Memorandum from United Utilities
Thank you for your letter dated 19 June 2003
inviting comments on the new legal framework set out in the draft
Civil Contingencies Bill. I attach United Utilities PLC's response.
Our multi-utility provision of electricity,
water, wastewater and telecommunications services permits a unique
view of the draft legislation from the perspective of a Category
United Utilities PLC provides such services
to one in five of the UK population in England, Wales and, shortly,
in Scotland. As such, our business will contain one of the UK's
primary and coherent groups of Category 2 responders. We have,
therefore, taken a keen interest in the draft Bill's contents
and trust that you find our comments useful.
28 August 2003
1. 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.
Yes, but subject to the prospective regulation
under Part 1: Section 1; sub-section (7) drawing the distinction
between threats that are serious but unexceptional and, more relevantly,
those that are both serious and exceptional. Only the latter should
fall within the definition of an "emergency" under the
Stakeholders rightly regard many of the incidents
that UK utilities deal with as serious. However, the capability
of the utilities to manage these efficiently and effectively is
generally well proven. The Licence conditions (electricity), Appointments
(water and wastewater), General Conditions of Entitlement (telecom)
together with statutory and regulatory controls effectively address
emergency preparedness in each of United Utilities' regulated
businesses. Similar responsibilities are reflected in our contracts
for provision of such services in Wales and are being negotiated
Section 2; Sub-sections (1)-(3) place a range
of contingency planning duties on Category 1 Responders and a
statutory duty on Category 2 Responders to co-operate and liaise
with them. However, there is a danger that, by not focusing Category
1 Responders' attention on "exceptional" threats, they
may seek to become involved in operational activities that are
already well controlled. Since large utilities interface with
many Category 1 Responders (typically some 75 within north-west
England) this could lead to extensive and unproductive dialogue.
Such dialogue would:
threaten to undermine well established
and effective operational arrangements;
prove a source of tension between
the parties rather than engendering the co-operation sought;
increase costs and bureaucracy to
no good effect.
Economic impact on manufacturing or service industries
Section 1; sub-section (4) appears to neglect
the economic impact of an emergency upon manufacturing or service
industries. This could arise through their prolonged disablement
(for example: by flooding) or their destruction (for example:
by dam failure). In extreme cases this might have a short-term
influence on GDP. This could be recognised by the inclusion of
a sub-section "4(d) the widespread or prolonged disruption
of key manufacturing or service industries". The same
comment applies to Section 17; sub-section (4).
Section 1; sub-section (3)(a)(ii); the idenfication
of "fuel oils" is unduly specific, being only
one of a range of chemical contaminants whose idenfication is
already adequately covered in sub-section 3(a)(i). The same comment
applies to Section 17; sub-section (3)(a)(ii).
Section 1; sub-section (9)(b): Alteration of
"a specified part. . . " to read "one
or more specified parts. . ." would address the situation
where an organisation's boundaries encompass parts of both England
2. 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?
Not necessarily. In theory, yes but the effectiveness
and efficiency will depend, in part, upon Category 1 Responders
understanding the need to focus on serious and exceptional emergencies
(see Q1 response).
For example, UU's regulated water and electricity
businesses in north-west England deal with some 75 organisations
that could become Category 1 Responders. If even a small proportion
of these decided to interpret the duties placed upon them by Section
2; sub-section 1 in an overly-diligent manner this could be conterproductive
to both parties' efficiency and effectiveness. The limits to such
enquires and the avoidance of their duplication at county and
district level should be addressed by the regulation and guidance
proposed in Section 2; sub-section (2) and Section 3; sub-section
Most telecom businesses have a national presence
and it would be impractical for each to be represented at Local
or even Regional Resilience Forums. It is suggested that proposals
be developed jointly with their industry body, UKCTA, and their
regulator Oftel for appropriate representation.
There is a danger in the response phase that
the Regional Nominated Co-ordinator (RNC) or the Minister may
fail to recognise the need to preserve existing national utility
sector emergency planning arrangements. Such examples include
the National Emergency Plan for the UK Telecommunications Sector
and the Electricity Supply Emergency Code. Utilities do not appear
to be de-facto members of the proposed Regional Civil Contingencies
Committee (RCCC). Whilst this is probably correct, the prospective
RNCs need to understand, or have rapid access to an overview of,
utilities capabilities and emergency response arrangements.
The most efficient way to achieve this joint
understanding would be via "top-down" dialogue at the
Regional Resilience Forum (RRF) and Local Resilience Forums (LRF)
rather than "bottom-up" interaction between relatively
few utilities and many Category 1 Responders. It is important
therefore that the utilities' representation at both Forums is
one of right, rather than by invitation.
3. Do you agree that the membership of categories
1 and 2 is right? If not, which organisations should be added,
moved or removed?
Yes, utilities are best suited to a Category
2 Responder's role.
The relevant UU businesses are correctly identified
within their sectors. However, the regulations proposed under
Section 1; sub-section (7) and their application under Section
1; sub-section (9) may need to address the distinction between
licence holders and service providers as the bodies to whom Section
2; sub-sections (3g) and (3h) apply. For example, whilst Dwr Cymru
holds the licence for water and sewerage services within their
area, the asset management, operation and maintenance of such
assets are currently provided by United Utilites Operational Services
under contract to Dwr Cymru.
4. 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 used should be expanded or constrained.
On balance, yes. But the intended flexibility
carries risks of its own. For example: Section 2; sub-section
(2) allows any Minister of the Crown to make regulations regarding
the extent and manner of the Category 1 Responders' duties to
assess, plan and advise with regard to the threats described in
Section 1. Similar comments apply to Section 3; sub-section (1)
in respect of ministerial guidance, Section 5 in respect of ministerial
orders and Section 6; sub-section (1) in relation to disclosure
Given the wide-range of Category 2 responders
and the complex nature of their statutory and regulatory environments
UU is concerned that these Sections place inadequate emphasis
on consultation prior to a Minister making such regulation, guidance
or order. This is particularly so where these regulations may
extend beyond normal departmental responsibilities. Imperfect
crafting of such regulations or guidance and/or their inappropriate
application by Category 1 responders could result in an increase
in cost and bureaucratic effort by Category 2 Responders to no
good effect. Adequate time for consultation of the appropriate
bodies is vital to ensure efficient and effective regulations,
guidance and orders are produced.
UU is concerned that Section (2); sub-section
(3)(h) may result in regulations requiring a Category 2 responder
to provide information of a sensitive nature from a data-protection,
commercial or security perspective. The Consultation Document's
comments (Chapter 3; Para 26) on safeguards are noted but will
have no legal standing. Section 2; Sub-section (3)(j) addresses
the detail to be contained in plans. Section 6 limits the scope
of requests for information to the emergency. Section 10 enlarges
on provision of information. Otherwise the draft Bill appears
silent on this matter. This requires to be addressed.
UU supports the concept of more efficient and
effective sharing of information to permit Category 1 Responders
to assess threats, plan appropriate responses and advise stakeholders
appropriately. Where a threat's impact is so significant as to
cause public alarm then the manner of promoting such awareness
and the degree of information provided should be considered as
part of a national risk management policy. The extent of awareness
amongst Category 1 and 2 responders and the public should be sufficient
to appreciate the threat without providing advantage to those
bent on harm.
UU is concerned that the range of bodies capable
of bringing proceedings in the High Court in respect of a Category
1 or Category 2 responder is too extensive. In particular, most
utilities will interface with large numbers of Category 1 responders,
who are likely to hold divergent views on the need for information
or specific actions. In determining policy a utility is unlikely
to satisfy all such views. This could result in an increased incidence
of reasoned or vexatious enforcement action being taken against
the utility. It is recommended such enforcement powers be restricted
to Ministers of the Crown only.
DurationResponders' protection upon lapse
of emergency powers
Section 23 addresses the duration of the emergency
powers proclaimed under Section 18 or ordered under Section 19.
These powers have a life of 30 days before lapsing or requiring
renewal, Category 2 responders may have been required under such
powers to take actions that are contrary to normal regulations
and good practice. This could result in operational commitments
(for example: installation of utility assets) that it is physically
impossible to de-commission rapidly should the emergency powers
not be renewed. It is not clear what legal protection exists for
Category 2 responders in such circumstances, against the resumption
of normal statues, regulations and standards.
5. 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
Yes. But every effort should be made by all
concerned to integrate the existing, voluntary multi-agency working
arrangements into the new Local Resilience Forums (LRF).
It would be self-defeating if the current arrangements
were perpetuated in parallel with the LRF. It is also impractical
to consider liaison at a lower level than the LRF with currently
available resources. Establishment of the LRF around police force
areas is sensible and consistent with both the current planning
and response structures. Because of the inevitable inconsistencies
in geographical boundaries and organisational inter-relationships
UU supports proposals to contain Category 2 Responders' representation
at LRF by joint representation of sector interests. However, such
arrangements should not preclude an individual Category 2 Responder
from attending if it feels its interests require it. Category
2 Responders should also be able to call meetings of the LRF,
at short notice if necessary, even if another Category 2 Responder
normally represents them there.
6. Do you agree that the Regulatory Impact
Assessment accurately reflects the costs and benefits of the Bill
proposals? If not, how should it be changed?
No, although the order of cost appears broadly
The costs quoted below are derived from our
experience as a large multi-utility that takes its emergency planning
responsibilities seriously. For example, in north-west England
this interaction with prospective Category 1 and 2 responders
on water and electricity issues across six police force areas
requires about 40% of the time of a team of five. This equates
to about £7k/sector/police force area/year. This includes
correspondence, telephone liaison, attending meetings, training
and exercises and maintaining an extensive suite of third party
emergency plans. This is nearly double the amount quoted in the
Regulatory Impact Assessment, even before allowing for any uplift
in activity arising from the draft Bill's implementation. It is
difficult to predict what additional costs might arise following
the draft Bill's implementation but a further 25% increase in
initial activity is thought possible.
The cost implications for UU's telecom business
would depend upon any agreement on sector level liaison (see response
to Question 2).
7. 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?
8. 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.
Yes, when set against current public and regulatory
In UU's regulated electricity and water businesses,
allowance is made in their regulatory funding formulae for such
activities. The timing of the draft Bill is such that adequate
assessment of additional costs cannot be included in current price
review submissions to their respective regulators. The impact
of the draft Bill has been included in Chapter B1 of our Draft
Water Business Plan submission. This seeks to treat the implementation
of the draft Bill as a "relevant change of circumstance"
in the post 2005 environment. A similar approach is likely in
our submission to the electricity regulator. Where these services
are provided to other licence holders a similar approach will
be proposed in terms of cost recovery.
An alternative route for cost recovery would
be via a grant under Section 152 of the Water Industry Act 1991
in the event of direction by the Secretary of State under Section
208 of that Act. It is not envisaged that Defra grant aid for
the protection of vital installations would be used to support
the requirements arising from the draft Bill's contents.
Condition 5 of the Telecommunications General
Conditions of Entitlement under the Communications Act 2003 does
not appear to address cost recovery in circumstances such as the
draft Bill is designed for.
It is recommended that the guidance envisaged
under Section 3; sub-section (1) addresses the circumstances under
which Force Majeure might be claimed. Entitlement to compensation
may turn on such a definition.
9. Do you agree that performance should be
audited through existing mechanisms? If not, what mechanism would
you like to see established?
But the consultation document appears to be
in error when it describes (Chapter 3; Para. 37 and 38) performance
management occurring via the "use of existing mechanisms"
. . . "through bodies like . . . the utility regulators".
The normal auditing regime is via the respective
Government sponsoring department (Defra for water and DTI for
electricity). There are no formal auditing arrangements for telecom
A NEW REGIONAL
10. 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?
But the consultation document is unclear at
which stage the Regional Nominated Co-ordinator (RNC) is appointed.
Chapter 4, Para.13 refers to Level 2 meetings of the Regional
Civil Contingencies Committee being chaired by the RNC. But Para.
19 indicates the RNC would not be appointed unless special legislative
measures were to be taken (that is, at Level 3).
It is recommended these individuals be selected
primarily on the basis of their leadership skills rather than
their specific expertise. However, it would be advantageous if
such individuals could be identified in advance to permit their
gaining some organisational familiarity with Category 2 Responders.
This would reduce the likelihood of their subsequently placing
illogical or impractical demands upon the responders.
11. Do you agree with the principle of applying
special legislative measures on a regional basis? Please explain
But the regional approach should recognise the
inconsistencies arising between regional boundaries and those
of the Category 1 and 2 Responders.
12. 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.
But the effectiveness of existing emergency
preparedness should not be compromised by the Regional Nominated
Co-ordinator's lack of awareness of such measures when seeking
emergency regulations under Section 21.
The likelihood of compromising existing effective
preparedness measures would be reduced by having appropriate Category
2 Responder representation on the Regional Civil Contingencies
Committee (RCCC). Such organisations are not there of right. The
Consultation Document states (Chapter 4; Para 10) that "Other
organisations would be invited to attend depending on the nature
of the situation".
13. 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
to 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?
14. Do you agree that the use of special
legislative measures should be possible on a sub-UK basis? If
not, please explain.
Yes. Utilities' responsibilities are more effectively
controlled and influenced at a regional level, even though service
provision occurs locally. Experience with both the fuel distribution
crisis and the foot and mouth disease outbreak (47% of which occurred
in UU's area) was that central government was slow to recognise
the operational needs of the utilities for liaison at a regional
However, implementation of special legislative
measures should recognise the lack of co-incidence between regional
boundaries and those of the participating responders.
15. Do you agree that the 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?
16. 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 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?
17. 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.
18. 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?
It is noted that Part 1 of the draft Bill (Local
Arrangements for Civil Protection) does not apply to Scotland
and that the Scottish Executive will carry out a separate consultation
on these issues. It is further noted that Part 2: Section 26 requires
the Secretary of State to consult with Scottish Ministers before
making emergency regulations under Section 21 unless urgency causes
such a requirement to be disapplied.
19. 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?
But determination of emergency powers regulations
on a national and/or regional basis should reflect the needs of
responders whose areas span the border between England and Wales.
20. 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?
21. 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, to the extent that flexibility is required.
But it is thought unlikely that there will be
emergencies of a significantly different nature in the devolved
countries compared to England. The same comments on leadership
skills and familiarity with responders' capabilities and requirements
apply as in the response to question 10.
22. 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
But determination of special legislative measures
on a devolved administration basis should reflect the needs of
responders whose areas span the border between England and the
23. 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?
But it is recommended the divergence from the
national arrangements proposed should be justified on the basis
of need, not historical precedent.