Joint Committee on Draft Civil Contingencies Bill Written Evidence


Memorandum from Brent Council

  I have pleasure in enclosing comments from Brent Council on the draft Bill in line with the format and timetable set out in the consultation process.

  We have welcomed the opportunity to comment and have sought views and comments from specialist officers within the authority including Legal, Finance and Emergency Planning. We have also sought views from Elected Members and from "Partner" organisations. Finally, we have reviewed our comments alongside those of other professional body responders.

  I am sure you will take the time to evaluate our comments; however, in summary we feel strongly that the need for modern and robust legislation is long overdue, nevertheless the proposals whilst well intentioned appear confused, not properly explained, and in general somewhat draconian.

  Simplistically, they are too detailed for enabling legislation but stop short of real clarity, particularly as we have no indication as to the likely requirements of the detail or direction of regulations, etc that will follow.

  That said, we will watch with interest the outcome of the consultation process, and will support the principles of improved standards and improved protection to our citizens.

26 August 2003

RESILIENCE, EMERGENCIES AND CIVIL PROTECTION

Q1.   Is the definition of emergency the right one? If not, in what ways should it be tightened or expanded to exclude certain classes of event or situation?

  1.  The issue of definition of all aspects contained within the draft Bill require careful consideration: in legal terms these would be held to be binding, thus leaving potential loopholes at a later date. An adequate definition exists in the latest edition of "Dealing with Disaster" which it is assumed has been tested before general publication. The proposed definition appears to be unduly wide and could catch a power failure of fairly minor proportions.

  2.  In 1 (1) a-d "in/of a place" needs to be clearly defined, particularly in relation to United Kingdom waters. Clarification should be sought that, in law, "water" includes seawater. If it does not, then an appropriate definition needs to be included.

CLEAR ROLES AND RESPONSIBILITIES AT THE LOCAL LEVEL

Q2.   Do you agree that the obligations imposed on both Category 1 and 2 responders by or under the new framework will ensure operationally effective and financially efficient planning and response to emergencies at the local level? If not, how should these obligations be increased or reduced?

  There can be no doubt that duties imposed on both Cat 1 and Cat 2 responders by or under the new framework have the potential to improve operational effectiveness if they complement, build on and improve existing multi-agency arrangements and plans at a local level. To a large degree the proposals are a "capture" of current and best practice. However, further definition of Category 1 responders, particularly in two tier areas would clarify the functions of each tier with respect to their involvement.

  Chapter three is entitled:—Chapter 3—Clear Roles and Responsibilities at the Local Level. There is however some confusion which suggests that roles and responsibilities are not clear. The confusion concerns the inclusion of both Country Councils and Shire District Councils as Category responders. Whilst this does not affect London directly there could be difficulties associated with interface between authorities outside but adjacent to London. There also needs to be clarification as to the (albeit limited) local authority role of LFEPA. Their role should be limited to support to the Fire Service and removed from "Pan London" issues including CIMAH/COMAH/Pipelines/Radiation, etc.

  Robust and fair performance management of civil protection is essential, although this should build on National Standards of preparedness and performance and must have a consistent and recognized framework of operation. However, there needs to be more clarity regarding the relationship between all responders, there is no inclusion of the roles and responsibilities of national government in the draft bill. Whilst it is perhaps unusual in English Law for statutory responsibilities to be placed on central government departments, history has shown that the lead government department concept has rarely worked in practice and that civil protection is too important an area of public life for statutory responsibilities not to be imposed on any of the agencies which have key roles in contributing to creating a robust culture of resilience in the United Kingdom.

  It is pleasing that at last that business continuity planning is recognised in the Bill as a valid and necessary part of the civil protection process. However as with the rest of the functions contained within the Bill, this duty should be held on all responders.

  Risk assessment and risk prevention are categories best left to professional organisations that are competent and instructed in their approach. Examples include the HSE and the Environment Agency. Generic emergency planners are not generally qualified for this role.

Q3.   Do you agree that the membership of categories 1 and 2 is right? If not, which organisations should be added, moved or removed?

  NHS primary care trusts and hospitals should also be included under Category 1 responders, and "police forces" should also include the British Transport Police, the UKAEA Constabulary, and Ministry of Defence Police. The most glaring omission is that of central government who should be integrated with the local response and planning organisation but not necessarily superior to it.

  With regard to category 2 responders there is no reference to organisations which have an emergency response in the following national schemes; National Arrangements for Incidents Involving Radioactivity (NAIR), RADSAFE—these are emergency responders and should be involved within the local planning process and have a statuary requirement for membership of local resilience forums, and be added to the list of category 2 responders. Furthermore, there is no reference to bus and coach companies, infrastructure reliant industries (food/fuel distribution for example) and broadcasters.

Q4.   Do you agree that the Bill gives the Government the right balance of regulation making powers to meet its aims of consistency and flexibility? If not, please explain how the powers should be expanded or constrained.

  The balance at first sight appears to be sufficient. However, given the pivotal role of Regulations in the Bill, it is important that proper consultation that allows for full consideration of the draft Regulations before their implementation is factored in. Although not specifically referred to in the consultation, the same point is made regarding Orders (Clause 5) and Guidance (Clause 3). Time for full consultation is vital.

Q5.   Do you agree that consistent arrangements for multi-agency working should be established through the creation of Local Resilience Forums? If not, how else should consistency be established?

  The use of the term "Local Resilience Forums" may well cause confusion especially where local arrangements have already been in place for some years. If there is to be a change in order to bring uniformity across the country then it will need to be clearly stated in either the Act or, more probably, the Regulations made under that Act. Where joint working arrangements exist they should be encouraged to continue. Funding should be made available to introduce trials across the country in order to establish a common approach or to be comfortable with local variations, particularly as it is generally at staff levels below potential forum membership where the bulk of the planning and integration process happens.

Q6.   Do you agree that the partial Regulatory Impact Assessment accurately reflects the costs and benefits of the Bill proposals? If not, how should it be changed?

  The Regulatory Impact Assessment (RIA) does not accurately reflect the cost/benefit arising from the Bill proposals. Rather than the proposed RIA direction, resource requirements should be assessed following a thoroughly investigated funding review which takes account of the fact that whatever definition of emergency and other terms is used, it will take civil protection far beyond current expectations. It appears at first sight that the drafting team are trying to establish/prove that emergency planning can always be delivered at a uniform and minimal cost.

Q7.   Do you agree that funding for Category 1 local authorities should be transferred from specific grant (Civil Defence Grant) to Revenue Support Grant? If not, why should specific grant be retained?

  A much greater level of funding must be allocated to emergency planning than that which is currently the case. The prospect of legislation placing significant civil protection duties on local authorities, combined with the proposals for "robust" performance management will require local authorities to ensure that the funding provided via revenue support grant is directed to the emergency planning service.

  In Scotland, specific CD grant has been replaced by civil protection grant aided expenditure. In a recent survey of Scottish Emergency Planning Officers the majority agreed that there has been no significant effect on funding levels as a result of the change. However, it was noted that Emergency Planning Officers were now subject to routine budget bidding and cost saving exercises and that the introduction of specific civil protection duties should assist EP Officers in ensuring that funding bids could be quantified and justified. The Government would be remiss if robust transitional arrangements were not made during the change process.

  It is important to distinguish between the costs associated with the planning and preparation for disasters/emergencies, etc. and that needed by the community to deal with the problem on the day. Furthermore, the recovery issues and the underwriting needed to cover complex and lengthy legal processes which unfortunately feature heavily post any disaster will require serious funding. If costs for the former are met by an addition to FSS, then it will be difficult to identify any specific sum to pay for the obligations. Indeed many authorities (eg those caught by floors of ceilings) will not get any money at all because of the vagaries of the RSG system. If funding is to come by way of specific grant, then the critical issues will be the basis of distribution, the total to be distributed and, of course, the additional as yet undefined burden.

  Costs for the latter will require vastly more sophistication than the current "Bellwin" scheme, local variation and of course considerable funding and/or reserves. Irrespective of the above points, it must be made clear to all involved in the process, from the outset, of the vital importance of the function and the need to protect it from inter-departmental squabbling.

Q8.   Do you agree that the level of funding to support the Bill is sufficient? If not, please explain why you believe it to be too high or too low.

  The current level of funding (£19 million Civil Defence Grant) is woefully insufficient to support even the current level of local authority civil protection activities; furthermore the distribution formula is confused at best. There appears to be no acknowledgement of new and additional burdens to be imposed by the Civil Contingencies Bill. Furthermore, the draft Bill raises the overall aspirations for improved resilience (and raises public expectations) without recognising the costs that this will involve. Accordingly, a very large increase in funding is necessary to support the basic responsibilities for local authorities that flow from the forthcoming Bill.

  The government has long insisted that the Civil Defence Grant is only a contribution to local emergency planning, and that local authorities are expected to supplement the grant in order to fulfil their emergency planning duties. Consequently local authorities have had to use money that would otherwise have been spent on other local services in order to ensure emergency planning is adequately resourced. Thus, the actual cost of current arrangements greatly exceeds the current level of central government funding. The new and additional burdens flowing from the forthcoming Bill, which require additional funding, arises from: Promoting Business Continuity Management; Greater emphasis on risk assessment work; preventing emergencies from occurring; Warning and informing the public; Participation in initiatives arising from the new Regional tier of resilience.

  In addition, it is relevant to note that public expectation of how they will be looked after during an emergency is rising all the time. It is reasonable, for example, to assume that people evacuated from the homes in an emergency will be content with the basic provision of shelter and sustenance provided for in most Rest Centre Plans? Is it not more reasonable to expect the public to demand more substantial and comfortable accommodation, which is beyond the capability of local authorities to plan for with current resources and in the absence of regional stockpiles of resources? Funding of other category 1 responders should also be significantly higher than at present, particularly as in order to comply with the new Bill, all responder organisations will have to employ new or additional staff. It is also obvious that the introduction of standards and monitoring process will generate a much greater level of planning and training activities than is currently the case.

Q9.   Do you agree that performance should be audited through existing mechanisms? If not, what mechanism would you like to see established?

  Yes, where auditing mechanisms already exist. In the Consultation Document, chapter three, paragraph 37 deals with "Performance Management". It is suggested that performance could be monitored by existing bodies such as the Audit Commission, the emergency services' inspectorates and utility regulators. In terms of local authorities it is expected the Audit Commission will audit the service under the Comprehensive Performance Assessment process. However, if auditing takes place under the existing Comprehensive Performance Assessment the weighting for, what would be modest expenditure by local authority standards, would mean that there would be only a little incentive to improve emergency planning performance. It will be essential that the weighting attached to civil protection should also take into account the absolutely huge costs to local authorities of responding to emergencies, and the potentially huge costs that will occur if local authorities are not adequately prepared.

  There is also concern that existing audit processes may not address the qualitative issues that need to be addressed in emergency planning. There needs to be an audit regime that is able to measure capacity and competence that is not readily quantified. We would therefore expect to see personnel performing audits on behalf of the existing bodies to include appropriately qualified or experienced staff.

A NEW REGIONAL TIER

Q10.   Do you agree with the role of Regional Nominated Co-ordinator? If not, who should take responsibility at the regional level, and with what responsibilities?

  No, were an emergency to be of such a nature as to affect a region or greater then it should be a democratically elected minister who chairs the strategic decision making process, not an appointed official. This is in line with the existing "Lead Government Department" principle outlined in Dealing with Disaster.

Q11.   Do you agree with the principle of applying special legislative measures on a Regional basis? Please explain your answer.

  Clearly, there is a need to be able to apply "special legislative measures" in certain circumstances. The reasons for repealing the Emergency Powers Act 1920 etc and replacing and enlarging those powers with something more relevant are understood. However, the general concept of regional tier is terminally flawed because the Government Offices for the Regions do not have day to day control of either local or more importantly, central government resources to bring to the response. It is also difficult to understand how, if an incident was of such a size as to involve a regional response, it would not be controlled totally from Whitehall! Furthermore, the issues may be subject based rather than geographic such as during the fuel crisis.

STRONG CENTRAL STRUCTURES AND TARGETED POWERS

Q12.   Do you agree that the current emergency powers framework is outdated and needs to be replaced? If you do not think it should be replaced, please explain why.

  Yes—see 16

Q13.   Do you agree that the circumstances in which special legislative measures may be taken should be widened from limited threats to public welfare to include threats to the environment, to the political, administrative and economic stability of the United Kingdom and to threats to its security resulting from war or terrorism? If not, how would you like to see the circumstances narrowed or extended?

  Yes—see 16

Q14.   Do you agree that the use of special legislative measures should be possible on a sub-UK basis? If not, please explain.

  Yes—see 16

Q15.   Do you agree that authority to declare that special legislative measures are necessary should remain with The Queen as Head of State, acting on the advice of Ministers? If not, who should it sit with?

  Yes—see 16

Q16.   Do you agree that in the event the process of making a Royal Proclamation would cause a delay which might result in significant damage or harm, a Secretary of State should be able to make the declaration in the place of The Queen as Head of State, acting on the advice of Ministers? If not, is delay acceptable or is there another alternative mechanism?

  No. This would give rise to a major constitutional change and is not necessary for this Bill to work. We have concerns regarding the power for a secretary of state or minister to make an oral direction and can conceive of no situation where an order should not be in writing or in some recordable form—if order has broken down to that extent there is little point in continuing—this is more appropriate to the battlefield than a civil emergency.

Q17.   Do you agree that emergency regulations should be treated as primary legislation for the purposes of the Human Rights Act? If not, please explain why.

  No. Circumstances that require immediate decisions and action are not privy to the benefit of hindsight. Subsequent legal challenges may complicate and hamstring future operations. Any incident that warrants an enquiry, public or otherwise will produce recommendations based upon contextual evaluation which can then be implemented. As primary legislation under the HRA, such enquiry results may be irrelevant in law as the HRA enacts EU legislation. However, this is a prime example of the confused nature of the draft legislation in that with a power to make orders in Council, even though in theory they only run for 30 days, it seems the orders can override legislation and of course there is no debate about them. If then the Government can override legislation, they can suspend the Human Rights Act. That must not happen and the HRA must be protected within the provisions of this proposed legislation.

SCOTLAND, WALES AND NORTHERN IRELAND

  Not relevant

LONDON

Q23.   Do you agree that London should have different arrangements for cooperation, and that the proposals set out are the right way to deliver this? If not, what arrangements should be put in place?

The make up of local government in London demands that the local authority arrangements be different. The London Resilience Forum is an established body and seems to function efficiently. The question of local resilience forums needs more clarification. Each London borough currently meets with its won emergency services and NHS Trusts and plans for local resilience. In order to include the utilities and others in Category 2 use should be made of the existing five Mutual Aid Groups in London otherwise the meeting burden and logistics would be unworkable. It is believed that if the Groups were put on to a legal footing they would provide a practical solution, allowing the co-operation envisaged in the Bill.

  The London Fire and Emergency Planning Authority (LFEPA) emergency planning unit should be taken out of the Local Government Emergency Planning loop and be responsible for Fire Service Emergency Planning issues only. All tasks undertaken by them should be passed to the Boroughs. This is the case in all Local Government except former Metropolitan authorities and adds unnecessary layers to the liaison process. This is further confused by the plan in the Bill to make the existing London Resilience Forum (LRF) the same status as the planned Regional Resilience Forums (RRF), and to create a new LRF from the London Boroughs and LFEPA. The question here must by why?!

  A stronger championing of the role/responsibilities and primacy of Local Authorities in London in relation to civil protection, particularly in the planning, preparation and execution of those responsibilities should be undertaken. This needs to be understood by the emergency services, utilities and others involved in the process, and underpinned by statute/regulation where appropriate.


 
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