Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence


Memorandum from BT

SUMMARY

  1.  BT is committed to enhancing the resilience of the United Kingdom to disruptive challenge. We are keen to play our part in ensuring the best possible civil contingency framework exists in the UK.

  2.  An objective of the Bill is consistency of application. This can only happen if it is clear how the Bill fits with existing industry specific regulations imposed by regulators such as Oftel.

  3.  The Bill should include a statutory duty for Government to fund the costs of Category 1 and 2 Responders for costs incurred as a result of pre-planning for emergency, the costs incurred in dealing with an emergency and the costs incurred post emergency which are attributable to the emergency.

  4.  The Regulatory Impact Assessment is a partial one only. The local responder proposals apply to just England and Wales. No account is taken of the costs of dealing with the emergency once it has happened. No account is taken of the detailed regulation or secondary legislation which might come later. All of these factors need to be taken into account.

  5.  The emergency regulations may confer on a Minister of the Crown or "other specified person" a power to give directions or orders. This is an extraordinarily wide power. It is potentially open to serious abuse. The Bill needs to circumscribe the power to issue directions or orders.

  6.  The consultation does not highlight the proposed scope of the regulation making powers for comment. We believe it should do so.

  7.  For the avoidance of doubt and because of the possibility of conflict, existing regulation such as the Health and Safety at Work Act should be safeguarded so that it is ensured that it continues to apply in the event of an emergency being declared.

  8.  The Bill is an enabling Bill. Duties imposed on responders will be refined by regulation and secondary legislation. Regulations and secondary legislation coming out of the Bill should be the subject of full consultation with interested parties.

  9.  BT recognises the importance of sharing information in all phases of the emergency cycle. The Bill should be amended to ensure the confidentiality of shared information and prevent its use to secure commercial advantage, with appropriate penalties for infringement.


INTRODUCTION

  BT is committed to enhancing the resilience of the United Kingdom to disprutive challenge. We are keen to play our part in ensuring the best possible civil contingency framework exists in the UK.

  We have made detailed comments on a number of the questions posed as well as additional more general comments. These range from requests for clarification through to concern over the practicality of proposals contained in the Bill.

  BT has long appreciated the importance of business continuity planning and has developed a portfolio of products and services to address this need. We are able, for instance, to switch a customer's communications traffic to an alternative site at short notice in the event of a disaster or an emergency. This will enable a business to continue operating at some level in the event of a disaster. We would be happy to provide more detailed information on what is available if this would be helpful.

  The key for effective civil contingency is consistency of approach and flexibility to adapt to changing circumstances. With this in mind the arrangements should be subject to continuous review and audit. Our response below should be read in this light.

(I)   GENERAL COMMENTS

(a)   Consistency

  A stated objective of the Bill is to deliver consistency of approach and outcome. However BT, as with other providers of public telephone networks and publicly available telephone services, is subject to sectoral regulation relating to emergency planning. Condition 5 of the General Conditions of Entitlement made under the Communications Act 2003 imposes obligations on BT (and other communications providers) in relation to which a direction is made by Oftel's Director General of Telecommunications. The effect of this direction is to specify a list of central and local government departments for the purposes of the Condition. Communications Providers such as BT, to whom General Condition 5 applies, are required to make arrangements for communications services in Disasters as specified in the Condition, following a request from the authorities responsible for Emergency Organisations and/or the departments of central and local government specified in the direction.

  A key element of the Bill is to deliver a single framework for civil protection in the United Kingdom. Yet the consultation does not address sectoral regulations such as those referred to above. We are concerned that this introduces the potential for overlap and hence duplicated regulation, and a risk of confusion over roles and responsibilites. We therefore seek clarification from the Cabinet Office as to how the Bill will interface with sectoral regulation and with the sectoral regulators themselves.

(b)   Costs

  In the past, multi-agency arrangements have tended to work well on the basis of voluntary co-operation. BT agrees that the time is right to effectively codify existing arrangements and improve consistency of approach. But this should apply to the issue of funding also. This demands clarity over who pays for what, for all parties involved. The consultation touches on the funding of local authorities in England and Wales but only in the pre-emergency planning phase. The funding of activities during and after an emergency need to be addressed too and this needs to be for the whole of the UK. BT believes that the Bill should include a statutory duty on Government to fund the costs of Category 1 and 2 responders for costs incurred before, during and post emergency. Costs to be covered would be those incurred as a result of activities beyond individual operational or "business as usual costs" in reacting to emergencies as defined by the Bill. Also, there should be in place a mechanism to enable such cost recovery to take place. Funding is fundamental to the definition of ownership of roles and responsibilities. The Government should address it. Otherwise there may be procrastination in the event of an emergency in the hope that someone else will pick up the bill.

(c)   Checks and Balances

  Under paragraph (3)(a)(ii) of Clause 21, the regulations may confer on a Minister of the Crown or "other specified person" a power to give directions or orders. This is an extraordinarily wide power, not subject, for example, to any limitations as to the types of directions which may be given, the purposes for which they may be given or even what categories of persons might be given the power. It is potentially open to serious abuse if, say, unlimited powers are given to minor unaccountable officials, particularly as there will be offences of non-compliance/obstruction (see paragraph (3)(i)). The Bill needs to circumscribe the power to issue directions.

  Provision is made by the Bill for emergency regulations to be laid before Parliament and that they should lapse after seven days unless both Houses of Parliament have passed a resolution approving them. A Government with a large majority would be unlikely to lose a vote on the regulations, and the procedure does not allow for amendments to be made. There is no provision in the Bill for the regulations, or any action taken under them, to be subject to any form of review by or appeal to an independent person or body. Indeed, it is noticeable that a question which is not asked is whether respondents agree with the proposed scope of the regulation making power which, we believe, should be an important issue for this consultation.

(d)   Definitions

  In relation to Emergency Powers, the definition of "emergency" in Part 2 of the Bill, Clause 17(2)(f) includes "disruption of an electronic or other system of communication". We do not believe that disruption of an electronic system of communication on its own should be included in this definition of "emergency". Disruption to BT's network on its own, rather than as a by-product of a more serious incident involving several Category 1 and 2 responders, is something that we have the expertise and processes to deal with. There could be no value added by involving local or national officials under such circumstances. Government responders are unlikely to have the required knowledge, skills or expertise to direct the details of a telecommunications recovery. The definition of "emergency" in Part 2 should be refined accordingly.

  The specification of Category 2 Responder set out in Schedule 1, Part 2, paragraph 12, should be altered to reflect the new regulatory regime established by the Communications Act 2003.

(e)   Existing Legislation

  There is nothing contained in the Bill to dis-apply existing legislation, such as the Health and Safety at Work Act (HSW), so any directions etc made under the new regulations will be subject to such law too. This may affect the ability of BT or anyone who is subject to a direction or order, to comply with it. However, because there may be a conflict between the duty (under threat of criminal sanction) to comply with a direction or order and the requirements of legislation such as the HSW Act, the Bill ought to make clear that the latter prevails.

(f)   Proposed re-drafting of specific clauses of the Bill

  Clause 2(1)(g) should be re-worded to: "maintain appropriate arrangements to warn the public, and to provide appropriate advice to the public, if an emergency is likely to occur or has occurred."

(g)   Further consultation

  The Bill is an enabling Bill covering a number of different types of body. The scope of the powers set out in the Bill are wide ranging. Duties imposed on responders will be refined by regulation and secondary legislation. Regulations and secondary legislation made under the Bill should be the subject of full consultation with interested parties.

(II)   ANSWERS TO SPECIFIC QUESTIONS

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?

  "Emergency" is defined in both Part 1 (Local Arrangements for Civil Protection—see Clause 1(2)(f) and Part 2 (Emergency Powers—see Clause 17(2)(f) of the draft Bill as including "disruption of an electronic or other system of communication". We have commented above (paragraph i(d)) in relation to Part 2. So far as Part 1 is concerned, a similar point arises that it is not appropriate for "ordinary" failures of electronic communications networks (or other "utility" networks) to be caught by the definition, but in this case, the power of the Minister to specify by regulations in what kind of emergency the Clause 2(1) duty is to be performed will enable him effectively to exempt such network failures.

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?

  The obligations set by the Bill are described at a high level with Category 2 responders being required in regulations to co-operate with multi-agency planning and share information. These seem sensible enough and should facilitate operationally effective and financially efficient planning and response to emergencies at the local level. However, until the more detailed regulation and possible secondary legislation is known it is difficult to make any more meaningful comment here. Added to this, it is difficult to comment on particular obligations until the issue of "who pays for what" has been addressed. It is important that Category 1 and 2 responders are clear on what their responsibilities are in terms of funding. Only then can a real system of accountability be established.

  BT recognises the importance of sharing information in all phases of the emergency cycle. However, we note the Bill makes no provision for restricting the use of information shared as a result of the Bill's requirements. BT recommends that the Bill be amended to ensure the confidentiality of any information shared as a result of those requirements, and to prevent it being used anti-competitively or otherwise to secure a commercial advantage, with appropriate penalties for infringement.

  The focus of the Bill is on "emergency"planning. We believe the Bill should place a similar obligation on the implementation of those plans by responders.

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

  The membership of categories 1 and 2 seems right.

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 Bill gives Government wide ranging powers to make regulations about the extent of the contingency planning duty and the way it is to be performed. The consultation document states in paragraph 20 of Chapter 3, in relation to local responsibilities, that Government has developed an approach "reducing the degree to which the Secretary of State prescribes particular approaches or actions". Whilst we welcome this approach, it is not clear how it will be achieved or monitored or what the process of appeal or objection might be. There is nothing in the Bill relating to this or otherwise circumscribing the Secretary of State's powers and we would welcome further detail on this.

  We are pleased that Government accept that the degree of discretion allowed to responders should be maximised. However, we believe that the Bill does not establish that the principle of least regulation should apply, in line with the principles of good regulation. The principle of regulation only where it is necessary is consistent with the conclusions of the Better Regulatory Task Force and should be made explicit.

  Ultimately, the greatest impact of the Bill on responders will come from the detailed regulation and secondary legislation following it. Until this has been published it is difficult to provide any further comment against this question. This detailed regulation will have a major influence on the costs of implementing the Bill.

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?

  Clearly consistent arrangements for multi-agency working should be established and this is probably best achieved through the creation of Local Resilience Forums.

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 is a partial one only. The local responder proposals which are the subject of the RIA apply just to England and Wales. No account has been taken of the costs of dealing with the emergency once it has happened. The merits of such a regulatory assessment, which looks at only part of the whole, is therefore dubious.

  BT is not in a position to be able to confirm that the appraisal of costs is adequate or accurate, as any robust assessment must rest on an understanding of features which are, at present, either vaguely defined or not defined at all. Chief amongst these is the detailed regulation and secondary legislation to which the Bill refers. It is not possible to produce a tolerably accurate estimate of the costs until BT is able to form a clear idea of what the detailed regulations are and what the secondary legislation is likely to entail.

  The Bill's estimate of costs only considers the labour costs of supporting this legislation, yet overhead and operating expenditures will undoubtedly be incurred even in the pre-emergency phase, and capital costs will need to be considered too. The opportunity cost of diverting resources to work on an emergency, which could generate a better return if used elsewhere, has not been included either. Nor have costs resulting from breaches of customer contractural commitments, such as guarantee schemes, caused as a result of diverting resource to service an emergency.

  Responding to an emergency may necessitate expenditure of capital, as infrastructure is replaced and or repaired, as well as current costs. The decision to incur such expenditure in an emergency will not be judged on the basis of normal commercial criteria but on other priorities. For example, there may be a need for substantial communications capability at an emergency site which under normal commercial considerations would not be economically viable.

  Detailed regulation and secondary legislation which the Bill will prompt could have a major impact on the costs of implementing the Bill's proposals. Until these are known, we believe that it is not feasible to carry out a Regulatory Impact Assessment as it cannot capture all the costs involved. The RIA published is a partial one which cannot by definition accurately reflect the costs and benefits of the Bill's proposals.

  BT already has structures and processes in support of its obligation to make arrangements for communications services in disasters under condition 5 of the General Conditions of Entitlement. Once the detailed regulation and relevant secondary legislation is known, their analysis will enable BT to evaluate what the cost implications are. It is likely that there will also be a migration cost in accommodating the processes and structures of the current regime to the needs of the new one. Annex D of the Explanatory Notes document states "Initial discussions with a BT manager indicates that the additional costs of providing information for emergency planning purposes and of taking part in occasional meetings will not be significant." However, it is not clear in what context these comments were made, bearing in mind that the detailed regulation and secondary legislation are unknown at this time. Only when this is available can a sensible assessment of cost impacts be made.

  Annex B sets out how Category 2 responders would be affected by the preferred Option 2: Duty on a limited range of organisations. This seems to comprise a series of "one off" events rather than a system of continual testing and improvement. A process of continual assessment and change will be necessary if it is to meet the objectives of flexibility to react to changing circumstances as set out in the consultation. This would be considerably more costly to implement than that proposed by Annex B.

  The RIA states that review of the local level proposals will be by the Cabinet Office and evaluated within three years of coming into force. We suggest review should happen sooner than this, particularly with regards to the costs and that this should happen as soon as a realistic assessment of costs is possible.

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?

  No comment.

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 level of funding is not specified. Overall there should be sufficient funding allocated in order that all Category 1 and 2 responders can be recompensed. We have concerns over whether this is the case. For instance, there does not appear to be any assessment of the costs of training and awareness events in the RIA. Furthermore, discussion of funding in the consultation is limited to pre emergency. Costs incurred both during and after an emergency should be taken into account too and these are likely to be significant. We believe that the Bill should contain a specific duty to fund the costs of both Category 1 and 2 responders.

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

  There should be robust performance management of civil protection activity to ensure operational effectiveness and financial efficiency. The consultation document states "the use of existing mechanisms" will achieve this. This is probably the correct approach.

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?

  We agree with the role of Regional Nominated Co-ordinator.

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

  We agree with the principle of applying special legislative measures on a regional basis.

  The local response capability is the building block of our ability to deal with emergencies. Such incidents exist along a spectrum of severity ranging from local flooding to wide area disruptions such as those seen recently with foot and mouth. A regional focus will ensure that local resources can be used in the most effective and efficient way based upon the emergency identified in the local area. It will minimise disruption elsewhere and allow deployment of resources from outside the area should this be necessary.

  Application of measures on a regional basis will reinforce the concept of containment to the area affected by the emergency.

  A regional emphasis provides for greater flexibility, proportionality, deployability and robustness and addresses devolution issues.

  Most emergencies in the UK tend to affect only part of the country at a time. In the main they are handled at a local level by the emergency services and the appropriate local authority with no direct involvement by central government. Therefore it seems sensible that special legislative measures are applied on a regional basis.

  However effective co-ordination between the centre and the region is essential for such an approach to work. Consistency across the UK in terms of approach adopted, its effectiveness and efficiency are made more difficult by a regionalisation approach. This will need to be addressed. The role of the CSS will be central in providing the central focus for the cross-departmental and cross agency commitment, co-ordination and co-operation necessary.

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, we agree. The current legislation no longer provides an adequate framework for modern emergency planning. The legislation under which the Government can respond to extreme emergency situations needs updating to turn it into a usable tool fit for the 21st century thereby creating a modern framework for co-ordinating contingency planning.

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 UK and to threats to its security resulting from war or terrorism? If not, how would you like to see the circumstances narrowed or extended?

  We agree.

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

  This question seems to duplicate question 11 and so its purpose is not clear. Therefore we would refer you to our response to question 11. That said, we agree. It will allow for a more flexible, targeted and proportional approach.

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, whom should it sit with?

  No comment.

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 comment.

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.

  We do not agree. It would leave companies exposed to legal challenge should individuals or organisations feel their human rights have been infringed by those companies' implementation of emergency regulations. A stronger measure of legal protection is required for companies' actions in circumstances where a swift and certain response is absolutely essential. We believe that companies need protection from Human Rights Act challenge when acting under these regulations.

  The consultative document also asserts (paragraph 30 of Chapter 5) that the Bill is compatible with the European Convention on Human Rights (ECHR) but it is not clear that that is necessarily the case. Paragraphs 3(b) and (c) of Clause 21 respectively provide that the regulations may enable the requisition or confiscation of property and the destruction of property, animal life or plant life, in both cases with or without compensation. The entitlement to peaceful enjoyment of possessions is provided for in Article 1 of the First Protocol to the ECHR, and although the state is able to deprive a person of his possessions in the public interest, the case law on the Article shows that compensation is always required except in "exceptional circumstances". It is therefore not clear that to empower the regulations to enable deprivation of property "with or without compensation" is necessarily compatible with the ECHR. It would be preferable for the Bill to say something like "subject to appropriate compensation being payable except where exceptional circumstances prevail".

SCOTLAND, WALES AND NORTHERN IRELAND

Q18.   Do you agree that the arrangements proposed for Scotland strike the right balance between reflecting the devolution settlement and ensuring consistency across the UK? If not, what changes are necessary?

Q19.   DO YOU AGREE THAT THE ARRANGEMENTS PROPOSED FOR WALES STRIKE THE RIGHT BALANCE BETWEEN REFLECTING THE DEVOLUTION SETTLEMENT AND ENSURING CONSISTENCY ACROSS THE UK? IF NOT, WHAT CHANGES ARE NECESSARY?

Q20.   Do you agree that the arrangements proposed for Northern Ireland strike the right balance between reflecting the devolution settlement and ensuring consistency across the UK? If not, what changes are necessary?

Q21.   Do you agree that the role and accountability of the Emergency Co-ordinator in a devolved country should be flexible to reflect different types of emergency? If not, what alternative role should the Emergency Co-ordinator have?

  All parts of the UK should enjoy the same degree of civil protection. A key objective of the Bill is consistency of application. This needs to be ensured throughout the UK. We are concerned that consultations being run elsewhere by devolved administrations may result in a regime at odds with this, resulting in a diminution of effectiveness and efficiency. Emergencies do not respect consistutional boundaries and may straddle them which would lead to problems if different arrangements applied within different administrations.

  We believe that the arrangements for civil contingencies should be world class throughout the UK, including in the devolved administrations. This objective would suggest consistent application of the Bill throughout the UK.

Q22.   Do you agree that the devolved administrations should be able to declare that special legislative measures are necessary, and take action accordingly? If not please explain why.

  We agree with this. It is consistent with the aim that decisions be taken as close to the emergency as possible and with special legislative measures applying on a regional basis.

LONDON

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

  All parts of the UK should enjoy the same degree of civil protection. A key objective of the Bill is consistency of application. This needs to be ensured throughout the UK. We are concerned that consultations being run elsewhere by devolved administrations will result in a regime at odds with this, resulting in a diminution of effectiveness and efficiency. Emergencies do not respect constitutional boundaries and may straddle them which would lead to problems if different arrangements applied within different administrations.

  We believe that the arrangements for civil contingencies should be world class throughout the UK, including in the devolved administrations. This objective would suggest consistent application of the Bill throughout the UK.

1 September 2003





 
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