appointed unless emergency powers are invoked.
65.  Will regional and emergency coordinators be able to call upon the armed forces or issue orders to the forces? Regional and emergency co-ordinators would be able to request military assistance under existing MACA arrangements (see answers 51-54). They would have no powers to issue orders to any armed forces personnel.
66.  Will regional and emergency coordinators be able to call upon the Civil Contingency Reaction Force or issue orders to this force? The CCRFs are part of the armed forces. Regional and emergency co-ordinators would be able to request military assistance under existing MACA arrangements but they would have no powers to issue orders to any armed forces personnel.
67.  Will regional and emergency coordinators be able to invoke Access Overload Control (ACCOLC)? ACCOLC invoke is currently by the request of the Cabinet Office or the Police Incident Commander. The Government is currently reviewing these arrangements.

If it becomes apparent that RNCs should be able to invoke ACCOLC then the Government will consider making that possible.

68.  To whom will regional and emergency coordinators report and who will they take orders from once an emergency is proclaimed? Regional and emergency co-ordinators would be appointed by the Secretary of State to whom they would be accountable. They will take direction and guidance from the Secretary of State. (See 22(4) of the draft Bill.)
69.  Once emergency powers have been invoked, what scope will regional and emergency coordinators have for independent action? If communication with the centre were not possible, would they act on their own initiative? Could they call for military support? The level of discretion regional and emergency co-ordinators will have will depend on the nature of the emergency. The powers and duties given to the RNCs will be set out in the emergency regulations, and would be adjusted to suit the circumstances. The regulations would also set out the extent to which RNCs would use powers at their own discretion, and the extent to which they might require authority from the Secretary of State.

They would be able to act independently if communication with the centre was made impossible, though only within the parameters established by the regulations. They will be able to request military aid if appropriate through established MACA arrangements.

70.  Once a state of emergency has been proclaimed, will elected local representatives, such as councillors or mayors, have any role or responsibilities in dealing with the emergency? The declaration of an emergency would not, in most cases, alter existing powers and duties. Roles and responsibilities of any individual would only change if explicitly provided for in the emergency regulations.

It is likely that local elected representatives would continue to fulfil their usual role, albeit in the context of the emergency in question (for example, they might find themselves heavily involved in the local response for their area). In addition, functions could be conferred on local bodies under the emergency regulations.

71.  Where an emergency has arisen, or is threatened, does the Government envisage that regional and emergency coordinators will be able to issue directions to the police, the fire services, health authorities, the Coastguard, Coroners, local authorities, Maritime and Coastguard Agency, the Environment Agency and government employees? The Government believes that, wherever possible, usual lines of command and control should not be altered in times of emergency. The purpose of this is to avoid confusion and disruption of established procedures and relationships. This principle is widely supported across the civil protection community.

Nevertheless, in the most serious emergencies, in might be necessary for the Government to be more directive. This is particularly true in situations where local areas do not have a full appreciation of the national picture.

That is why the draft Bill enables, where appropriate, regional and emergency co-ordinators to be empowered to give strategic direction to local agencies in terms of setting priorities and facilitating co-ordination.

72.  What role would Regional Assemblies have in contingency planning and dealing with emergencies? How could the proposed arrangements be changed to allow any future Regional Assemblies to have a role? The Devolved Administrations have a direct involvement in the legislation making process. As a consequence, the Government believes this involvement should continue where possible if the use of special legislative measures is necessary.

There are currently no administrations in England which enjoy comparable levels of legislative competence. This situation will continue to be reviewed as part of the development of the Government's policy on English Regional Assemblies.

73.  Where an emergency arises from, or is threatened by, a maritime emergency will regional and emergency coordinators be able to issue directions to the Secretary of State's Representative (SOSREP)? It could be provided for under emergency regulations if necessary in the circumstances.
74.  How would regional and emergency coordinators be removed? The post will expire when a Royal Proclamation (clause 18) or a Declaration by the Secretary of State (clause 19) lapses.

In addition, if required the Secretary of State could remove and replace regional and emergency co-ordinators.

75.  Can the Cabinet Office provide the example of a case where an emergency was managed using the three levels of management (local, regional and national) proposed in the consultation paper? The involvement of both the local and central levels in the response to emergencies is a long-standing arrangement. The involvement of the regional tier is a more recent development.

Nevertheless, this regional role has steadily increased in significance. Regional structures were put in place during the foot and mouth outbreak in 2001, the Fuel Crisis in 2000 and the firefighters strike of 2002. Regional offices also played a role in the co-ordination of Y2K contingency planning.

These situations highlighted two key issues:

-  With increasingly complex social and economic networks, it was difficult to handle the volume of information coming directly to the centre from so many local areas and flowing back out again. This was leading to ad hoc regional arrangements.

-  Regional arrangements put in place in an ad hoc fashion did not always perform as well as established structures.

It is these key issues that have led to the Government's decision to establish a regional civil protection tier.

Miscellaneous
76.  Why does the Cabinet Office consider that a single central co-ordinating body within central Government dealing with all emergencies is not appropriate? Different emergencies require different types of response and the Government believes that this is best delivered through the lead government department principle, with strong central co-ordination where required, which allows the experts in any particular field to lead the response.

Each of the central government departments must take responsibility for its own sectoral area and not be tempted to try to dislodge its responsibilities onto a central body. Revisions to the lead government department doctrine have put in place a robust system which will be audited annually by the centre to ensure conformance and good practice.

Clear leads at Ministerial and Departmental levels have been established and central resources provided to plan and co-ordinate contingency planning.

Sir David Omand was appointed as Security and Intelligence Co-ordinator and Permanent Secretary to the Cabinet Office in July 2002 to enhance capacity at the centre to co-ordinate security, intelligence and contingency management.

The Civil Contingencies Secretariat was set up in June 2001 to improve the UK's resilience to disruptive challenge through working with others inside and outside Government on anticipation, preparation, prevention and resolution.

The Government believes this arrangement of central co-ordination, accountable to Ministers, coupled with Departmental responsibility for delivery of response is the best resilience structure. It engages a wider pool of expertise, avoids the need for a huge new bureaucracy at the centre while at the same time has a clear chain of command.

77.  How will the "standards and audit regime" (chapter 5.2 of the Consultation Document) operate? Will it monitor central as well as local government? The standards and audit regime referred to in Chapter 5 of the Consultation Document relates only to central government. Further details are set out in answer 31.

Monitoring of the performance of local responders against the duties in the draft Bill will be carried out by existing audit bodies such as the Audit Commission as part of their established performance management processes. Further detail is set out in paragraphs 37 and 38 of the Consultation Document.

78.  Is there currently in place, or does the Government plan to propose, legislation similar to the Civil Contingencies Bill for the Isle of Man or the Channel Islands? Are the Isle of Man or the Channel Islands included within the new arrangements? Have, for example, Resilience Forums been set up? Civil protection arrangements in the Channel Islands and Isle of Man are a matter for their respective administrations. The Government is currently consulting both on the possible extension of the draft Bill to include their territories.

79.  Why is the Maritime and Coastguard Agency defined at paragraph 8 of schedule 1 of the Bill as "the Secretary of State, in so far as his functions relate to maritime and coastal matters", whereas the Environment Agency itself is specified at paragraph 7 of Schedule 1? The Maritime and Coastguard Agency is an Executive Agency of the DFT. It is part of the DFT and does not have legal personality in its own right.

The Environment Agency is an non-departmental public body (NDPB) sponsored by DEFRA. The Environment Agency was established under the Environment Act 1995 as a body corporate.

80.  What arrangements would be made to preserve a record of oral directions given by Ministers under the powers at clauses 7(3) and 21(3)? An oral direction is valid with no requirement to maintain a written record. Nevertheless, the Government is currently considering how the draft Bill might be amended to include the requirement to record directions in writing.
81.  Does the Emergency Communications network include all category 1 and 2 responders? If not, why not? The Emergency Communications Network (ECN) is a private switched telephone network, discrete from the public network. It provides a robust emergency communication system via dedicated private automatic branch exchange (PABX) switches. The ECN is managed by the Cabinet Office. The ECN is continuously available and can have a role in support of the Public Service Telephone Network (PSTN) through all stages of traffic overload management. The ECN enables direct access to the PSTN and Break-In from the PSTN; these features can facilitate communication with mobile telephones at the scene of an incident.

The ECN is available to any 'essential service' which has an involvement with planning for, managing and/or responding to an emergency situation. All the Category 1 and 2 responders are eligible to connect to the ECN, and under current arrangements the Government funds the connection of local authority sites, Police and Fire HQs.

A number of other Category 1 and 2 responders are not connected to the ECN. They have chosen to use alternative methods of communication based on their own operational needs.

82.  Does the Emergency Communications Network include key voluntary organisations such as the Red Cross, St John's Ambulance? If not, why not? The ECN is available for connection to voluntary organisations. None are currently connected to it, choosing instead alternative methods of communication based on their own operational needs.
83.  Do Lords-Lieutenant have any role in dealing with, or during, emergencies? Lords-Lieutenants have no formal role in the response to emergencies.
84.  Have Lords-Lieutenants or sheriffs any residual powers to mobilise a militia (or posse comitatus) which could be used in an emergency? No. Under section 6 of the Regulation of the Forces Act 1871, all jurisdiction, powers, duties, command and privileges of Lord Lieutenants in relation to the militia reverted to the Queen, save in relation to appointing a deputy lieutenant and raising the militia by ballot.

The abolition of the militia in its entirety came about under section 4 of the Territorial Army and Militia Act 1921.

85.  What role will utility and other regulators have in planning to meet civil contingencies? The Government believes that the utility and other regulators have an important role to play in planning to meet civil contingencies. Utility companies are often responsible for supplying essential services and may have a key role in the response to emergencies. The regulatory framework within which they operate is crucial to that response. The regulatory framework is also the principle vehicle through which the Government ensures that utilities discharge their responsibilities to plan for emergencies.

Discussions will take place with regulators before regulations and guidance are produced affecting Category 2 responders in order to clarify the respective regulatory regimes of each type and how their existing regimes fit with what is proposed under the draft Bill.

86.  When will the Treasury task force under the chairmanship of Sir Andrew Large report on contingency arrangements for financial markets? The Task Force on Financial Sector Operational Disruption has been asked to produce an interim report by November 2003 and make final recommendations by February 2004.
87.  The Cabinet Office commissioned a comparison of other civil contingencies legislation (Consultation document, p41). Are there any countries that the Bill team think have got it right? The draft Bill's policy development process drew on lessons from overseas. Several jurisdictions were the subject of a formal analysis by the British Institute for International and Comparative Law - France, Sweden, USA and the EU. Officials also established bilateral contacts with Canada, Australia, and New Zealand. Further research covered the legislative frameworks for civil protection in several other countries.

Of the systems considered, each had both strengths and weaknesses. These often mirrored strengths and weaknesses in the systems of government more generally. No one country could be said to have got everything right.

The exercise has highlighted that good arrangements found in one country are not necessarily easily transferable to another. Much depends on the nature of the systems of governance the countries employ, their size and the nature of the risks and threats they face.




397   HC Deb 15 November 1973 cc 680-3 Back


 
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