Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence


Memorandum from the Local Government Association

1.   INTRODUCTION

  1.1  The Local Government Association (LGA) is the national voice for local communities, speaking for nearly 500 local authorities in England and Wales representing over 50 million people and spending £65 billion a year on local services. This includes the 178 Principal Councils and Fire and Civil Defence Authorities in receipt of Civil Defence Grant in England and Wales.

  1.2  The Association welcomes the opportunity to give both written and oral evidence to the Committee. This memorandum of evidence develops further the issues in the Association's submission to the Defence Committee dated 25 April 2003, a copy of which is attached at Appendix 1. On this occasion, the Welsh Local Government Association (WLGA) has decided that it will not make a separate submission to the Committee. The memorandum therefore highlights the WLGA's views where arrangements vary between England and Wales.

  1.3  The LGA supports the Government's intention to improve resilience, drive up standards and assist in the development of a proper management structure for emergency planning. However, whilst the content of the draft Bill appears to be in line with many of the aspirations of local government, there are a number of areas of concern, both on the face of the draft Bill and arising out of it; these are outlined below. Without sight of the draft secondary legislation or guidance, the overriding caveat of this evidence is that we must reserve our detailed comments until these documents are seen. It is our hope that there will be full stakeholder consultation in the development of these crucial items.

  1.4  Where applicable, the LGA is working with the Civil Contingencies Secretariat Issues Resolution Team to move forward problematic areas.

2.   REGIONAL RESILIENCE

  2.1  Whilst there are political differences over the merits or otherwise of regional devolution, it is the LGA's general policy to support the provision of services at the local level, to ensure accountability to the local community and to accord with the democratic process.

  2.2  Therefore, the LGA is not opposed to the regional resilience tier proposed in the draft Bill. It considers, however, that there is a lack of clarity about the proposed roles and responsibilities and the involvement of local authorities. The consultation document that accompanies the draft Bill sets out the objectives for the regional tier, which include improving co-ordination, supporting planning, leading a regional response and assisting with recovery. It is hard to see how this can be achieved on a non-statutory basis and could lead to a confusion of roles and responsibilities.

  2.3  There is a balance to be struck between co-ordinating and directing, supporting and intervening, national policy and local felxibility. The draft Bill places duties on local responders but there are no equivalent duties for regional resilience teams and forums.

  2.4  The regional tier must also show that it can add value to the process. It would be interesting to speculate on the contribution the regional tier could have made to the 2001 outbreak of Foot and Mouth Disease, for example. Working well, the regional tier could be the key to a successful emergency response; however, if it worked poorly it could make a serious situation worse.

  2.5  The LGA believes that:

    —  The role of the regional tier should be detailed in statute to ensure improved liaison and consistency between regions, local responders and other agencies. The LGA considers it essential that this should appear on the face of the Bill.

    —  The regional tier should be subject to the same range of performance criteria as local reponders.

    —  As regional structures evolve, the definition of the regional tier should include the Welsh Assembly and any future regional assembly. The role of democratically elected members on the regional bodies, such as the Mayor of London's role on the London Resilience Forum, should be consistent across all regions.

3.  THE GOVERNMENT'S EXPECTATIONS OF LOCAL AUTHORITY RESPONDERS

3.1.   CLAUSE 1

  3.1.1  Notwithstanding the potential for confusion between local responders and the regional tier in relation to their respective roles, there is also possible confusion arising out of the "meaning of emergency" in clause 1.

  3.1.2  It is important that the supporting Regulations clarify where the various Category 1 responders would have responsibilities and how that definition links to current guidance such as "Dealing with Disaster". Thus the LGA believes that there needs to be a "de minimis" definition of an emergency—a trigger level or threshold below which local authorities, as Category 1 responders, would not be expected to respond (such as the declaration of a major incident).

  3.1.3  There is also no indication in clause 1 of what scale of incident would trigger the involvement of the Regional Resilience Committees. Local authorities need a clear definition of that trigger level to allow them to have a measure against which to plan properly.

3.2  Clause 2

  3.2.1  This clause contains a range of duties way above local authorities' current activities that will involve new approaches and new burdens on resources and will form a key area of concern for the LGA's member authorities. For example, the duty to warn and advise the public, whilst a key task in a successful emergency response, is impossible to carry out without specific advice from the regional and central tiers, to ensure correct and consistent information, particularly as the duty holder may vary according to the incident. It is important therefore that the extent of local authorities' "risk assessment" and "risk management" duties is made clear. There should also be duties on the regional and central tiers, to assist local responders where necessary.

  3.2.2  For the avoidance of confusion, the LGA believes that the terminology should be changed, from "risk assessment"/"risk management" to "hazard analysis".

3.3  Clause 4

  3.3.1  Following an incident, a rapid return to normality for the whole community is highly desirable. However, the duty to give advice and assistance to business is worryingly open-ended. The current proposal is for a mandatory requirement for local authorities to give advice and assistance "to the public" (although the stated aim of the duty is that local authorities will promote business continuity management (BCM) to those in the commercial sector and it is believed that the most likely recipients would be commercial business operators rather than members of the general public). Clause 4(3) provides for authorities to be able to make a charge for the provision of such advice only if they receive a specific request for it.

  3.3.2  It is therefore suggested that the mandatory requirement to provide BCM advice should be amended to a discretionary power. Also, the potential for charging needs to be explored carefully and guidance given to local authorities on how to set those charges in order to recover their costs, as a minimum.

  3.3.3  It will be essential for the application of this clause to be clearly detailed in the supporting Regulations.

3.4  Clause 5

  3.4.1  The measures in clause 5 are insufficiently robust to ensure that all local responders play a full part in the new arrangements. Local Resilience Forums should therefore be given statutory powers and duties, which should appear on the face of the Bill, to ensure improved liaison between Districts and Counties and other agencies.

3.5  Clause 8

  3.5.1  Local authorities are no strangers to the concepts of performance management and continuous improvement. Their activities are already monitored and measured in a number of ways and through a variety of bodies. The LGA is currently in discussion with the Audit Commission as to possible performance standards for these new duties.

  3.5.2  The LGA believes that performance against agreed indicators should be carried out by self-assessment and peer review. However, there should be a timely review of the mechanism and the performance indicators after three years.

  3.5.3  We also suggest that there should be some indicators that are consistent across all local responders, such as attendance at Local Resilience Forum meetings and levels of training and exercise.

4.  FUNDING

4.1  Levels of Current and Future Expenditure

  4.1.1  Currently, top tier local authority responders (Counties, Unitaries, Metropolitan Boroughs and London Boroughs) receive ring-fenced funding totalling £19,038 million per annum through the Civil Defence Grant, distributed according to an agreed formula. No local authorities have received any extra funding for the additional work currently expected of them by Government, post September 11. The recent LGA survey of top tier Emergency Planning authorities shows that the total expenditure of these authorities is over £32 million for England and Wales; thus top tier authorities contribute in excess of £13 million over and above the Grant they receive for their current activities. A copy of the report of the survey of top tier authorities is attached at Appendix 2.

  4.1.2  The LGA has conducted a separate survey of Shire District Councils. Initial evaluation of the responses shows that, although they do not receive Civil Defence Grant, virtually all Shire District Councils nevertheless undertake emergency planning functions and currently contribute a total of just under £4 million to fund this work. (The report of the LGA's Shire Districts survey is currently being finalised; a copy will be forwarded to the Committee as soon as it is available.)

  4.1.3  In total, therefore, local authorities at present contribute an extra £17 million over and above the Grant of £19 million. It is clear that the scale of new duties under this draft Bill, epecially when extended to Shire District Councils for the first time, will require a wholesale review of the funding provision.

  4.1.4  The draft Bill will be an important step forward but it is essential that the Government is absolutely clear as to its expectations of partners involved in delivering integrated emergency management and the level of funding and resources to be made available to them to undertake these ever increasing functions. Such funding should be sufficient also to cover start up costs. LGA members would be very concerned to find themselves with new obligations that they would only be able to fulfil by diverting resources from other priority areas.

  4.1.5  It is accepted that the level of risk in London would make it a special case in terms of resources but this should not be to the detriment of other parts of the country.

4.2  The Civil Defence Grant

  4.2.1  The LGA understands the intention is that the Civil Defence Grant will be phased out and Emergency Planning funding will be included in the new Formula Spending Share for local authorities. At present, the allocation of the Civil Defence Grant to authorities guarantees a minimum level of emergency planning service in all areas of the country. If the Grant is transferred to the new Formula Spending Share, resource demand pressures from other services could potentially overwhelm the emergency planning service. However, if the Grant is indeed to be phased out, then the LGA believes, in common with many local authority Chief Executives, that there should be transitional arrangements for Emergency Planning funding to be ring-fenced or identified as a line in the EPCS grant, say for 2-3 years, to allow this funding to be fully established in local authority expenditure plans and thus, we would hope, to enable the service to measure up to public expectation.

  4.2.2  Within Wales, local authorities are funded through the National Assembly, which has direct control of the block grant system, but the Bill makes no provision for the transference of the emergency planning service from the Cabinet Office to the National Assembly. The WLGA considers that evidence of such a transfer is essential to ensure future funding streams for local authorities in Wales. It should be noted that the block grant system in Wales differs significantly from that in England and consideration will need to be given by the Assembly, in conjunction with the ODPM, as to how funding can be distributed and monitored in Wales. Similarly, information upon the calculation to be utilised, to facilitate that transfer, is important. Local authorities within Wales would argue that they should retain as a minimum the existing levels of Government funding.

  4.2.3  It is suggested that perhaps research should be carried out to determine whether the level of grant might be able to be linked to risks in a particular area.

4.3  The Bellwin Scheme

  4.3.1  Under the discretionary Bellwin Scheme, the Government makes financial assistance available to local authorities for costs of response and recovery following an emergency or disaster involving destruction of, or danger to, life and property. The operation of the scheme was reviewed in 2001, following the severe floods of 2000. However, that Review was carried out pre-September 11 2001 and the report of the Review, published the following month, made no reference to that incident. Whilst payments have been made over the years under Bellwin to reimburse authorities for costs expended in the immediate aftermath of smaller scale emergencies such as flooding, we are concerned that the scheme is not particularly appropriate in the current climate. To date the scheme has not paid out for the costs of dealing with a terrorist incident and could probably not be used in the event, say, of a major September 11 type incident (indeed, Bellwin was not considered to be appropriate following the Docklands and Manchester bombs in 1996, when special grant payments were made).

  4.3.2  We are aware that alternative grant-making powers are under consideration by Government and that the Local Government Bill currently before Parliament includes provision to allow Ministers to make special grants to local authorities.

  4.4.3  Nevertheless, the LGA believes that the fact that there is currently no statutory central contingency fund is a major disadvantage. The joint DTLR/LGA Bellwin Review Group in October 2001 recommended the establishment of such a fund, which could be carried forward from one year to the next if not used (recommendation (vi) in the Review report). Furthermore, the local government White Paper "Strong Local Leadership—Quality Public Services" sated, in Chapter 6 "Investing for Improvement", paragraph 6.16, "we will reform the [Bellwin] scheme along the lines recommended by the joint DTLR/local government review group, by setting its funding on a sounder footing . . . ".) The LGA considers that the Government should now give serious consideration to the establishment of a central contingency fund.

4.4  The Partial Regulatory Impact Assessment (RIA) (Local Responders)

  4.4.1  The Partial RIA relating to local responders (circulated with the draft Bill) mainly concerns itself with costs to businesses (for example, of attending meetings, training and exercises). No account is taken of the likely costs to Category 1 responders (such as local authorities, or the emergency services) of undertaking the same activities, or for meeting the requirements to undertake risk assessment (hazard analysis), prevention and education planning, or internal business continuity planning, or to provide public warning and information and commercial business continuity advice and assistance. Furthermore, the establishment of the Regional Resilience Team will require an assessment of regional capabilities, including planning, training, exercises and liaison.

  It is suggested that the costs on all Category 1 and 2 responders should be assessed, taking into account the new and additional burdens placed on them by this legislation.

5.  IDENTIFIED RESPONDERS

  5.1  The list of Category 1 responders inlcudes NHS Ambulance Trusts. It is considered that the list should also include other health agencies that have an input into local emergencies, such as Primary Care Trusts and Strategic Health Authorities.

  5.2  Additionally, Government itself should have a duty to carry out risk assessment (hazard analysis) of regional or national emergencies, such as an outbreak of foot and mouth disease. Regional representatives will sit on local resilience forums; all other members of these forums will have such a duty, so perhaps the Government representatives should have a similar duty.

6.  EMERGENCY POWERS

  6.1  The LGA concurs with the generally held view that the content of the Emergency Powers Act 1920 no longer reflects the realities of the early 21st century and supports the need for revision of the Act. However, this has been an area where there has been little consultation with local government.

  6.2  The LGA agrees with the proposal that the circumstances in which special legislative measures may be taken should be expanded from limited threats to public welfare, to include threats to the environment and to the political, administrative and economic stability of the UK and threats to its security resulting from war or terrorism.

  6.3  The LGA also agrees that the use of special legislative measures should be possible on a sub-UK basis, provided that the "triple lock" (as defined in the Defence Select Committee's Report) is in place.

  6.4  With regard to the formal declaration of an emergency, the fact that the Monarch must make a Royal Proclamation is an important check and underlines in the public's mind the seriousness of the situation. The LGA would therefore oppose the proposal that the Secretary of State might be empowered to make such a declaration. It is not considered that there would be much risk of a delay; in this age of new technology and high speed communication, surely the Monarch can be available at all times, if only in the "virtual" sense.

  6.5  The WLGA points out that, if it is possible for the nature of an emergency to fall wholly within the terms of the devolution settlement, it may be arguable that the National Assembly should have such powers. The WLGA considers that if these powers were to be granted, measures to ensure a consistent approach would be vital. Cross-border issues, with the potential for conflicting policies and arrangements for the involvement of other branches of government, not addressed in the Cabinet Office consultation paper, would need to be clear to all parties. Issues around the accountability of services such as the Police, the Magistrates' Courts Authority and others normally accountable to the other government departments need addressing. Further research upon a range of such issues must be conducted and published before Parliament considers such an option. The WLGA believes that since most scenarios would involve other Government Departments, usually in a lead role context, the logic of a Whitehall Minister seeking such a declaration remains more apparent and more immediately capable of implementation. There is no doubt that this matter will have to remain under review as the scope of the Assembly's remit is widened but at present too many unanswered questions exist.

  6.6  The proposed emergency powers to requisition property, order its destruction and regulate the movement and relocation of the general population are draconian in nature. With regard to any potential civil liberties concerns surrounding these powers, the LGA recognises clearly that the Government needs to have power to act in a variety of ways in an emergency for the common good and has no argument with the powers themselves, provided that all reasonable checks and balances are in place. However, the draft Bill proposes that Government be given these powers to act "with or without compensation". We would query why there should be no liability to pay compensation in circumstances where property, including domestic premises, is seized and destroyed.

7.  COASTAL POLLUTION

  7.1  The draft Bill does not give sufficient weight to the issue of coastal pollution. For example, the definition of contaminants should include all oils. Also, Principal Councils whose areas include areas of coastline should be given the duty to plan and co-ordinate the response to coastal pollution.

8.  FIRE AND CIVIL DEFENCE AUTHORITIES

  8.1  The LGA supports current proposals that there should be greater freedoms and flexibilities for local authorities. Under existing legislation, there is provision for Principal Councils to be able to contract out all or some of their emergency planning work to fire authorities and others who may be better placed to undertake this work in terms of skills and experience. The LGA will be seeking confirmation that the proposed legislation will impose no constraints upon any Principal Councils wishing to make joint arrangements with any other authorities, including fire authorities.

9.  ISSUES SPECIFIC TO WALES

  9.1  Generally speaking, it is agreed that the arrangements proposed for Wales strike the right balance between reflecting the devolution settlement and ensuring consistency across the UK, with the following provisos:

    —  There must be provisions for the transfer of funding for the emergency planning service to the National Assembly, as addressed in paragraph 4.2.2 above.

    —  With regard to the issue of responsibility at regional level, in a Welsh context the Assembly is well placed to provide the advantage of regional accountability, although difficulties may arise from the fact it is not, in many circumstances, the lead Government Department. There is therefore the potential for a conflict of accountability, since it is perceived that the Regional National Co-ordinator will report to the lead Government Department Minister. This issue requires closer examination in the Welsh context to examine the potential options with partner agencies to ensure that the proposed outcome has credibility in operational, legal and political contexts.

    —  It is considered that the question of the declaration of special emergency legislation may impact upon the potential roles and responsibilities of the National Assembly.

  Further clarity is essential on these points before more specific agreement can be given.

  9.2  It is agreed that the Emergency Co-ordinator in a devolved country should be flexible to reflect different types of emergency, subject to ensuring that whoever performs this role has the appropriate powers available to them and has direct accountability to the relevant lead Government Minister.

1 September 2003


 
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