Examination of Witnesses (Questions 280-294)|
16 OCTOBER 2003
Q280 Lord Lucas of Crudwell and Dingwall:
What involvement do you see for other private sector institutions
which are pretty vital to ordinary life, such as the fuel suppliers,
food, road transport? Will they be involved in this process at
all of planning for emergencies?
Mr Hargreaves: What we have said
is that in terms of using category 1 and category 2 we are trying
to capture the people who are at the core of or are essential
in co-operating with the local effort. What we are not seeking
to do is capture everyone who has even the most peripheral interest
in planning in certain local areas. What the Bill allows though
is for certain key private sector organisations to be involved
in particular local areas depending on local circumstance. It
does not stop that sort of involvement. In terms of what we call
the critical national infrastructure we have a separate process
for engaging with them at a national level which takes place through
Government departments and the security agencies who have a direct
Q281 Lord Lucas of Crudwell and Dingwall:
Fine, but is that going to be something we all get to know about?
Will we be told what is going on in some way so that we know how
resilient our food supply arrangements are, for instance?
As I say, a balance clearly has to be struck here between the
legitimate concerns that you have expressed to ensure that people
are aware of and can have confidence in the measures that the
Government is taking and to ensure that by that process we do
not render less effective the resilience efforts that Government
is directing its work towards. As I said earlier, we are giving
consideration within Government as to how best to strike that
balance. We would be very interested in the views of this Committee
as to how best we could achieve the transparency that there have
been some moves towards in terms of the evidence that you have
received, but it is a matter that we will be giving careful consideration
Q282 Patrick Mercer:
Minister, how would you respond to the view that local authorities
should have the flexibility to select some of the category 2 responders
in their area?
The current effectively unregulated situation has led to variable
engagements of co-operating bodies in local authorities across
the country. As I say, a central part of the intention of this
Bill is to ensure that there is a national framework. In that
sense we are keen to ensure that there is a degree of coherence
in terms of the planning and framework that are in place. Bodies
that are not covered by the list for category 1 or category 2
can of course still continue to be involved in local civil protection.
That is why again we have endeavoured to strike the appropriate
balance between a national framework and allowing the flexibility
of local response which in many areas has served us very effectively
in recent years.
Q283 Patrick Mercer:
We have touched on this already, but what reasons are there for
not including Government regional offices as category 1 responders?
My recollection of the position when I last sought advice on this
matter was that there is a particular legal difficulty with that
in that Government Offices of the Regions do not have a separate
legal personality and therefore to place a distinct legal burden
upon them would be, to say the least, difficult. Again, it is
important to recognise that Government Offices of the Regions
are there to support and assist both central Government in its
efforts to liaise effectively with what is happening at a local
level and equally to work effectively with local government.
Q284 Lord Jordan:
The Regulatory Impact Assessment claims (paragraph 40) that the
proposals "achieve the government's policy objectives without
imposing significant new burdens on the relevant organisations
in either the public or private sectors". You earlier made
reference to your view on the burden on the private sector, but
most local authorities believe that the Bill will impose new duties
and generate additional work and therefore increase their expenditure.
Do you still hold to the view in the Regulatory Impact Assessment
and, if so (and given the gulf between the Cabinet Office and
local authorities), should the implementation of the regulations
governing civil contingency preparations be the subject of an
I do not believe that would be the appropriate way forward. Rather
than characterising the divide between the Cabinet Office and
the Local Government Association or local authorities as being
a gulf, rather I would say that there is a constructive and important
dialogue under way on this very issue at the moment. There have
been significant resources contributed to the area of civil protection
through a range of responders over recent years and very significant
increases in the funding that has been provided. My recollection
is that it is a 35% increase for local authorities over the last
few years in terms of investments in fire capabilities, additional
funding for the police and a range of other services. I think
there is an important discussion to be had but I return to my
basic proposition, which is that the focus of this Bill is the
framework for civil protection rather than the funding of civil
protection. The appropriate way forward in terms of discussions
around funding is the discussions that are taking place at present
between local authorities and the Cabinet Office and others in
central Government. That will find expression not in statutory
words on the face of this Bill or any other but rather in the
Spending Review decisions that are reached in SR2004, and I can
assure you that there are full and candid discussions being taken
forward with local government to make sure that their voice is
heard at the appropriate stage of those decisions that are being
reached by central Government as regards funding.
Q285 Mr Bailey: You
spoke of a dialogue. Yes, there is a dialogue. I think it is fair
to say that there is always tension between local government and
central Government on this issue. You do plan to replace the direct
grants previously given under civil defence legislation with funding
through the Revenue Support Grant. Why, therefore, does the Bill
not include a requirement on central Government just to meet the
expenditure incurred by category 1 and 2 responders in planning
for civil contingencies and in dealing with emergencies?
On this point, I would echo some previous remarks that have been
offered to this Committee by the Deputy Justice Minister from
Scotland, Mr Hugh Henry, who happens to share my constituency
as the Member of the Scottish Parliament for Paisley South. He
said, having been himself a council leader prior to entering the
Scottish Parliament, that there was always an interesting contradiction
between those voices in local government demanding more autonomy
and control at a local level with a desire for more funding and
a recognition of the need for there to be discrete funding for
particular areas of local authorities' work. The policy position
of the government is that we want to move towards the more general
funding. The move to the revenue support grant is about bringing
a greater degree of autonomy to local government and to move away
from the idea of there being discrete budgets for discrete areas
of work. In that regard, this is not a significant departure from
government policy that is before the Committee or the policy consequences
that would follow from the framework that the Bill sets out. Rather,
it is entirely consistent with broader government objectives of
ensuring that we do move towards a general revenue support grant.
Specifically in relation to civil protection, we believe that
this would have the merit of ensuring that civil protection is
mainstreamed within the thinking of local government in the same
way that it is important that resilience is mainstreamed across
government rather than corralled into a single department. Secondly,
it is also important to recognise that the specific grant that
has been made by central government over many recent years to
local authorities is a contribution towards the civil protection
work that is taken forward by local government. It has never been
seen to be and is recognised by the Local Government Association
as not being, the total sum that is spent by local government.
There is consensus with the Local Government Association on that.
There is a happy coincidence that the government's objective is
to move towards a revenue support grant, rather than individual
streams of funding and that is also the policy objective that
has been set by the Local Government Association. I think these
are important discussions. I do not diminish their importance
but it is probably not of direct relevance to this Bill as much
as for the spending review process that we are just beginning
Q286 Mr Bailey: I
certainly accept that there is a degree of common ground between
central and local government on the need to have more autonomy
over local budgets, but it does obviously throw up fresh issues,
not least to ensure that from the government's perspective money
which is allocated through the revenue support grant is actually
used to provide improved civil defence measures. What sort of
interim steps do you think should be taken to move from the previous
basis of funding to the revenue support grant, perhaps until an
effective audit or inspection regime is established, in order
to ensure that that money is spent in the appropriate manner?
I cannot say I am convinced of the case that has been made to
date that transitional arrangements would be necessary. We believe
that we want to maintain the right level of spending on local,
civil protection. We will not remove the specific grant obviously
until the new framework is in place. As part of that new framework
there will be means of auditing and reporting the work of local
authorities through the existing auditing bodies to ensure that
there is a clearer view of the support that is being provided
locally in terms of the outcomes on civil protection being achieved
by local authorities across the country.
Q287 Mr Bailey: Moving
on to the capital side, do you think there is a case for a capital
grant regime to finance certain elements of civil contingency
We are already making a substantial targeted investment in equipment
within an over-arching national capabilities framework which Roger
spoke of earlier.
Mr Hargreaves: We are making very
significant investment in areas like the New Dimension project
for the fire service. We are investing tens of millions of pounds
in new equipment. There is investment in the health service and
additional investment in resilience measures which the health
service required. There is the 35% increase in the level of funding
for local authorities, some of which will be directed towards
capital, but most of that will be current. There is the additional
funding which goes into the police service, in part again which
goes on capital projects. Across the emergency services there
is quite a significant investment over the last few years, focusing
specifically on resilience measures and, within that, capital
Q288 Mr Bailey: Finally,
the Bill does not mention the Bellwin scheme. Is it going to be
retained or is there some merit in incorporating it into legislation,
or do you think it should be replaced with some sort of contingency
The Bellwin scheme is retained by agreement with the Local Government
Association and we believe it should remain part of local government
Q289 Lord Archer of Sandwell:
Could I ask a question arising from some of your answers about
the right to take industrial action? Could I take you back to
your law finals and what you call `delict' and we call `tort'?
Assume under this Bill that one of the scheduled bodies has statutory
duties imposed upon it. Assume that its workforce takes industrial
action, or even that a union organises industrial action. Would
that not amount, on the part of the workforce or the union, to
inducing a breach of statutory duty if the result was that the
body could not fulfil its statutory duty?
In recent days, it has sometimes felt like I have been sitting
my law finals, but the area of my review did not cover my delictoral
notes from 1991 so you will have to forgive me. I would be more
than happy to write to you on the specific point that you raise.
There is clearly an interface between delict and employment law
here and I hesitate to enter such deep waters without greater
Q290 Lord Archer of Sandwell:
Could you give an undertaking to look at the case of Mead v
Haringey Borough Council and the lack of protection of trade
unions, even where there has not been litigation preventing a
I am happy to give the Committee that assurance and, perhaps more
usefully, give you an assurance that far better qualified lawyers
than I will also look at the matter before we revert to you.
Q291 Lord Archer of Sandwell:
Can we turn to clause 21(3)(1) which says that the regulations
may confer jurisdiction on a court or tribunal, which may include
a tribunal established by the regulations. First, has there been
consultation with the Council on Tribunals? Perhaps I should declare
an interest as a former chairman of the Council.
I am not aware that there has been. I can certainly check that
factual point and write to the Committee confirming whether or
not that has taken place.
Q292 Lord Archer of Sandwell:
I would be grateful. Could you have in mind that it exists by
statute for the very purpose of giving advice to government on
the creation of tribunals and their powers? Does the suggestion
that it should be possible to create a tribunal by regulation
include criminal jurisdiction?
We cannot think of any examples where we would need to confer
criminal jurisdiction in the sense of military tribunals. The
principal benefit of this power would be to establish new tribunals
to deal with elements of the emergencyfor example, to deal
with appeals against requisition or for the award of compensation.
In that regard, we cannot think of any examples where we would
need to confer criminal jurisdiction. It would only be possible
for emergency regulations to confer criminal jurisdiction in sentencing
on tribunals where this was accorded within the protections contained
within Article 6 of the European Convention on Human Rights. That
is the right to a fair trial.
Q293 Lord Archer of Sandwell:
I was not questioning its compliance with the European Convention
or the Act. Would you again bear in mind that the Council on Tribunals,
as a general policy, has advised very strongly against the creation
of any court or tribunal otherwise than by primary legislation?
I will certainly bear the point you make in mind.
Q294 Chairman: We
are nearly through, Minister, but I could not possibly let you
escape without asking you one last question. What is so "essential"
about educational services that their disruption can lead to a
declaration of a national emergency? Can you perhaps give us an
example of such a threat?
I have laboured long and hard with officials in expectation that
such a question would be asked. Let me explain that we included
education because we wanted to ensure that threats to essential
public services were covered and captured within our definition
of "emergency". That was basically the brief that was
given to parliamentary counsel in terms of the phraseology that
was then reflected on the face of the Bill. In all candour I have
struggled to come up with such a specific example and I can therefore
assure you that I will bear that in mind once we receive the response
of the Committee to the point that you have raised.
Chairman: Thank you very much, Minister.