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Draft Civil Contingencies Bill Draft Civil Contingencies Bill House of Lords House of Commons Joint Committee on the Draft Civil Contingencies Bill Draft Civil Contingencies Bill Session 2002–03 Report and evidence HL Paper 184 HC 1074 House of Lords House of Commons Joint Committee on the Draft Civil Contingencies Bill Draft Civil Contingencies Bill Session 2002–03 Report, together with formal minutes, oral and written evidence Ordered by the House of Commons to be printed 11 November 2003 Ordered by the House of Lords to be printed 11 November 2003 HL Paper 184 HC 1074 Published on 28 November 2003 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited £0.00 4 The Joint Committee on the draft Civil Contingencies Bill The Joint Committee on the draft Civil Contingencies Bill was appointed on 11 July “to consider and report on any draft civil contingencies Bill presented to both Houses by a Minister of the Crown” by the end of November 2003. Membership Dr Lewis Moonie MP (Labour, Kirkcaldy) (Chairman) Mr Richard Allan MP (Liberal Democrat, Sheffield Hallam) Mr Adrian Bailey MP (Labour, West Bromwich West) David Cairns MP (Labour, Greenock and Inverclyde) Mr James Clappison MP (Conservative, Hertsmere) Mr Kevan Jones MP (Labour, North Durham) Mr Elfyn Llwyd MP (Plaid Cymru, Meirionnydd Nant Conwy) Patrick Mercer MP (Conservative, Newark) Chris Mole MP (Labour, Ipswich) Kali Mountford MP (Labour, Colne Valley) David Wright MP (Labour, Telford) Rt Hon the Lord Archer of Sandwell, QC (Labour) Professor the Lord Bradshaw (Liberal Democrat) The Lord Brooke of Alverthorpe (Labour) The Lord Condon QPM DL (Cross-Bencher) The Lord Jordan, CBE (Labour) Rt Hon the Lord King of Bridgwater CH (Conservative) The Lord Lucas of Crudwell and Dingwall (Conservative) The Lord Maginnis of Drumglass (Cross-Bencher) The Baroness Ramsay of Cartvale (Labour) The Lord Roper (Liberal Democrat) The Earl of Shrewsbury (Conservative) Publication The Reports and evidence of the Committee are published by The Stationery Office by Order of the House of Lords and House of Commons. All publications of the Committee (including press notices) are on the Internet at http://www.parliament.uk/parliamentary_committees/jcdccb.cfm. Committee staff The staff of the Committee was Ian Mackley (Lords Clerk), Andrew Kennon (Commons Clerk), Jennifer Smookler (Committee Specialist), Glenn McKee (Estimates Specialist) and Claire Little (Secretary). The Joint Committee was assisted by staff from the Scrutiny Unit in the House of Commons. Contacts All correspondence should be addressed to the Clerk of the Committee, House of Lords, Millbank House, London SW1A 0PW. The telephone number for general enquiries is 020 7219 4911; the Joint Committee’s email address is [email protected] 1 Contents Report Page 1 Introduction and Summary 5 The Purpose of the Bill 5 Definitions of Emergency 7 Category 1 and 2 Responders 7 Human Rights 8 Constitutional Issues 8 Funding 8 Audit and Management 9 The Regional Tier 9 2 Definitions of Emergency 11 Background 11 Use of same definition in both Parts 12 Breadth of definition 12 “Triple lock” 13 Emergency as the ‘threat to human welfare’ 15 Political, administrative or economic stability 16 Educational Services 17 Issues of ambiguity 17 Seriousness of “a threat” 17 Meaning of “serious” 18 Meaning of “stability” 19 Open-ended definition 19 Overlapping Responsibilities 20 Public functions 21 Threat to environment 22 3 Category 1 and 2 Responders 23 Background 23 Local flexibility 23 Central and regional tiers 24 Local government arrangements 27 Fire and Civil Defence Authorities (FCDAs) 28 NHS 28 Utilities 30 Voluntary sector 32 Nuclear and chemical sites 34 Private sector industries 34 4 Human Rights Issues 36 Background constitutional principles 36 Relevant provisions of the Bill to be examined 36 Treating secondary legislation as an Act of Parliament 38 2 Protections for human rights currently mentioned within the Bill 41 Protections for non-derogable human rights not currently mentioned in the Bill 43 Protections for other derogable human rights not currently mentioned in the Bill 44 Derogation and the Bill 45 Interference with property rights without compensation 45 Creation of criminal offences 46 5 Constitutional Matters 47 Possible constitutional issues 47 Power to amend all Acts of Parliament 48 Parliamentary approval of declaration of emergency 50 Regulations under Part 1 50 Publication of emergency regulations 51 Effects of making regulations which have the legal status of Acts of Parliament 52 Expiry and renewal 52 The exclusion of the Crown under clause 19 53 6 Resource Implications 55 Background 55 Local contingency planning: costs to business, voluntary organisations and charities 55 Local contingency planning: costs to local authorities 57 Local contingency planning: grant funding arrangements 59 Business continuity management 61 Emergency powers 61 Bellwin scheme 62 7 Audit and Management 63 Audit 63 Crisis Management 64 Lead Government Department 64 An Advisory Agency 65 8 The Regional Tier 67 Background 67 The Bill’s Provisions 67 Other Concerns 68 9 Summary of Recommendations 70 Definition of Emergency 70 Category 1 and 2 Responders 72 Human Rights Issues 73 Constitutional Matters 74 Resource Implications 75 Audit and Management 76 The Regional Tier 76 Appendix 1: Memorandum from the House of Lords Select Committee on the Constitution 77 3 Appendix 2: Memorandum from the House of Commons Transport Committee 80 Appendix 3: Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform 81 Appendix 4: Note by Dr James Broderick, Specialist Adviser to the Committee 84 Appendix 5: Note by Professor Clive Walker, Specialist Adviser to the Committee 93 Appendix 6: Note by Professor Clive Walker, Specialist Adviser to the Committee – The Resilience of the Crown 104 Appendix 7: Note by Mr Garth Whitty, Specialist Adviser to the Committee 106 Appendix 8: Note by Mr Garth Whitty, Specialist Adviser to the Committee – Military Support 111 Appendix 9: Questions for the Bill Team 112 Appendix 10: Note by Jennifer Smookler, Committee Specialist - Summary of Responses from Category 1 and 2 Responders 153 Appendix 11: Summary of Amendments Suggested by Respondents to the Government’s Consultation Exercise 161 Appendix 12: Note by Christopher Barclay, House of Commons Library – Legal Challenges to Emergency Powers 192 Formal Minutes 194 Witnesses 202 List of written evidence 204 5 1 Introduction and Summary 1. We were appointed on 11 July “to consider and report on any draft civil contingencies Bill presented to both Houses by a Minister of the Crown” and to do so by the end of November 2003. The nature of the Parliamentary calendar, however, is such that only 11 of those 21 weeks were available for deliberation and the taking of evidence. This report therefore only covers the main issues that appear to us to be of major concern, making generalised recommendations on the substance of the Bill and how it might be improved. It contains only a few detailed proposed drafting changes. We should also record that the draft of the regulations to be issued under Part 1 of the Bill, which will identify the nature and extent of the duties to be imposed, were not available to us. We were therefore unable to consider their potential consequences on those that they may affect. 2. The Government has been engaged in wide-ranging consultation, since before the events of 11 September 2001, on the desirability of improving the UK’s resilience to disruptive challenge and the need to update the Emergency Powers Act 1920 and Civil Defence Act 1948. Those recent events however, led to a reappraisal of the range of concerns to be considered, and it was not until June 2003 that the draft Bill was published1 with explanatory notes, regulatory impact assessments, and a consultation document. 3. Given the limited time available to us, we decided not to issue a call for evidence but to rely instead on the responses to the Government’s own Consultation Document, which went to a wide range of representative organisations. We did however seek written comments on some specific issues from academic lawyers and representative organisations that are closely involved in contingency planning, and took oral evidence from a limited number of witnesses. We appointed as specialist advisers Dr James Broderick, Professor Clive Walker and Mr Garth Whitty and are most grateful to them for their advice and expertise, which have greatly assisted this inquiry. We were also guided in our deliberations by some valuable comments from the House of Commons Defence Committee2, the Joint Committee on Human Rights3, the House of Lords Select Committee on the Constitution4, the House of Commons Transport Committee5 and the House of Lords Delegated Powers and Regulatory Reform Committee.6 We were not however, able to take account of the House of Commons Science and Technology Committee’s Report on “The Scientific Response to Terrorism”7, which was published on 6 November, after we had completed our deliberations. The Purpose of the Bill 4. The draft Bill is “enabling” legislation, seeking (a) to create a statutory duty on the part of local bodies to develop contingency plans for dealing with a range of emergencies, and 1 Cm 5843. 2 Seventh Report of Session 2002-03 HC 557. 3 Fifteenth Report 2002-03 HC 1005 HL Paper 149 14 July 2003. 4 Memorandum from the House of Lords Select Committee on the Constitution, Appendix 1. 5 Memorandum from the House of Commons Transport Committee, Appendix 2. 6 Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform, Appendix 3. 7 HC 415-I. 6 (b) to provide powers for the Government to make regulations to deal with proclaimed emergencies. It is in three parts and contains two schedules: • Part 1 (clauses 1 to 16) would apply only in England and Wales and sets out local arrangements for civil protection.
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