Justice 1 Committee, 25 Feb 2004

Meeting date: Wednesday, February 25, 2004

Official Report 223KB pdf

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Civil Contingencies Bill (UK Legislation)

Good morning. I welcome everyone to the eighth meeting this year of the Justice 1 Committee. I have received no apologies; we have full attendance this morning. If members do the usual and turn off their mobile phones, that will be helpful.

Our first item this morning is consideration of the Civil Contingencies Bill, which is a UK bill, and I refer members to a paper that provides some background to it. I welcome to the meeting Hugh Henry, the Deputy Minister for Justice; Max Maxwell from the police and civil contingencies division of the Justice Department; and Robert Marshall, who is from the office of the solicitor to the Scottish Executive. I see that the minister has also brought along some other officials, whom I welcome to the meeting.

Minister, I believe that you will make an opening statement.

Thank you, convener.

Although planning for emergencies is something that often goes unnoticed, we rely on such work when an incident happens. Indeed, such planning can take place over a range of issues and there has been a long history of co-operation among local authorities and others in planning for and responding to incidents.

However, because of recent history, we have had to reflect on the robustness of our arrangements and to ask ourselves whether we are sufficiently prepared for the type of events that could happen. Although some thinking about and discussions on the matter had taken place before the events of 11 September 2001, that work has clearly been brought into much sharper focus by what happened on that day.

The Scottish Executive and the UK Government were concerned that the statutory framework for civil protection, which originated in the 1920s, had not been significantly revised since the start of the cold war and did not properly reflect the world in which we now live. As a result, we undertook a consultation exercise, which confirmed that there were good working relationships at local level. However, local responders indicated that there was significant support for extending the draft Civil Contingencies Bill's provisions to put civil contingencies work on a modern statutory footing in Scotland. Consultees thought that doing so would improve the situation for responders, who would be given greater clarity of purpose, and for the public, who would thereby be able to have confidence in local civil protection standards wherever they live in the UK.

After reflecting on the results of that consultation, we concluded that there should be a common civil protection framework across the United Kingdom. After all, many of the threats that we face do not respect national boundaries. We want to ensure that Scotland has the same standards of civil protection that are available in the rest of the UK and vice versa. As a result, we agreed with UK ministers that, subject to the approval of both Parliaments, part 1 of the Civil Contingencies Bill, which covers a number of devolved issues, should apply to Scotland.

Although there are clear benefits in working together with other parts of the UK and in having a common framework, I must emphasise that, in an emergency, devolved responders would remain accountable to the Scottish ministers and the Scottish Parliament. That is why the bill would confer powers on the Scottish ministers to regulate the activities of Scottish emergency responders. As I have said, we intend to establish a common framework throughout the UK; however, the detail of how responders prepare for and respond to emergencies in Scotland should fit our specific circumstances.

Not all the bodies that respond to emergencies carry out devolved functions. Some bodies such as the Maritime and Coastguard Agency normally report to UK ministers; regulations for such reserved bodies will be made at Westminster. However, the Scottish ministers will be consulted on the content of any regulations to ensure that the work of those bodies in Scotland is taken into account.

Although we realise that the arrangements might sound complex, we are trying to achieve a satisfactory balance between retaining the powers that we should exercise and meeting the need for a consistent approach across the UK in dealing with very unusual and specific circumstances. We want to develop regulations that are right for Scotland's emergency community. However, that cannot be achieved quickly. We want to work with responders to produce a draft that takes account of their priorities.

We will also continue to work closely with our colleagues in Whitehall to ensure that the relationship between the different sets of regulations is as close as possible. That also takes time. We intend to publish draft regulations this summer and to consult on them before they are submitted for Parliament's approval. We also intend to ensure that the bill's proposals are as resource neutral as possible, which means that they should not impose significant cost burdens on those who are required to respond.

We believe that this is an opportunity to provide a reformed and modern statutory basis for emergency planning in Scotland, and the emergency planning community in Scotland has widely and warmly welcomed it. I hope that we can agree that the best way of moving forward is to work in partnership with our UK colleagues on a national framework and a consistent approach, but to have responsibility vested in the Scottish ministers where appropriate.

Thank you.

What will category 1 and category 2 responders be expected to do to meet the bill's requirements?

They will need to be able to demonstrate that they have considered sufficiently any planning requirements, and that they are sufficiently prepared to respond quickly to an emergency. Local authorities, for example, will identify individuals who will be responsible for emergency co-operation. Each organisation will have to demonstrate that it is properly planning for emergencies and that it has carried out a proper assessment of the type of risk to which it might be appropriate to respond and what that response might be in relation to the organisation's impact on the community.

Organisations will have to consider, in the context of each of their functions, how to advise the public in an emergency, both on how to cope in relation to the services that the organisation provides and on what action the organisation will take. In essence, organisations will be required to plan, assess risk and consider how to give adequate advice.

Will there be inspections to ascertain whether organisations have met the requirements? Would the Scottish Executive have responsibility for ensuring that they had done so?

Yes. There is an emergency planning forum in Scotland, which has regular meetings and receives regular reports. Organisations are required to co-operate with and to participate in that process and we will also lay regulations that will specify the standards that we expect to be met and the audit requirements that you suggest would be needed to ensure that organisations carried out the required work.

Does that mean that there will be an inspection whereby a body goes in to an organisation to check that it adheres to the specified standards?

The bill indicates that, where there is a need to enforce compliance with the requirements, proceedings could be brought in the Court of Session by the Scottish ministers or persons or bodies that are specified in parts 2 and 4 of schedule 1, which lists the Scottish responders.

You mentioned that it was desirable to establish a common framework throughout the UK in the interests of continuity, but you also said that the detail of that would be the responsibility of the Scottish Parliament. Given that emergency planning is a devolved matter, why did you not introduce a Scottish bill to deal with the subject matter in part 1 of the bill?

We reflected on that and consulted the emergency planning community in Scotland. The feeling—and the conclusion that we reached—was that because a national emergency could well involve other reserved areas of responsibility, it would be best to introduce a consistent framework throughout the UK, so that there would be a consistent approach to, for example, matters that related to the armed forces, immigration, or customs and excise.

We have also ensured that if there is a UK approach, responsibility would be devolved to the Scottish ministers to carry out any functions that would be determined under the legislation. We believe that it is better to have interaction and access to those powers that are not specifically Scottish, where they are required. It is important that there is consistency not just in the expectations that people have of what should happen throughout the United Kingdom, but in the standards. If we had an outbreak of severe acute respiratory syndrome—SARS—a medical response would be required, but so might restrictions on individuals' movement. In that case, it would be ludicrous if one set of powers were available in Berwick and Newcastle and another set of powers were available and different standards applied in Dumfries and Edinburgh.

The emergency powers that we are talking about would be contemplated only where all other powers were regarded as inadequate or had been tried and had failed. In other words, we would also test the competences that are available to us to deal with a particular set of situations. We will consider using the powers in an emergency only in situations in which there are insufficient powers available to us at present.

I see. So continuity and consistency are the overriding factors. Ministers will be able to comment on the detail if the powers are deemed necessary.

Yes. If emergency powers are brought in for a Scottish situation, the power for enforcement and delivery will be passed to the Scottish ministers, who will be accountable to Parliament, obviously.

That is helpful. Thank you.

I want clarification on a point. Surely it would be entirely logical and reasonable that if a Scottish bill were introduced to deal with part 1 there would still be cross-border co-operation. Part 1 seems to set up category 1 and category 2 responders. Category 1 organisations, as listed in part 2 of schedule 1, include local authorities, the police, the fire service and the Scottish Ambulance Service—all Scottish organisations. I am not quite sure why the minister referred in his previous answer to organisations that are quite clearly UK organisations, such as the Army. Are you saying that if a Scottish bill were introduced it would not be possible to have cross-border co-operation where appropriate while also having powers that are appropriate to Scottish category 1 responders as listed?

We might well have cross-border co-operation, but we would not necessarily have cross-border authority in relation to some of the agencies. By definition, an emergency is something unusual and is out of the normal course of events, so we are talking about something extreme that is beyond our normal consideration and sphere of operation. In those circumstances, although we could have our own planning and delivery of legislation in relation to local authorities and the police, there might be issues to do with movement of livestock, individuals or materials that might not affect other parts of the UK initially but would have to be enforced on a UK basis. We would have to consider links with other agencies. We would also need to reflect on whether we were trying to enforce provisions within different legislative competences; the legislative competences might not be consistent. Although we might want to create a desired effect in relation to a specific problem, which we had taken the powers to deal with, if we did not have the power to influence the United Kingdom Government immediately, or if it did not have the powers available to it because it had developed a different legislative framework, we might create anomalies in dealing with emergencies. A separate Scottish bill would cause difficulties in ensuring consistency of regulations and response.

Sometimes when emergencies happen, we do not have the benefit of a long time to consider what we have to do—we have to respond quickly. A coherent framework throughout the United Kingdom will mean that we will, in the event of an emergency, be able to act quickly and ensure that there are no unforeseen loopholes caused by legislation's being different in the north of England and the south of Scotland.

I note that paragraph 6 of the minister's memo states:

"emergency responder organisations largely welcomed statutory duties as opposed to permissive powers".

Will you explain that for me? Does that mean that some organisations did not welcome the bill, or does it mean that reservations were expressed by some of the organisations about such a shift?

I am advised that all organisations supported the approach that we are taking, but different organisations put different emphases on various smaller parts of the overall picture, which did not mean that they were opposed to dealing with the issue in the way that we are suggesting. For example, there might have been different shades of emphasis within the police and local authorities, but there was nothing that would have caused any of those organisations to believe that our approach is not the right approach.

So there were different levels of welcome.

Yes.

Thank you for that.

I refer to clause 21 in part 2 of the bill, which would allow—through emergency regulations—UK ministers to confer functions on bodies, including on the Scottish ministers. How will that type of regulation apply to the Scottish ministers and in what circumstances do you think such regulations would apply?

Apart from regulations, we will also develop a protocol on how we will plan and operate in emergency circumstances. There will be consultation with the Scottish ministers who will have the right to ask for specific emergency legislation if they believe that to be appropriate.

When a state of emergency is called in a specific incident, clause 21 will ensure that the Scottish ministers have the powers to carry out any task that is required to deal with that emergency. Clause 21(3) talks about conferring

"a function on a Minister of the Crown, on the Scottish Ministers, on the National Assembly for Wales, on a Northern Ireland department"

It would confer several powers that were not immediately available to the Scottish ministers.

I am trying to get a feel for the circumstances in which that might occur.

We are trying to anticipate the unforeseen and the unexpected. There could be issues in relation to bodies such as HM Coastguard or some of the maritime agencies. I would have thought that they might be involved in immigration issues. In an emergency situation, we would have to co-ordinate and be responsible for transportation of nuclear or chemical materials. The power to act and respond would be conferred on the Scottish ministers.

In your earlier answer, you mentioned a protocol. Is that protocol being drafted and will it be available to the public?

It will be dealt with in the same way as other issues of protocol. We are working on it, but we do not have the detail at the moment. It will be published before both Parliaments when it is agreed.

Clause 21(2) includes a list of 14 instances in which regulations could be made for the purpose of protecting and restoring certain functions. It says that regulations may be made for the purpose of

"protecting or restoring activities of Her Majesty's Government"

and

"protecting or restoring activities of … the Scottish Parliament",

the Northern Ireland Assembly and so on. The Scottish Executive is not mentioned—is it to be protected and restored?

We would be a function of the Scottish Parliament. The main thing is to ensure that there is continuity of government in a state of emergency and that people are able to take decisions in the face of an unexpected, extreme threat. You can take it from that that we are talking about ensuring that government activities, whether they are at UK level or at Scottish level, are properly protected. We believe that that gives sufficient protection to both areas.

I understand what you are saying, but the wording is quite specific. The bill says:

"protecting or restoring activities of Her Majesty's Government"—

that is, the Westminster Government. The only reference to the Scottish Parliament is in the next paragraph, which also deals with the Welsh Assembly and the Northern Ireland Assembly. If the Scottish Executive's functions and the Scottish Parliament's functions were stopped for any reason, the bill says that the first thing is to protect and restore Her Majesty's Government, which would take over throughout the UK on all matters. It would be for the UK Government to decide whether to restore the Scottish Parliament's functions.

In theory, it would be possible for the UK Government to take powers, in relation to the Scotland Act 1998, in the event of an emergency, but it has indicated that that is not its intention. If it intended to do so, that would be specified in the bill.

The Scotland Act 1998, which is the responsibility of Her Majesty's Government, specifies the responsibilities of the Scottish Executive and creates the ability to deliver a Scottish Parliament. In protecting Her Majesty's Government, we also protect the Scottish Parliament's ability to continue, because we are created as a function of a decision taken by Her Majesty's Government and by the UK Parliament.

But why does the bill not specify the Scottish Executive?

I do not think that the bill needs to specify the Scottish Executive, because our powers come to us from the Scotland Act 1998, and protecting Her Majesty's Government and its ability to protect the 1998 act and its functions give us that protection. The bill also protects the ability of the Scottish Parliament to continue with its functions if we need to take powers to do that.

I think that Michael Matheson has had a fair go on that point. If it is a particular concern, I remind members that it is up to the committee what it wants to put in the report.

Clause 28 says:

"Emergency regulations which relate wholly or partly to Scotland may not be made unless a senior Minister of the Crown has consulted the Scottish Ministers."

However, it also says that a senior minister of the Crown does not have to consult

"if he thinks it necessary by reason of urgency".

In practice, what form will consultation with the Scottish ministers take? What situations might lead to a senior minister of the Crown deciding to go ahead without consultation?

The protocol will cover the way in which the consultation would take place, the way in which powers would be conferred on the Scottish ministers and the way in which we would operate those powers. It is hard to anticipate situations in which consultation would not take place, but if there was a situation that neither you nor I could imagine, we believe that it would be better for that power to exist as a means of protecting life and limb and the well-being of the people whom we represent. In practice, we do not believe that such situations would normally happen.

In respect of clause 28, I would think that the urgency to act would have to be so extreme and the requirement to act would have to be so practical that immediate action would have to be taken. It is hard to imagine in what situations that might happen and it might be idle to speculate on such matters, but I would prefer there to be an ability to protect life and limb and well-being rather than that we overlook something that none of us could imagine and find that there is no power to act.

You said in your opening statement that the effects of the bill will be resource neutral.

Yes.

You also said that bodies would be risk assessing and planning. Surely, if bodies are risk assessing and then planning, it follows that action may have to be, or will have to be, taken. I will give an example. If the fire brigade risk assesses and plans to deal with an incident—whether it is some sort of chemical attack or another incident that you have mentioned—it would probably have to purchase specialist vehicles, decontamination equipment and all the resources and training that would be required as a result and that would surely not be resource neutral. If risk assessment and planning take place, it almost automatically follows that there will be resource implications for such organisations.

Even if the bill had not been introduced, I hope that such organisations would have been planning for emergencies. The bill will not impose a new requirement to plan for emergencies—such emergency planning already takes place and all the cost implications are built into the relevant organisations' budgets. The bill will simply change the legislative framework in which organisations operate to try to ensure that they can operate effectively.

I would be appalled if the key organisations that exist to protect us in the event of an emergency were not already planning. It is not as if we have suddenly wakened up and thought that it would be a good idea to have protection in case something goes wrong or to plan instead of trying something out for the first time in an emergency. Organisations are already planning, so there should be no significant cost implications for them.

I am not suggesting that those organisations have not been planning, risk assessing and—I hope—using resources to deal with such situations. I am suggesting that, in the past few years, there has been a refocusing in the area in question and that it has been given increased priority. We are considering anticipated emergency situations that we did not think about previously. Will the more formal processes that the bill will introduce automatically lead to a refocus on emergency situations and tend to increase resource allocation in the area?

The bill would not introduce such burdens. New situations and scenarios and perhaps the identification of new threats would certainly result in added burdens, but that would happen with existing legislation. We already respond to such things.

We already provide additional funding to look at new capabilities that would be required. For example, we provided additional funding for mass decontamination equipment because we had identified a specific problem that had not previously been either identified or properly resourced and addressed. With regard to any other details, the consultation on the regulations will consider any funding impact. We do not believe that that impact would be significant, but we will consider the matter and consult partners. If we identify any specific problems, we will obviously examine them carefully.

It is important to say that this bill will not make us respond to and fund additional risks when they appear. That already happens. The bill is about ensuring that our ability to react once an emergency has been identified is sufficiently robust, consistent and coherent.

I think that you have answered my final question, but I shall ask it anyway. It seems that statutory obligations and new regulations are being introduced via the bill, but if it is UK legislation and funding and resource implications have been identified—although you say that they may be minimal—will the funding come from the UK Government or will it be provided on a Scottish basis?

Anything that we are required to react to and respond to within our competence would be funded by us. If there are UK organisations that need to react as a result of the legislation, the funding may well be made available from UK departments. However, we would fund anything that is within our competence and to which we think we need to respond.

There are no further questions, so I thank the minister and his team for giving us that important information.

I draw members' attention to the short timescale for this process. We will not meet formally next week, because we are doing training on stage 2, so we will not have an opportunity to consider a draft before the report is published. Members can have a look at the draft report only if it is sent out electronically, and they would have to submit any comments to the clerks by this Friday so that the report can be published on Wednesday 3 March.

Does the committee wish to compile a short report on the Civil Contingencies Bill? There are certainly a few points that would be worthy of inclusion, so there would be added value in producing such a report. There is no way round the timescale, unless we want to meet next week to agree the report. I think that the report is going to be short, so unless there is much disagreement among us about what should be included in it, I think that we can manage to do it without meeting.

What issues would members like to be included in the report?

Stewart Maxwell's point about the bill's resource implications is important. I heard the minister's response to that question, but I would be surprised—in fact, I would be quite disturbed—if the situation was completely resource neutral. The organisations that are involved could use the opportunity not only to look again at their administrative systems for such situations, but to conduct an audit of what is already available. I would like to highlight the resourcing issue.

I wonder whether the organisations that are listed as responders are required to compile emergency planning protocols. I am not absolutely clear whose responsibility it is to check that that is being done.

What happens if there is an emergency or a disaster but the organisations have not compiled any such protocols? It would be too late then. The word "audit" was used in that regard, so there will obviously be some kind of inspection, but I think that the provisions in this area need to be a wee bit stronger, with some checking up on organisations to ensure that they have complied. It may be appropriate to assess the need for any additional resources in that context.

One of the bill's key provisions is the ability to make regulations under particular circumstances. I take note of what the minister said, but I was not persuaded by it at all. It is not clear how the Scottish Executive, the Northern Ireland Executive or the Welsh Assembly Government would be protected and restored if there were a national emergency. I understand the minister's argument that the protection or restoration of Her Majesty's Government in some way enables the Scotland Act 1998 to take effect again, but I do not think that that is what the proposed legislation is about. If there is a national emergency, it must not just be a matter of the UK Government taking over; the Scottish Executive should also be protected and restored, and the same should apply for Northern Ireland and Wales.

That is a reasonable point, and it would be good to get some clarity on whether that will be the case. You were referring to the UK Government, and not to the Westminster Parliament. I note that clause 21 refers to the Scottish Parliament, but not to the Scottish Executive.

The wording is:

"protecting or restoring activities of Her Majesty's Government … protecting or restoring activities of Parliament, of the Scottish Parliament, of the Northern Ireland Assembly or of the National Assembly for Wales".

It depends what that means.

We should seek clarification and reassurance on that. Perhaps, in the context of a national emergency, what Michael Matheson has read out about Her Majesty's Government relates specifically to the Cabinet. Clause 21(2) covers

"restoring activities of Parliament, of the Scottish Parliament"

and so on. That might show the intention of the clause, but I think that we need some reassurance on that.

My reading of those provisions is that, if Her Majesty's Government in Westminster was stopped, for whatever reason, the likelihood is that whatever national event caused that would have stopped the Scottish Executive as well. If Government in Westminster was restored, it would not simply be a case of restoring the Scottish Parliament; the Scottish Executive would have to be restored, too. My reading of the bill is that a restored Her Majesty's Government would take over what was happening in the UK, and that, at some point, it might reactivate Parliament, the Scottish Parliament and the two Assemblies.

That needs clarification. What would be the point of restoring the Scottish Parliament, but not the Executive? I presume that the UK Government is specified because it would not necessarily have to convene the Westminster Parliament to manage an emergency—it is a Government that is required in that situation. If the functions of the Parliament were to be restored, the functions of the Scottish Executive would also need to be restored for that to have any meaning. We like to think that clause 21(2) means that that will be the case, but we wish the point to be strengthened or clarified.

I did not accept what the minister said about a restoration of Her Majesty's Government in effect protecting the provisions of the Scotland Act 1998, and about there being no need to mention the Scottish Executive. If that is the case, then the Scottish Parliament would not have to be mentioned either, as the 1998 act—obviously—created the Scottish Parliament. If the bill protects the Scottish Executive, then there is no need to bother mentioning the Parliaments and Assemblies; if it does not do so, then the various Executives, Parliaments and Assemblies should all be mentioned. The clause should not be worded in a half-way manner—I do not think that the Assemblies should be mentioned without the Executives. It should be a fairly simple matter to make the necessary insertion, which I do not think would cause any problems.

There are some interesting questions there, but the main thing is for us to ask for more focus.

As no one dissents from that, we will move on.

I wonder whether our report should say that a Sewel motion is being used rather than a separate bill, given that a little controversy has arisen about the number of Sewel motions that are being used. We could explain that the Sewel motion is appropriate because of what the minister said about consistency and having a UK framework. It might be useful to put that in the report.

Is that agreed?

No. I hear what Margaret Mitchell says, but I do not agree that the report should say that we accept that the Sewel motion was the correct choice and that we accept a UK framework. There is a straightforward case for a Scottish bill. The minister did not clarify why a Scottish bill could not be introduced, so I do not want the report to say what Margaret Mitchell suggested.

If what the minister said were to be included in the report, that would be useful for people who are examining the issue and considering the question of Sewel motions versus bills.

If we say that, we will have to report that some members were concerned that a Scottish bill was not introduced and quote the minister's reply from the Official Report. If members want to mention the issue, we must record the views of the two committee members who disagree with the rest of the committee.

A health warning must be attached to the report, given the limited time that we have had to scrutinise the bill and to question the minister. The report will be short, but it should say clearly that we have had limited time.

We will put that in the introduction.

I am not clear about the previous point. Do members want to mention the minister's reply and say that some members disagreed with the principle of using a Sewel motion, or do members want to say nothing about that?

We have disagreed about Sewel motions in the past and we disagreed fairly recently about the Sewel motion on the Gender Recognition Bill. For consistency, I am not in favour of the Sewel motion.

The use of Sewel motions is worth mentioning, because the issue is being raised in the Parliament more. It is right to say in our report whether, on balance, we approve of the use of the Sewel motion. I take Michael Matheson's point that we have not had much time to consider the bill, which is a general concern about Sewel motions, but on balance, what I heard from the minister made sense.

The proposal is that the report should say that we considered whether a Scottish bill should be introduced and that the majority of committee members were satisfied with the minister's response, but that some committee members would have preferred not to proceed with a Sewel motion. Can we move on?

I am sorry—I want to pick up on the point that Michael Matheson and Margaret Mitchell made about timing. Is that a dimension of the Sewel process? I am with Margaret Mitchell on being relaxed about having a UK bill, but I remain concerned that we have to deal with Sewel motions in a short time.

I propose to separate the two points. The introduction will reflect the consensus that we did not have enough time to consider an important bill. The question whether using a Sewel motion is the right way to proceed is separate. The view on that aspect is split and we will record that in the report.

We have covered resources. Members might want to note the answer to Margaret Smith's question about the form that consultation would take. There will be a protocol, which members might want to see at some point. That is quite important, because without the protocol there would be no guidance on how UK ministers would consult the Scottish ministers.

Do members have further points to make?

Members indicated disagreement.

Our report will be short, but I am sure that it will be useful, as members have raised important points. I remind members that they should feed in any further comments after reading the initial draft by Friday, so that the report can be published on Wednesday 3 March.