Civil Contingencies Bill

Part of the debate – in the House of Lords at 7:45 pm on 5th July 2004.

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Photo of Baroness Buscombe Baroness Buscombe Shadow Minister, Home, Constitutional & Legal Affairs 7:45 pm, 5th July 2004

My Lords, I join my noble friend Lord Jopling in saying that it is ludicrous that we are here at this late hour, responding to the Second Reading of this crucially important Bill. Indeed, it is disgraceful. On a more positive note, I congratulate the two maiden speakers—the noble Lords, Lord Rosser and Lord Tunnicliffe. All noble Lords look forward to hearing much more from them.

The need to revise current civil contingencies legislation cannot be disputed. The existing statutory basis is ill-equipped to deal with the requirements of a modern social emergency. That said, many issues raised by the Bill will require substantive consideration during its passage through your Lordships' House. A draft Bill was published in June 2003. The Bill was subsequently allocated no more than the "standard minimum period of consultation" for scrutiny by the Defence Select Committee. While the core principles contained in this legislation were broadly welcomed by the committee, the Government faced considerable criticism on a number of issues, including the largely enabling nature of the draft Bill and its reliance on secondary legislation for implementation.

An additional and important concern expressed by the committee was the length of time taken by the Government to bring forward new emergency powers legislation. The emergency planning review was completed in February 2002, yet the legislation was not actually brought forward until a year and four months later. I echo those concerns. The Bill has been repeatedly delayed prior to reaching your Lordships' House. On 19 January the Bill received its Second Reading in another place, completing its passage through Standing Committee by 10 February, while Report stage was delayed until 24 May. Could the Minister explain why, during the passage of the Anti-Terrorism, Crime and Security Act 2001, the usual parliamentary timings were suspended to allow the expedient progress of that Bill through Parliament, yet the progress of this Bill has been impeded repeatedly?

Moreover, the period of time allocated for parliamentary scrutiny of the Bill has been entirely inadequate considering its constitutionally significant provisions. To date, the Government have failed to consider six new clauses, one new schedule and 87 amendments. Why do the Government continue to treat the Bill as such a low priority? Here we are, debating the Bill at eleven o'clock.

The Bill is divided into two substantive parts. Part 1 contains the local arrangements for civil protection and identifies the persons and bodies that will be subject to any relevant duty imposed by virtue of Schedule 1. Most notably, Clause 1 defines what is meant by "emergency" for local purposes and it is broadly defined. I shall return to that issue shortly. The bodies classified as "Category 1 Responders" are identified by Schedule 1 and include local authorities and emergency services. The Bill also includes a mechanism to impose duties on other local bodies to assist category 1 responders in the event of an emergency.

I believe that the failure to include the voluntary sector on the face of the Bill is a particularly significant omission—almost all noble Lords have made a similar point. The contribution of the Red Cross, the WRVS, the Salvation Army and the St John Ambulance in the event of an emergency cannot be overlooked or underestimated.

The Joint Committee report on the draft Bill recommended that,

"a statutory duty be placed on Category 1 Responders to consult with and involve relevant voluntary organisations in civil contingency planning", and that,

"Category 1 Responders be given flexibility to identify and consult with the most relevant [voluntary] organisations in their area".

The Government will no doubt tell us that the involvement of the voluntary sector will be dealt with in guidance notes. That simply is not good enough. We are talking of an amazingly powerful force for good; many thousands of highly skilled, experienced and dedicated men and women ready for large-scale emergencies who should, we believe, be recognised on the face of the Bill. Indeed at present there are approximately 40,000 Red Cross volunteers in the UK; 23,000 St. John Ambulance in England alone; and a further 12,000 WRVS dedicated to emergency response, with a further 95,000 who can be called upon to assist in major incidents. Without the voluntary sector the Bill has no chance of working. It is a non-starter.

Fortunately there is already precedent, to which noble Lords have referred this evening, in the Homelessness Act for voluntary organisations to be identified in primary legislation, so we shall seek to amend the Bill in a similar way. I also believe the Government should heed the words of the right reverend Prelate the Bishop of Coventry that voluntary organisations carry out services in a very professional way, but that they go further in responding to the emotional and spiritual needs of those caught up in disasters. That was a truly important point to make.

I now return to the main provisions of the Bill. Part 2 repeals the existing emergency powers legislation and confers a new power to make regulations in the case of an emergency or an impending emergency. Part 2 contains the so-called "triple-lock" mechanism to safeguard the exercise of emergency powers by the Government. But I do not believe that this measure alone will provide the necessary safeguards to balance the vaguely defined and inconsistent term "emergency".

The definition offered in Part 2 is expansive and includes,

"an event or situation which threatens serious damage to . . . human welfare in the United Kingdom or in a Part or region . . . [or to] the environment . . . or . . . security of the United Kingdom or a Part or region".

Although the Government's move to define the term "emergency" more narrowly should be welcomed, there is still reason for concern. It appears that the emergency could be activated in relatively innocuous circumstances, a point raised by my noble friend Lord Kimball. I agree with Liberty on this point: the serious damage need only be threatened for the definition of an emergency to be satisfied. Thus the decision will be a subjective rather than evidence-based one.

This policy of subjectivity is again illustrated by the terminology in Clause 7, where the provision will apply only where the Minister "thinks" there is an urgent need to make a provision, or "thinks" that there is insufficient time for the regulations or an order to be made. This criterion of subjectivity is inappropriate, and we believe that an objective threshold is necessary.

Due to the immediate nature of powers conferred by the Bill, little time will be available for parliamentary scrutiny of any regulations or orders made. The powers employed by the Queen or a Minister in an emergency are extensive and must be more clearly defined. This is noticeably illustrated by the scope of the emergency regulation provisions defined in Clause 22. As currently drafted, the Government have asked for more power from Parliament than any other government in modern history. It cannot be denied that the Government consider these powers to be necessary. However, we on these Benches are also aware that in giving the Government such draconian powers, the rights of the individual may be considerably compromised, in which case we believe it is important to amend the Bill to allow any such decisions to be judicially reviewable.

I am not sure how the Government will respond to such an amendment, given their capricious treatment of the judicial review provisions in the Asylum and Immigration (Treatment of Claimants, etc.) Bill. Moreover, the fourth report in this Session of the Joint Committee on Human Rights recommended that express protection be afforded to Acts of Parliament containing substantive human rights and constitutional provisions. Clause 22(3)(j) permits the disapplication or modification of,

"an enactment . . . or a provision made under or by virtue of an enactment".

The enactment of such a provision has serious legal implications.

The Government have conceded that the Civil Contingencies Bill will not be subject to the disapplication provision and that it would be inappropriate for the Bill to be amended by regulations. But I question the failure of the Government to extend this prohibition to the Human Rights Act, and I urge the Minister to reconsider its application. Indeed, Article 15 of the European Convention on Human Rights allows a nation to derogate from particular convention obligations where a state of war or public emergency threatening the life of a nation has been declared. Therefore, I urge the Government to include the Human Rights Act in this prohibition, and we shall table amendments in Committee to address that omission.

We shall also seek to amend the provision that states that emergency regulations may not prohibit or enable the prohibition of participation in any activity in connection with a strike or industrial action. I find it extraordinary that this legislation effectively allows the government of the day significantly to compromise the rights of an individual but not those of a trade union.

Let us take last Wednesday as an example. The streets of London were in chaos as a result of strike action by the RMT. If there had been a terrorist attack and this legislation had been implemented, members of the RMT could have sat on their hands and continued with their industrial action. How can that be right? The recent events of 21 June provide a further example. The London Fire Brigades Union chose to hold industrial action on grounds of "health and safety". The resultant consequence was that only two out of 10 of the immediate response units remained active. Why, therefore, does the Bill protect the right to industrial action but not an individual's basic liberties?

Our aim throughout the Bill is to focus on not only the theoretical but also the practical effect that the Bill will have. It must be workable in practice and provide an effective framework for response in a civil emergency. To illustrate the case in point, I telephoned the Civil Contingencies Secretariat on 24 June to obtain information on emergency procedures. I called three different people, from two of whom there was no reply and the third response was a voice-mail informing me that they were out of the office. Is that really an effective response to our need for a cohesive emergency reaction strategy?

That said, initiatives such as Project Unicorn should be welcomed. The remit of Project Unicorn—a privately funded, independent research project funded by donations from the business community—was to assess the effectiveness of communication between the police and the public sector in the event of a terrorist attack. The report, delivered in December 2003, has been well received and has, to date, been part-implemented. An example is the private security briefings that the police now regularly undertake. Although not a formal training exercise, officers are engaged to address private security firms on aspects of terrorism awareness. Recent events clearly demonstrate the need for an effective public information and training campaign. It is crucial that the public know how they should react in the event of an emergency—a point made very eloquently by my noble friends Lord Jopling and Lord Lucas and the noble Lord, Lord Garden.

Members of the House of Commons recently illustrated how dangerous having little or no knowledge can be in an emergency. Members of Parliament are in an extremely privileged position, surrounded by the machinery of government to provide information when needed. Yet they were still unsure how best to react when the powder was thrown from the Gallery. Indeed, I think that they all got it wrong. Moreover, they reacted in a way that was detrimental to both their own safety and that of everyone in both Houses of Parliament. That really is unacceptable and proof that no one seems to know how to react.

An additional area of ambiguity is the role of the Civil Contingencies Reaction Force. At present, approximately 30 per cent of the total force is stationed elsewhere in the world. Surely the force's function is to protect Birmingham and Blackpool and not Basra and Baghdad. I also hope that the Government will respond to the concerns raised by my noble friend Lord Kimball with regard to the part that the Territorial Army should play in response to a disaster.

I turn to the local government provisions. It is clear that with this Bill the Government are imposing statutory obligations, particularly on local authorities and emergency services, while being unwilling to see any imposed on themselves. The Government stance on this omission is that:

"No reference to the role of central government is needed within the Bill for the government to engage in the full range of civil protection duties".

It is however noteworthy that the revised communication and liaison methods introduced following the fuel crisis have never been tested by exercises and only very recently has Defra engaged with local government in discussion of revised arrangements for handling a recurrence of foot and mouth. Yet on closer examination of the Bill, it appears that the Government are guilty of contradicting their own stated position. Paragraph 12 in Part 1 of Schedule 1 gives category 1 duties to

"The Secretary of State, in so far as his functions include responding to maritime and coastal emergencies".

Further on, paragraph 28 in Part 3 of Schedule 1 gives the Secretary of State category 2 duties

"in so far as his functions relate to matters for which he is responsible by virtue of section 1 of the Highways Act 1980".

If the Secretary of State, and by inference his department, can have duties imposed in these specific areas, then why not in general?

To compound this weakness, there are a number of striking omissions from the Bill. These include broadcasters and bus and coach companies—a vital component of most evacuation plans. Neither the food distribution and sales industry nor the petrol and diesel distribution industry are included. The national chemical and radiological hazard identification and response schemes are missing.

In addition, in any specific locality there are likely to be particular organisations whose co-operation may be vital to comprehensive planning, such as the operators of major shopping, leisure and sporting complexes—again, these are missing. I cannot help but feel that it would have been better to have built upon the existing community safety legislation, which enables the local authority to require the co-operation of any organisation which it considers has a role to play. The Government's objection to such a solution is that it seeks uniformity. However, this does not stand up in the face of the flexibility that they appear to be extending in respect of other aspects of the Bill and their insistence, for example, that risk assessments are performed locally to suit local conditions.

Even with this Bill it is still not clear that the Government's response to a disaster would not be as confused and unco-ordinated as it was during the flooding and fuel crisis of 2000 and the foot and mouth crisis of 2001. Any Government contribution to the response to an emergency must be well co-ordinated with clear leadership and well tested plans.

Although the Bill would go some way to clarify what responders are required to do, the UK's resilience will still be highly dependent on the co-operation, determination and flexibility of all agencies to work together, using the resources they have for their day-to-day tasks. These agencies are already working at full capacity, and barely have enough resources to do these tasks. Indeed, unlike the Civil Defence Act 1948, neither the Bill nor the draft regulations make any explicit commitment to the funding of these new functions within local authorities.

Funding is a key issue, a point raised by almost all noble Lords. Without adequate funding the intent and duties of the Bill will become meaningless. A survey conducted by the Local Government Association of its members in 2003 established that the emergency planning service was already severely underfunded. The Government's current funding level, ring-fenced through the civil defence grant and totalling just over £19 million per annum, is woefully inadequate to meet existing responsibilities. The grant to the emergency services for emergency planning has been cut completely and in real terms the grant to local authorities has been cut by 50 per cent in real terms since 1983.

It is estimated that an additional £92 million—the source is the LGA—would be required to meet the additional duties contained in the Bill. With little investment from the Government it is difficult to see how significant improvements can be made. Unlike the emergency services, local authorities have received no extra funding to undertake additional anti-terrorism work expected of them by Government as a result of 9/11.

Furthermore, it is crucial that a robust mechanism is put in place to ensure that funding made available is actually spent on the function and is not diverted to other services. Can the Minister, therefore, give a firm pledge tonight that the costs of the new responsibilities contained within the Bill will be fully met?

I would also like to touch on the very real concern within local government about the ongoing introduction of a regional tier of emergency planning without a proper statutory basis. The lack of clarity regarding respective roles and responsibilities between the regional and local levels creates the possibility of an increase in centralisation and direction, moving responsibility towards the Government Offices for the Regions and away from local responders. I must report that there are already examples of unwarranted interference by the regional tier in dealing with emergencies that should be dealt with at the local level.

It is also clear that the appointment of regional nominated co-ordinators risks repeating the problems caused by the adoption of lead government departments. What assurance can the Minister provide that the creation of what many professionals who are experienced in emergency planning believe will simply be an unwelcome regional bureaucratic tier?

The Bill will place on all category 1 responders a duty to warn and to inform the public. However, the National Council for Civil Protection, alongside the entire professional emergency planning community are clear that the primary responsibility for providing a clear programme of education, consistent across the nation, on what the general public can expect during an emergency and what is expected of them, rests with central government.

As the NCCP has suggested that central government should implement a 21st century warning system to alert the general public to actual emergencies, I would welcome the Minister's thoughts on this important issue.

In conclusion, the hour is very late, but I urge Ministers to consider and to heed the words particularly of my noble friends Lord Jopling, Lord Lucas and Lord Kimball and to consider what would happen in the event of an emergency. What would this Bill allow and enable all those outside who are able to take part to do? We can all look forward to some very lively debate in the remaining stages of the Bill.