Memorandum from the National Council for
Civil Protection (NCCP)
Q1. Is the definition of emergency right?
No. It is a long, cumbersome blend of the general
and the specific, which runs the risk of leaving unintended loopholes
only to be discovered in a future court case. We believe the simple,
single paragraph definition from the Government's guidance pamphlet
"Dealing with Disaster" is perfectly adequate. We can
think of no situation, listed in the Bill's definition, which
it could not readily be deemed to cover
An example of a potential loophole is the specific
reference to fuel oils in 1(3)(a)(ii) which raises the question
of the status of other oils, such as lubricating oils and edible
Also, although it is probably implicit that
the Bill applies to the UK's territorial waters, there is no specific
reference to seawater.
Finally, whilst not strictly part of the question,
it is arguable that the single sentence preamble to the Bill would
benefit from expansion.
Q2. Are the Category 1 and 2 duties correct
for the local level?
Yes, to a certain extent. The vast majority
are simply a regularisation of existing best practice, but some
new duties are included.
Business Continuity planning is a not unreasonable
addition. Not only is it essential if an organisation is to have
confidence that it will be able to continue to deliver its own
services, but the disciplines involved have clear links with the
wider role of planning for external emergencies, so it is appropriate
that the functions are carried out in concert. It is important,
however, that, either in the Bill or the Regulations, "promotion
of business continuity" is defined in terms of extent and
degree of effort.
On the other hand, risk assessment and risk
prevention are not part of the emergency planning role. Obviously,
emergency planners must take note of the potential hazards which
may give rise to an emergency, but their whole raison-d'etre is
to have plans in place to deal with emergencies which occur despite
the best efforts at risk assessment and risk prevention of a whole
range of other regulatory and enforcement bodies.
There are plenty of examples of these in local
authorities: environmental health; building control; trading standards;
social services; highway authorities. There are many more outside.
The emergency services have an existing risk assessment and prevention
role. The Environment Agency assesses the risk of flooding and
does its best, within budgetary constraints, to protect against
it. The HSE has this role in relation to much of industry, the
MCA in relation to shipping, the CAA in relation to air travel,
the Department of Health in relation to infectious disease.
It simply is not appropriate for emergency planners,
with no technical expertise, to attempt to second guess these
bodies. They should sit outside, remaining slightly sceptical,
and point to the evidence of the "unsinkable" Titanic,
which conformed to the entire risk assessment and preventative
regulatory framework of the day!
If, in fact, what is actually meat is "hazard
identification" rather than risk assessment, then it is reasonable
for it to be left in, but in any case the term must be properly
If risk assessment is not removed, then it must
also be made clear that organisations are only responsible for
assessing risks which fall within their degree of competence,
so that they are not exposed to inappropriate claims of liability.
NCCP remains clear that the duty to "prevent"
should be removed.
Regarding the duty to warn and inform the public,
the NCCP wishes to emphasise that this very important issue is
one on which Central Government should establish the policy and
take the lead. A national programme to educate the public in these
matters is long overdue.
One aspect which is not considered in the Bill,
but might, perhaps, be included in the Regulations, is a formalisation
of which agency is responsible for co-ordination of the joint
response. NCCP recognises that this will not be easy to set down,
since minor variations in the scenario of the emergency concerned,
or the stage it has reached, may affect views as to the most appropriate
The final point one might query under this question,
is whether the Category 2 role is correct at all. The lack of
clarity over exactly what it will involve, and whether it will
be onerous enough, is certainly a matter of concern to the House
of Commons Defence Committee, which has already reported on the
Draft Bill (HC 557)
Practical experience shows that a number of
organisations currently involved in contributing to multi-agency
plans eg utilities, operators of major shopping, leisure or sporting
complexes, facilities, and operators of major components of the
national transport infrastructure, do vastly more in terms of
emergency planning than might be considered to be required under
It would be unfortunate if organisations, which
hitherto co-operated fully, were able to point to the legislation
as a licence to reduce their input.
NCCP believes there should just be one category.
Q3. Is membership of Category 1 and 2 right?
No, there are a number of notable omissions.
The most significant is the failure to impose
these duties on any central government Departments and also the
vast majority of central government Agencies, eg Food Standards
Agency, Highways Agency, Benefits Agency.
This is despite the fact that, by and large,
the "local" response is pretty well sorted. Where things
fall down is when the scale or impact of the emergency requires
the involvement of central government resource, prime recent example
being the fuel crisis and the Foot and Mouth outbreak.
This failure is a direct result of the fact
that central government emergency planning, training and exercising
(if it takes place at all!) is not integrated with that of local
The Civil Contingencies Secretariat's stance
on this omission is that: "It is unusual to impose duties
on central government departments, because Ministers can agree
to do things, and an auditing regime will be established to see
that required standards are met".
Interestingly, the House of Commons Defence
Committee is clear that formal duties should be imposed on Central
The consultation document asks specifically
for comments on which elements of the health service should have
a duty. We suggest: Strategic Health Authorities, Acute Hospital
Trusts, Primary Care Trusts and the Health Protection Agency.
(Ambulance Trusts are, of course, already included as emergency
Moving to Category 2, there are a number of
striking general omissions. Broadcasters, bus and coach companies
(a vital component of most evacuation plans) the entire food distribution
and sales industry, the petrol and diesel distribution industry,
are not included. The rail freight company EWS Railways is absent.
Some airports, including Manston, are not on the list. The national
chemical and radiological hazard identification and response schemes
NAIR, Radsafe and Chemsafe are missing.
In addition, in any specific locality, there
are likely also to be particular organisations whose co-operation
may be vital to comprehensive planning, such as the operators
of major shopping, leisure and sporting complexes already referred
to in the answer to question 2 above.
Equally, the co-operation of the organisers
of major public events is vital. The Open Golf, the London Marathon,
the Commonwealth Games and, of course, the Olympics, spring to
It would probably be far better to copy the
existing Community Safety legislation, which enables a local authority
to require the co-operation of any organisation which it considers
has a role to play.
Q4. Is the balance of regulation powers right?
Q5. Should consistent multi-agency arrangements
be established through Local Resilience Forums?
Yes, and these exist virtually everywhere already.
But the rules regarding membership, chairmanship, frequency of
meetings should, as now, remain flexible. This flexibility should
include the freedom to retain the existing names of the groups.
It must also be recognised that the real work of multi-agency
planning does not happen at these forums but through day-to-day
partnership working by many staff who never actually sit on the
Q6. Does the partial Regulatory Impact Assessment
accurately reflect costs and benefits?
No. It certainly does not reflect the benefits,
or consider the full financial implications.
For example, with regard to the industrial concerns
designated as Category 2 responders it makes the sweeping assumption
that all of them, regardless of their size and the complexity
of their operations, will employ the same resource at the same
cost. Practical knowledge and experience of NCCP's members who
work in industry or with industry, demonstrates how incorrect
this assumption is.
The costs for other bits of industry affected
by the Bill are not considered either.
The impression given is that the drafters of
the Bill are desperate to prove that emergency planning can be
delivered at minimal cost.
Q7. Should Civil Defence Grant be transferred
NCCP's members do not have a uniform view on
this specific question. They are clear, however, that however
local authorities are funded, there must be sufficient emphasis
on the importance of the function to ensure that the funds are
directed to it, within the Corporate Performance Assessment (CPA).
Q8. Is the level of funding sufficient?
No. It has for years been claimed that the
Civil Defence Grant is insufficient, and this is demonstrated
by the fact that many local authorities supplement it from their
own resources. The LGA calculated this year that expenditure in
England and Wales was £32 million, as against a grant of
only £19 million. The government always argued that this
was appropriate, since, strictly speaking, Civil Defence grant
was not expected to cover all aspects of emergency planning.
Therefore, it is now completely illogical
to assert that the same level of funding is capable of supporting
not only all the previous emergency planning tasks but also Business
Continuity and elements of risk assessment and risk prevention.
It is significant that following the Emergency
Planning Review, carried out in 2001 as a precursor to this draft
bill, there was an explicit statement from Central Government
that Business Continuity was a new task which would require additional
funding, but this appears to have been quietly forgotten.
A proper local programme of educating, warning
and informing the public, building on the national policy which
NCCP is calling on central government to deliver, would also require
Planning for oil pollution has never been
claimable under the Civil Defence Grant and has never been mandatory,
so it will be a new cost for many.
Finally, contributing to a Regional Tier
is another innovation.
Overall, therefore NCCP seeks a substantial
increase in funding, together with a severe audit regime to ensure
that expenditure is appropriate.
Q9. Should performance be audited through
Yes. The over-riding requirement is that the
auditors should be competent and the audit rigorous.
The emergency services already have an effective
inspection mechanism and it would not make sense for this specific
aspect of their work to be audited by another body. As far as
local authorities are concerned, neither the Civil Contingencies
Secretariat nor its predecessor, the Emergency Planning Division
of the Home Office ever demonstrated any ability to inspect or
audit, so it would be sensible to pass the task to the Audit Commission,
which checks other services successfully. The Audit Commission
will, however, need to devote time and resource to developing
the necessary understanding of the function.
It would also be useful to emphasise the importance
of the function to local authorities by including it within the
Corporate Performance Assessment (CPA).
One issue which must be considered, however,
is the potential conflict of interest between the Audit Commission,
auditing Local Authorities in general, and the HSE, which is responsible
for auditing the COMAH, REPPIR and Hazardous Pipelines plans prepared
by local authorities.
It must also be remembered that a possible downside
of continuing with the existing range of audit mechanisms is that
the very important aspect of the integration of individual agency's
efforts into a single co-ordinated response may not be judged.
Q10. Do you agree with the role of the Regional
No. If the emergency is affecting the region
so severely that Minister's have decided it is necessary to apply
Emergency Powers, then it should be a democratically elected Minister
who chairs the strategic decision making group and is subsequently
accountable for the actions taken, rather than an appointed official
such as a Chief Constable.
This is in line with existing "Lead Government
Department" arrangements for central government's involvement
in emergencies, which are proposed to continue. If Emergency Powers
are declared, then it follows that central government is involved,
so the appropriate government department must be leading, and
at the head of each government department is a Minister.
In any case, the whole concept of a regional
tier is flawed, primarily because the Government Offices of the
Regions do not, in fact, have direct day-to-day control of central
government resources to bring to the response. This point is enlarged
upon in the answer to question 11.
Q11. Should special legislative measures
be able to be applied on a regional basis?
A qualified no. They should be able to be applied
to the area affected, which may be a part of one Region or parts
of several. For example, an outbreak of Smallpox in a single town,
may require very special measures restricting movement of people
in that particular town and it's immediate surrounding area, but
not across the whole region in which it is situated. On the other
hand, very severe flooding in the Thames Estuary, coupled with
a failure of the Thames Barrier, would affect Kent, Essex and
London ie three Regions.
As stated in the answer to question 10 above,
the concept of the regional tier is flawed. NCCP can only think
of two examples of existing plans and arrangements where, unusually,
there is already significant integration of central government
and local resources, and central government participates in joint
training and exercising. The first of these is for a significant
release of radiation from a nuclear power station. The second
is for a major terrorist/hostage situation, which the military
assist in resolving. In both cases, central government involvement
is directed from the Cabinet Office Briefing Room (COBR) in Whitehall.
There is no "regional" role at all.
In that case, it beggars belief to suppose that,
should the severity of one of these events, or any other, reach
the extent that Emergency Powers are required, then those powers
would be directed from anywhere else but Whitehall.
QQ12.-16. Emergency Powers
Yeswith, in relation to 14, the proviso
outlined in the answer to 11 above.
Q17. Emergency Powers and Human Rights
If the emergency regulations are not treated
as primary legislation for the purpose of the Human Rights Act
then they can be subject to legal challenge, which might delay
their implementation. Two of the likeliest sanctions which might
be imposed in emergencies, would be to restrict peoples rights
to obtain more than a reasonable share of a scarce, vital resource,
ie rationing, or to restrict infected peoples rights to free movement
amongst other of the population. In either case, time would be
of the essence. The delays caused by a legal challenge, in due
course dismissed as being without merit, might have very regrettable
QQ18.-22. Scotland, Wales and Northern Ireland
It is entirely appropriate that Scotland, Wales
and Northern Ireland should be treated by the Bill in a manner
commensurate with the degree of autonomy those countries possess.
It must be recognised, however, that emergencies
do not respect national boundaries, so it is vital that nothing
is agreed which will affect the ability of authorities and agencies
either side of a border to work together in responding to an emergency
which crosses it.
Q23. Should London's arrangements for co-operation
NCCP does not actually accept that the proposals
for London are different. For every Government Region there is
to be Regional Resilience Forum, which co-ordinates across the
Region, whilst constituent local authorities handle local planning.
The key difference for London, is that these
things are already in place and have, apparently, been working
successfully. In particular, this is another of those very rare
instances of actual integration of elements of Central Government
and local arrangements.
In this respect, London should not be seen as
different, but should be the model.