Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence


Memorandum from Western Power Distribution

  I write on behalf of Western Power Distribution (South West plc) and (SouthWales plc), "WPD" hereafter, to provide comments on the above consultation.

  WPD is the licenced Electricity Distribution Network Operator for South West England and South Wales, an operating territory of some 26,000 square kilometres and serving some 2.5 million customers.

  In responding to the set questions contained within the June 2003 Consultation Document, it is very important to recognise that whilst the Explanatory Notes to the Bill provide information on how the Bill is intended to be used and interpreted, it is the Bill itself which is key.

  WPD recognise the need for such a Bill, indeed WPD has pressed its sponsor department, the DTI, for the inclusion of certain emergency powers to be exercisable by government in the event of an area denial incident. However, whilst the draft Bill largely addresses such issues surrounding a major emergency, it introduces a substantial number of issues of concern to WPD (especially relating to "normal" emergencies such as storms) which could result in significant and detrimental confusion vis-a"-vis the roles and duties of Category 1 Responders, the DTI and licenced Electricity Distribution Network Operators ("DNO's") such as WPD. (Please note in this regard that WPD is not an "electricity supplier").

  These concerns have been included, as far as possible, within the responses to the "set" consultation questions set out below to ease collation of replies by CCS, but a more extensive explanation is provided below.

CLAUSES 1(1) AND (2)

  The definition of emergency is too wide for DNO purposes because it includes "normal" weather related events like, for example, storms which WPD, as a matter of course, deals with in accordance with obligations contained within its Distribution Licence and the Electricity Act 1989 as amended by the Utilities Act 2000 ("the Act").

  These obligations, covering design, network resilience, and operation of the electricity system and the response to faults and emergencies are framed primarily with the customer in mind and to ensure consistency of operations by DNO's throughtout the UK. They are policed by the DTI and regulated by Ofgem.

  If therefore the definition of an emergency is left as it is and is intended to cover a storm (like on the scale of 1990, or October 2002) the provisions of the Bill could mean that Category 1 Responders would (by virtue of clause 2(1)(a-e)) become heavily involved in the day-to-day design, operation and fault response of DNO networks. This could cause three problems.

  In the first instance there may be a conflict between DNO's licence and statutory requirements and the action Category 1 Responders want WPD to take in planning and mitigating against an emergency or the impact of any emergency.

  Secondly, during an emergency, the Electricity Supply Emergency Code requirements (established under section 96 of the Act) already identifies common nationally defined prioritised classes of customers for preservation and restoration of supplies under user classes of "Vital" "Food" and "Other". The Category 1 Responders could disregard this.

  Further, both in planning and during and emergency under the Bill, WPD would have to liaise with up to 45 different Category 1 Responders, namely county councils, district councils and county borough councils (and this is excluding the Category 1 emergency service contacts) which could result in different interpretations of requirements and expectations, confusion and lack of consistency. This could ultimately result in any actions being implemented in a haphazard fashion to the detriment of the customers it is supposed to benefit.

  The need for requirements related to a "Part 2" type scenario are recognised, but the extent to which routine storms should fall under the Bill along with the accompanying regime affecting Category 1 and 2 Responders and duties is not.

  Consequently the draft Bill requires some caveat which recognises and safeguards nationally set government procedures and bars conflicting requirements competing for the same resource. If the national procedures need changing, they should be changed nationally, in the case of DNOs by the DTI, not piecemeal by individual Category 1 Responders.

CLAUSES 2(2), 4(2) AND 5(1)

  As drafted, any Minister could make regulations affecting any other Minister's area of jurisdiction; for example the Minister for Transport might decide to make regulations affecting the DTI sphere of interest. This does not appear to be warranted under Part 1; in times of dire emergency Part 2 provides the necessary latitude.

CLAUSE 2(3)( E)

  As drafted the Bill provides for each and every Category 1 Responder to require every category 2 responder to co-operate, attend meetings etc. In this respect the draft partial regulatory impact assessment is substantially inaccurate; as it assumes that each Utility only has to deal with a single Category 1 Responder; in WPD's case it interfaces with over 45 county, county borough and district councils alone, let alone the other Category 1 Responders. Whilst the problem has been recognised for police areas in paragraph 53 of the partial RIA, it has not been highlighted as an issue for other organisations spanning multiple local authorities.

  It should be a norm that the interface between Category 1 and Category 2 Responders is at county level, not at district level, and this should be reflected in the Bill as a mandatory arrangement not as an option to be decided later under clase 2(3)(e).

CLAUSE 9

  Given the very wide range of organisations listed as Category 1 or Category 2 Responders, the scope for mis-use of generalised requirements in the Bill, and the fact that this relates to Part 1, the powers under Clause 9 should be limited to a Minister of the Crown only.

CLAUSE 12

  Whilst recognising the role of the National Assembly, consultation in respect of the operation of the Bill should take place during the drafting of the Bill, not afterwards, when there would be scope for different interpretations/actions impinging on organisations which span both England and Wales.

CLAUSE 23

  In taking action to restore electricity supplies as a result of an emergency, a DNO may need to seek permission from Government, or the Regional or Emergency Co-ordinator as appropriate, to undertake works for the public good, such as the erection of an overhead line or laying a cable along the surface of a road in breach of normal regulations. These might need to remain in place for many months depending on the nature of the emergency and the ability/duration to repair the existing asset.

  There is a myriad of regulation covering statutory consultation, design standards, planning consents (eg Section 37 of the Electricity Act) etc which normally, and rightfully, apply, but in an emergency would simply inhibit necessary action. The powers under Part 2 would appear to provide for the suspension of such requirements, if deemed necessary by the Government or Co-ordinator, but the lapsing of such permissions after 30 days could well pose considerable legal difficulty leading to removal of the works and a further prolonged interruption of supplies where permanent repairs to the pre-existing infrastructure were inhibited eg by area denial. Whilst clauses 23(3) and (4) would appear to deal with this, it is assumed that these clauses are intended to deal with high level matters.

  I hope the above comments are of assistance. If your Department has any questions relating to this reply, please do not hesitate to call me.

Philip West

Policy Manager

11 August 2003

RESILIENCE, EMERGENCIES AND CIVIL PROTECTION

Q1. Is the definition of emergency the right one? If not, in what ways should it be tightened or expaned to exclude certain classes of event or situation?

  The definition of emergency is too wide for DNO purposes because it includes "normal" weather related events like, for example, storms which WPD, as a matter of course, deals with in accordance with obligations contained within its Distribution Licence and the Electricity Act 1989 as amended by the Utilities Act 2000 ("the Act").

  These obligations, covering design, network resilience, and operation of the electricity system and the response to faults and emergencies are framed primarily with the customer in mind and to ensure consistency of operations by DNO's throughout the UK. They are policed by the DTI and regulated by Ofgem.

  If therefore the definition of an emergency is left as it is and is intended to cover a storm (like on the scale of 1990, or October 2002) the provision of the Bill could mean that Category 1 Responders would (by virtue of clause2(1)(a-e)) become heavily involved in the day-to-day design, operation, and fault response of DNO networks. This could cause three problems.

  In the first instance there may be a conflict between a DNO's licence and statutory requirements and the action Category 1 Responders want WPD to take in planning and mitigating against an emergency or the impact of an emergency.

  Secondly, during an emergency, the Electricity Supply Emergency Code requirements (established under section 96 of the Act) already identifies common nationally defined prioritised classes of Customers for preservation and restoration of supplies under user classes of "Vital" "Food" and "Other". The Category 1 Responders could disregard this.

  Further, both in planning and during an emergency under the Bill, WPD would have to liaise with up to 45 different Category 1 Responders, namely county councils, district councils and county borough councils, (and this is excluding the Category 1 emergency service contacts) which could result in different interpretations of requirements and expectations, confusion and lack of consistency. This could ultimately result in any actions being implemented in a haphazard fashion to the detriment of the customers it is suppose to benefit.

  The need for requirements related to a "Part 2" type scenario are recognised, but the extent to which routine storms should fall under the Bill along with the accompanying regime affecting Category 1 and 2 Responders and duties is not.

  Consequently the draft Bill requires some caveat which recognises and safeguards nationally set government procedures and bars conflicting requirements competing for the same resource. If the national procedures need changing, they should be changed nationally, in the case of DNOs by the DTI, not piecemeal by individual Category 1 Responders.

Proposals:

  We would therefore suggest that national requirements on licenced electricity companies (DNOs) relating to weather conditions such as "storms" are set by DTI and Ofgem. Provision should be made in the Bill to preserve certain nationally set government procedures. This would mean that (especially with regard to the Utility industries) what is already there is being built on thereby improving efficiency, effectiveness and preventing conflict.

  If the national procedures do need changing, they should be changed nationally preferably by the body responsible and not peicemeal by individual Category 1 Responders.

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?

  No because, as has been indicated above, it would appear that WPD would have to potentially deal with a number of Category 1 Responders which, aside from the logistical problem of WPD having to liaise with all them, could have practical implications because of the differing views they all may hold for implementing legislation.

  Futher, this involvement of a number of Category 1 Responders seems to be in direct contradiction with the draft partial regulatory impact assessment ("RIA") which seems to assume that each Utility only has to deal with a single Category 1 Responder (save for paragraph 53 of the RIA which does mention the areas dealt with by the police).

  It should be a norm that the interface between Category 1 and Category 2 Responders is at county level, not at district level, and this should be reflected in the Bill as a mandatory arrangement not as an option to be decided later under clause 2(3) (e).

Proposal:

  It should be a mandatory requirement of the Bill that interface should be between Category 1 and Cateogory 2 Responders at a county and not at district level (rather than an option to be decided later under clause 2(3)(e)).

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

  Following on from our comments above, District Councils should be removed from Category 1, and a general duty imposed on County Councils to ensure that they co-ordinate the requirements as they affect District Councils.

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.

  Yes, but in our view it goes too far because, in WPD's experience, whilst many Councils will no doubt undertake their duties reasonably some councils will take extreme views and will exploit the limits of the wording of legislation and disregard any guidance notes thereby negating the spirit in which the legislation was intended. Consequently it is WPD's belief that enforcement should stay with one body (clause 9).

  Linked to this, at a higher level, under the Bill as drafted, any Minister could make regulations affecting any other Minister's area of jurisdiction which was not in that Minister's area of expertise. (By way of example the Minister for Transport might decide to make regulations affecting the DTI's area of responsibility (Clauses 2(2), 4(2) and 5(1)). WPD does not believe that this would be effective or efficient in dealing with the special requirements of the Category 1 Responders industry concerned.

Proposal:

  Provide that the powers under the Bill may only be enforceable by a Minister of the Crown.

  Do not allow the Ministers to make regulations outside of their jurisdiction because, not only is this not warranted under Part 1, but Part 2 already makes the necessary provisions.

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?

  Yes, consistent arrangements are vital because of the interactions and overlaps between the geographic boundaries of the many Category 1 and 2 organisations involved. A "Local Resilience Forum" must, however, replace any other similar forum such as an emergency co-ordination committee and not add to administrative burden.

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?

  No. The costs on Utilities ignore the very large impact of interfacing with multiple Category 1 councils. The cost would need to take into account the multiple interfacing with Category 1 councils even if just limited by County.

  As currently drafted (clause 2(30)(e)) the Bill could mean WPD having to meet over 45 different Councils and as many as nine police forces. The RIA cost is therefore potentially underestimated 50-fold.

  This impact could be reduced if District Councils were removed from Category 1, and a general duty imposed on County Councils to ensure that they co-ordinate the requirements as they affect District Councils.

Proposal:

  This cost could be reduced if District Councils were removed from Category 1, and a general duty imposed on County Councils to ensure that they co-ordinate the requirements as they affect District Councils.

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.

  No comment.

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

  It is not clear what auditing is proposed for Category 2 Responders. The reference to "performance" implies the creation of some standardised measures with an associated bureaucracy of recording coupled with an audit process, none of which appear to be mentioned in the Consultation or RIA for Category 2 Responders. Anything required should be undertaken by the respective Government sponsoring Department; in WPD's case that would be DTI.

Proposal:

  If some monitoring of performance is required of Category 2 Responders, it should be undertaken by their respective Government department, which in WPD's case would be DTI.

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?

  Yes.

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

  Yes. It is quite possible to envisage a regional emergency, or one which disables central Government in London.

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, but as had been indicated under question 1, existing arrangements on weather emergencies affecting electricity networks and supplies are already dealt with by the DTI. Consequently the introduction of powers which give, or appear to give, Category 1 Responders jurisdiction over such matters will lead to confusion, fragmented policies and dissent.

Proposal:

  The new legislation should tie in with the more specific industry related infrastructure arrangements which are already in place.

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?

  Yes.

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

  Yes.

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, who should it sit with?

  Yes.

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?

  Yes.

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.

  Yes. In taking action to restore electricity supplies as a result of an emergency, a DNO may need to seek permission from Government, or the Regional or Emergency Co-ordinator as appropriate, to undertake works for the public good, such as the erection of an overhead line or laying a cable along the surface of a road in breach of normal regulations. These might need to remain in place for many months depending on the nature of the emergency and the ability/duration to repair the existing asset. There is a myriad of regulation covering statutory consultation, design standards, planning consents (eg Section 37 of the Electricity Act) etc which normally, and rightfully, apply, but in an emergency would simply inhibit necessary action. The powers under Part 2 would appear to provide for the suspension of such requirements, if deemed necessary by the Government or Co-ordinator, but the lapsing of such permissions after 30 days could well pose considerable legal difficulty leading to removal of the works and a further prolonged interruption of supplies where permanent repairs of the pre-existing infrastructure were inhibited eg by area denial. Whilst clauses 23(3) and (4) would appear to deal with this, it is assumed that these clauses are intended to deal with high level matters.

  It is noted that in Para 11 of Chapter 5 of the Consultation Document there is reference to a need to "protect their (CCS) own decison makers". There is also a need to ensure that in taking agreed emergency action under the Bill, that Utilities and their staff are also protected from prosecution arising from non-compliance with some legislation set aside during a declared emergency, or in its aftermath as outlined immediately above.

Proposals:

  Clarify when clauses 23(3) and (4) apply and also extend the 30 day time limit.

  Add provisions to ensure that in taking agreed emergency action under the Bill, that Utilities and their staff are also protected from prosecution arising from non-compliance with legislation during a declared emergency or in its aftermath.

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?

  No comment.

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?

  No. Whilst recognising the role of the National Assembly, consultation in respect of the operation of the Bill should take place during the drafting of the Bill, not afterwards, when there would be scope for different interpretations/actions impinging on organisations which span both England and Wales, such as WPD.

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?

  No comment.

  No because while the Category 1 organisations are bounded by county and thus devolved administration boundaries, those of the Category 2 responders are not. This may lead to territorial differences in policy and approach affecting these Category 2 responders and a potential for conflicts in meeting both devolved and English requirements.

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?

  Yes, agree it should be flexible, but each potential candidate should be a named individual/post.

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.

  No, because whilst the Category 1 organisations are bounded by county and thus devolved administration boundaries, those of the Category 2 responders are not. This may lead to territorial differences in policy and approach affecting these Category 2 responders and a potential for conflicts in meeting both devolved and English requirements.

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 in put in place?

  No comment.

CLOSING REMARK

  WPD feel that, where possible, the relevant Government department for each Category 2 responder should have more involvement in setting common requirements and expectations, which will then be properly linked with routine governance.

  This will mean that the pool of industry knowledge that is already there to deal with "emergency" events in the normal course of business (particularly with regard to Utilities) could be utilised generally and more consistently through a more limited number of contacts thereby achieving the objectives of the Bill as quickly as possible.





 
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