Joint Committee on Draft Civil Contingencies Bill Written Evidence


Memorandum from Oxfordshire County Council

  1.  Thank you for the opportunity to respond the consultation document. Firstly I would say that the release of the document was botched through unnecessary secrecy, particularly as much of the content had already been widely reported in the national media in previous weeks. At local level we had some twenty minutes to read the full bill and consultation document before national media were looking for informed comments. Perhaps this will explain why the national response through the media was less than complimentary to the Bill.

  2.  I would suggest that embargoed and Confidential copies should have been sent to Chief Executives for the sight of the relevant local authority officers so that there could have been some attempt to provide an united view to the media. Instead the Bill was already subject to criticism from emergency planning professionals.

  3.  This is just another example of the poor relationship between the present CCS officials and local emergency planning professionals.

  4.  I will now deal with specific concerns within the text of the draft Bill and then deal with the Explanatory Notes and Consultation document with its associated questions:

INTRODUCTORY

5.   Meaning of Emergency

  I believe that this covers too many and too varied aspects of normal life and there is a danger that Governments will use these powers for events below the definition in paragraph 1(1) of a serious threat. This has already been reduced to a mere threat in paragraph 2. In paragraph 3 it appears to allow an emergency to be declared if there is a threat to plant life and this may be seen as a reduction in civil liberties by those who feel that they have a legitimate right to take action against GM crops. This is hardly a threat to the national interest but a form of civil protest best dealt with under the criminal law.

6.   Duty to Assess, Plan and Advise

  In paragraph 2(1)(d) Schedule 1 responders appear to be given a duty to prevent an emergency. During the review of Emergency Planning Consultation many responders felt that it was impossible for local authorities to prevent emergencies, particularly those starting outside their area and this paragraph should be removed. The ability to mitigate is already included in the Bill and this is more achievable.

  7.  Paragraph 2(1)(f) gives the duty to publish all or part of plans. This is contrary to recent Security Service advice against the publication of any plans, which would be of use to a terrorist such as the Pipeline Safety Plans. This needs re-wording to take into account this security advice.

  8.  Paragraph 2(1)(g) will need to be supported by extra central funding which explanatory notes elsewhere make clear will not be available.

  9.  Paragraph 2(3)(e) is a sensible precaution but creates confusion, which is not dispelled by later notes on "for the time being."

  10.  Paragraph 2(3)(h) requires the provision of information, which may be protected under the Data Protection Act. We already have difficulties over the provision of such data on vulnerable persons between the Health Economy and local authorities and this Act is unlikely to override the Data Protection Act. Partners would still be able to refuse to supply information on those vulnerable people protected by the Data Protection Act.

  11.  Paragraph 2(3)(i) does not seem to make any provision of non or poor performance from partners on whom another body relies for data/plans.

CIVIL PROTECTION

General Measures

  12.  I repeat the comments on prevention and data protection.

Monitoring by Government

  13.  The provision of information needs to be two way and Government departments should not shelter behind the over classification of information and material.

Provision of Information

  14.  The Data protection Act may apply to paragraph 10.

PART 2 EMERGENCY POWERS

Royal Proclamation

  15.  It is wholly appropriate that the declaration of an emergency remains entirely with her Majesty. (Paragraph 18).

Declaration by the Secretary of State

  16.  It is entirely inappropriate that such wide-ranging powers remain with the Secretary of State who may be motivated by purely political reasons. (Paragraph 19).

Power to make emergency regulations

  17.  Delete paragraph 20(1)(b) and (2)(b).

Scope of Regulations

  18.  In paragraph 21(3). All reference to "without compensation" should be removed. Such draconian powers will only lead to unnecessary civil unrest and lack of co-operation, which will hamper the local recovery effort. This paragraph seems to have been based on the Government's unfortunate experiences during the Foot and Mouth (FMD) debacle where individuals were seen successfully to defy poor central edicts. Such draconian measures as outlined in this paragraph would be intolerable to the people except in times of all-out war against this country such as that envisaged in the Cold War. Even during that period most professional emergency planners and responders saw that such draconian measures would not work. This comment also applies to sub paragraph (4).

Regional and Emergency Co-ordinators

  19.  These provisions pre-empt any public referendum on more formal regionalisation in England and should not be part of the Bill. They also become an unnecessary tier, as elsewhere in the notes they are not given any operational role. There is a well tried and tested military view that, "you should go to war with your existing peacetime formations." The bolt-on regional tiers appear to add nothing to the delivery of emergency response but are merely a ministerial means of enforcing compliance.

Parliamentary Scrutiny

  20.  This seems to have been added as a sop to parliament and at least the notes admit to the planned demise of the Lord Chancellor's office. However paragraphs 3-5 take the sensible precaution of setting rules for the recall of Parliament in the event of a declaration of an emergency.

Human Rights Act 1998

  21.  I remain unconvinced that the draconian powers within this Bill should not be subject to Human Rights legislation challenge during the imposition of an emergency but I am sure suitably qualified legal staff will make the necessary points.

SCHEDULE 2

Repeals and Revocations

  22.  The Civil Defence (Grant) Act repeal seems to pre-empt the questions on RSG versus Specific grant in the Consultation Paper.

SUMMARY

  23.  In summary the Bill is draconian, centralising, pandering to Government "control freakery", attempting to impose regionalisation by the back door without due democratic process. It does little to improve the operational response particularly as the explanatory notes make various mentions of the cost neutrality of the Bill. The manner of its publication seemed to continue the Cabinet Office's desire for secrecy and an apparent attempt to wrong foot professional emergency planners and responders.


EXPLANATORY NOTES

Part 1:  Local arrangements for civil protection

  24.  Paragraph 8. The Bill causes confusion over the County Councils and the District Council being placed in the same category but with a time frame of "for the time being". This time frame needs to be explained and the confusion over different tiers with different resources being given the same duties.

Clauses 2(1) Duty to assess plan and advise

  25.  Paragraphs 12-13. No indication is given of the area for which a responder is responsible.

  26.  Paragraph 15. Yet again I make the point that a responder cannot in most cases prevent the occurrence of emergencies. The terminology is vague as responders presently work to Major Incident definitions and emergencies could be individual, low level incidents not requiring the response envisaged in this Bill.

  27.  Paragraph 18. This begins to clarify my earlier concerns over the security of information published but the Bill should make clear that we are only required to publish information on the advice of the Security Service or the police. We should not be left open to vicarious charges of failing to publish when we retain information on security grounds. This clause must be re-drafted to give some clarity and prevent the publication of sensitive information.

Clause 2(2)-(3) Duty to assess, plan and advise

  28.  Paragraph 21 gives Ministers the right to prescribe the type of plans to be made or not to be made but there needs to be some local flexibility as the Bill is placing on responders a duty to risk assess threats and it must therefore be left to local responders to write and maintain plans beyond that required by a Minister.

  29.  Paragraph 23 gives the County Councils the duty to carry out the totality of planning under the to be repealed 1948 Civil Defence Act but seems to mix the old Civil Defence duties with the term emergency planning. There must be clarity in terms.

Clause 4: Advice and assistance to business

  30.  Paragraph 30 highlights the confusion on BCM when County Councils and Districts have both been placed in Category one. The business community will be rightly aggrieved if approached by two authorities and billed by both authorities for BCM.

Clause 6: Disclosure of information

  31.  Paragraph 32 highlights the obligations of both categories of responders, which may conflict with both the Data Protection Act and Security Services Advice. The final version of the Bill should reflect this.

Clause 8: Monitoring by Government

  32.  Paragraph 34 lays our requirements for both Categories of responders to provide the Minister with information. In the interests of collaboration and partnership the final version of the Bill must provide for a two-way flow of information to and from local Government and all categories of responder.

Clause 11: Amendment of list of responders

  33.  Paragraph 36 allows for amendment to the list of responders and this should be used to bring clarity to the anomaly of both County and District as category 1 responders. This will cause confusion and duplication of effort. There is further confusion caused by words such as "for the time being" and by the mixing of Civil Defence duties and emergency planning as a role for Counties.

Clauses 18 and 19: Royal Proclamation and Declaration by the Secretary of State

  34.  Paragraph 42 deals with the Monarch's powers and such proclamations should remain entirely with the Monarch in order to prevent political opportunism. In Paragraph 43 the regionalisation issue is raised by the back door and the final Bill should not permit a region by region emergency declaration as such formal regions do not really exist in England. It is important to retain the UK wide declaration of an emergency as this acts as a check and balance on Government power. The UK is too small to need "Regional Governors" powers as in America.

  35.  The US model is only valid if the financial advantages of a regional State of Emergency were to apply. However in the UK the Bellwin Rules are still likely to apply for a claim after an emergency and this bill does not appear to give the advantages of the US emergency financial aid provision.

  36.  It was clear during Operation Keir that Government Officials from the Home Office viewed this Council's claim for support under the Bellwin Scheme as untenable as "the war was not unexpected" and therefore financial aid for Operation Keir was not appropriate. Even under the CCB it is unlikely that a regional State of Emergency would improve the Bellwin Scheme conditions.

Clause 22: Regional and Emergency Co-ordinators

  37.  Paragraph 49 adds another tier without clear resources or a pre-incident role and is likely to cause confusion as did the late involvement of Government Offices of the Regions in the Fuel Crisis.

PARTIAL REGULATORY IMPACT ASSESSMENT ON THE DRAFT CIVIL CONTINGENCIES BILL (LOCAL RESPONDERS)

  38.  Paragraph 8 only alludes to funding but funding is an extremely important part to the success of the Bill. Without ring fencing as in Specific Grant dedicated units are likely to become subject to predatory action. Any funding through RSG will not be transparent. More importantly local authorities are already setting next year's budget and a very early indication of any new or reduced funding mechanism must be made clear long before the normal period of December of the current year. If the funding mechanism is to be altered drastically at least a three-year change over period should be agreed.

BUSINESS SECTORS AFFECTED

  39.  Paragraph 21 does not mention Voluntary Aid Societies (VAS) although reasons are given elsewhere in the supporting papers. If the VAS are to continue to form an important part of any response, they should be included in Category two to ensure the proper flow of information. They should not be subject to a financial charge from compliance with the Bill.

OPTIONS

Option 1: Continuation of current permissive regime

  40.  Paragraph 29 again mentions prevention as one of the civil protection activities and I again make the point that there is very little that most responders can do to prevent an emergency. The promotion of BCM gives liabilities to local authorities in the event of failure of any BCM, which they have promoted.

Options 2: Duty on a limited range of organisations

  41.  Paragraph 31 discusses the meetings of Local Resilience Forums (LRFs) during emergencies. This is impractical as at this stage the operational command structure has been formed and there is no need for administrative talking shops. In fact their meeting at this stage will confuse the Chain of Command supported by all responding partners.

Options 3: Duty on a larger range of partners

  42.  Paragraph 33(ii) suggests bringing a larger range of groups into category two and I would support the inclusion of the VAS in this option.

COSTS FOR BUSINESSES, CHARITIES AND VAS

  43.  Paragraphs 45-52 deal with the costs and timings of compliance and the setting of the timings of meetings. These are too prescriptive and will lead to charges of centralisation, control and "one-fits-all" model.

OTHER COSTS

  44.  Paragraph 64 is vague on the amounts to be transferred into the local government settlement and is at odds with the costs neutral comments elsewhere in the documents. There needs to be clarity in funding and an early indication of the funding settlement. The timing of the Bill and its possible implementation in 2004 does not give local authorities time to adjust to or allow for new funding methods.

MONITORING AND REVIEW

  45.  Paragraph 70 supports the retention of existing monitoring procedures, with which I agree.

CONSULTATION DOCUMENT RESPONSE

  46.  Before dealing with individual questions I have to record that the questions tabled are in the main closed questions. They should have been posed in an open manner to ensure valid and worthwhile responses. The types of questions posed tend to give the impression that this consultation exercise is for the sake of consultation rather than a valid outcome. The short timescale for response over the Parliamentary recess and Council recesses rather support this view.

  47.  Q1. I have already made the point on a number of occasions in my response that the Bill is too prescriptive, centralising and seeking control from the centre. The definition is too wide and may lead to challenges on such aspects as normal homelessness and damage to property resulting from events less than an emergency. The definition of an emergency will have little effect on the local response and is more geared to the response at central government level. It is all about process rather than substance and it will not alter the already effective response at local level.

  48.  Q2. The new framework merely builds on the excellent local and sub-regional practices and without proper funding there will be little improvement in areas which have not already put these practices in place. The whole tone of the Bill is aimed at central control and auditing without similar scrutiny on poor central departmental procedures. The Bill creates confusion within local government over the placing of two tiers of local government in the same category with additional confusion over timescale and the mixing of Civil Defence terms and emergency planning.

  49.  Q3. In two local government areas both tiers should not be in the same category. If they are to remain in the same tier, clear direction must be given to avoid confusion over roles. VAS should be added to category 2.

  50.  Q4. I have already covered the centralising and controlling aspects of this Bill, which will affect the existing local response. The Bill is too inflexible based on a one-fits-all concept. The regional tier responsibilities should be removed, as they appear to have no added operational value but merely act as non-operational sounding board for central government.

  51.  Q5. There is no need for these LRFs nor is there a need for inflexible inconsistency. Again a one-fits-all policy is not suitable for the democratic and operational organisations involved in response to a major incident.

  52.  Q6. I believe that the partial Regulatory Impact Assessment errs on the low side and that all organisations will find that the cost of implementing these inflexible procedures will increase their costs. It appears to be aimed as reducing the need for extra funding or even the proper funding of a service which has had its funding reduced by half since the end of the Cold War.

  53.  Q7. Category 1 local authorities should continue to be funded through specific grant, as the service needs to be protected and ring-fenced. With all the other demands on local authorities civil contingencies funding will be absorbed into other services or functions unless protected. Funding through RSG will not be transparent. It is also critical that funding be increased and that details of funding be made known to all local authorities much earlier in the financial planning cycle. My authority has been planning next year's budget from this spring and would not wish to receive the usual late settlement for emergency planning.

  54.  Q8. This is partially answered in Q7 but we need to see a real increase in funding if this Bill is to be more than mere process, which it appears at present. Not only have local budgets been cut by half since the end of the Cold War but also local authorities have not received any increases for inflation since about 1993.

  55.  Civil Contingencies should be no less well funded than the Fire Service. Although my authority funds the service well, there is unlikely to be any increased funding for the increased duties, particularly as much of the emergency work is now seen as national Civil Defence. It is ironic that during the Cold War the service was well funded to provide staff in both County Councils and Districts when the threat was considerably less than at this time. In addition the CCB will impose duties on Shire Districts which must be funded at least to the level of the old Cold War days when the budget for Oxfordshire was approximately £500,000.

  56.  For this Bill to be successful in terms of outcomes and increased public safety there needs to be an increase in funding and probably not only to local authorities. Without proper funding it will merely become a process and an audit tool for central Government which itself will not be subject to such audit.

  57.  Q9. I remain content with the existing audit mechanisms and would caution against the added expense of a separate Inspectorate, which would produce little added value and would be another source of friction between local and central government.

  58.  Q10. I do not agree with a separate salaried Regional Nominated Co-ordinator. If there is to be a need for such co-ordination the old Civil Defence mechanism of a Regional Controller from within the Government regions will suffice. This dormant appoint should be mirrored in the Chief Executives of the County Councils as a dormant controller post for the Counties. The response should be kept local and neither the public nor the media will pay little attention to some distant civil servant from a non-operational office.

  59.  Q11. I disagree with applying special legislative measures on a regional basis, as this is unnecessary in such a small country. This model would appear to mirror much larger countries such as America where such legislative measures are supported by immediate finance based on the declaration of an emergency.

  60.  Such regional legislative measures are also a danger to democracy, as a national declaration of emergency should involve the Monarch and Parliament and can act as a check on Ministers.

  61.  Q12. I remain unconvinced that the present legislation is outdated. The permissive regime works well for most organisations and most of the desire for consistency could have been achieved by up dating the 1993 Regulations with a work programme. A statutory duty is unlikely to bring with it the necessary level of funding. Responders will therefore be faced with a highly bureaucratic framework without the necessary financial support.

  62.  Q13. The special legislative measures should remain narrow and focused and not be a catchall for the apportioning of blame after an event. Such wide-ranging legislation is always dangerous to democracy. We should not widen the legislation beyond dealing with a limited threat to public welfare. Such a widening may cover legitimate protest on a variety of environmental and other government policies. The Draft Bill is too wide ranging, covering major incidents to the terrorist threat. Legislation covering such a wide spectrum is bad law and will attract poor publicity. Such measures as the destruction of property, plant and animal life; control of movement; prohibition of travel; prohibition of assemblies and hefty fines have no place in emergency planning legislation. These are public order issues and should be included in Public Order or Criminal Justice Acts.

  63.  The draft act remains too draconian and some of its provision will interfere with gaining the confidence of the British public, which is unlikely to support such legislation. It is also not clear that those charged with dealing with a response would support such measures.

  64.  Any final act must separate the terrorist and wartime threat from civil emergency legislation.

  65.  Q14. Use of special legislative powers on a sub-UK basis is dangerous and pre-empts any Regionalisation debate. There need to be the checks and balances of an UK wide declaration.

  66.  Q15. Special legislative measure declaration should only remain with the Monarch, as such a toll should not be placed in the hands of central Government.

  67.  Q16. There is no need to give Ministers such powers as outlined in Q15. There is unlikely to be such a severe incident that delay would not be acceptable. It will take time to mobilise any response from outside the local area and local responders will cope with the immediate emergency. Existing legislation and Royal procedures presumably already take into account any incapacity of the Monarch or lack of immediate access. There would therefore not be any significant delay in seeking a royal Proclamation. This question just confirms the centralising and controlling aspects of this Bill, which are dangerous to democracy.

  68.  Q17. My inclination is that the Human Rights Act should be able to mount a challenge to the emergency regulations at all stages. The Human Rights Act should be able to override any emergency regulations to ensure checks and balances on this very wide-ranging legislation.

  69.  Q18-23. I make no comment on these questions as they are better suited to organisations within Devolved Administrations and London but the legislation should not differ significantly to that agreed for England.

CONCLUSIONS

  70.  This Bill adds little to the present permissive regime however the consultation papers have been valuable and on the whole well constructed. Much of the content is too full of jargon and not easily understood by those not in responding professions.

  71.  The whole intention of the Bill appears to be one of centralisation with control of local responders. It still talks about the need to prevent incidents which in most cases is not possible and it sets severe penalties for what many may see as legitimate democratic protest.

  72.  This Bill is likely to produce bad law, as it will be "sweeper" legislation to catch all the various activities not covered by existing criminal justice legislation. It appears to be a Government reaction to the failure of central departments and Ministries during the Fuel Crisis and the Foot and Mouth outbreaks.

  73.  The proposed ability for legal challenges if partners do not provide information will only sour existing partnership relations. Local Authorities will be unable to fund such challenges especially against privatised industries. The security aspects of classified information as well as Data Protected information and the difficulties of sharing these openly between responders have been resolved in this Bill or the explanatory notes.

  74.  The supposition throughout the explanatory notes that such legislation will be largely cost neutral will not be borne out. Even with the limited preparations made by local authorities in response to the present alleged terrorist threat, extra costs beyond specific grant have been incurred for national Civil Defence, ie temporary mortuary contracts, exercising and Recovery Working Group retainer contracts.

  75.  The every detailed duties placed on responders in this Bill will incur staffing, training and response costs. Much of the present emergency planning work will suffer if this small service is not protected by specific grant or by some kind of ring fencing of funding. The proposed funding through RSG will not be sufficiently transparent: will be subject to predators.

  76.  The likely timing of any late financial settlement after a Bill in the autumn will seriously affect local authorities' budget setting which in the case of my authority is already well advanced.

John Kelly

County Emergency Planning Officer

30 June 2003


 
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