This paper represents the view of the Association of Chief Police Officers (ACPO) and has been prepared following wide consultation with the police forces of England, Wales and Northern Ireland.

  ACPO is supportive of the work undertaken by the Civil Contingencies Secretariat in preparing the legislation and has been actively involved in the process. In particular, ACPO supports the creation of statutory responsibilities in contingency planning and the requirement for partnership working. Some aspects of the draft Bill consolidate existing practice, notably in local multi agency planning groups based on police force areas, but other proposals are new, such as the regional tier. As the Bill is enabling legislation it is difficult to make comment on some clauses until such time as draft regulations are produced; ACPO believes that wide consultation on those draft regulations would be beneficial.

  The consultation document seeks comments on 23 specific questions; these will be responded to numerically before other issues are addressed.

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

  The suggested definition appears adequate in defining the wide range of events and threats that present the potential for critical disruption. There is concern, however, that a routine task of the police and other emergency services is to respond to events which meet the definition, but which do not require the level of inter-agency planning as defined in clause 2 of the Bill. It is therefore suggested that reference should be made to "major emergency", as defined in "Dealing with Disaster"; primarily this removes routine events and concentrates upon those disruptive challenges of such a scale that they cannot be dealt with as part of normal day to day activities.

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?

  ACPO considers that two further obligations should be imposed on Category 1 responders, namely the requirement to exercise plans and the requirement to train staff to enable those plans to be viable.

  ACPO has concern regarding the requirement, in clause 2(1)(f), to arrange for the publication of assessments and plans. Whilst accepting the limitations placed by the legislation in sub-paragraphs (i)-(iii), there is the potential for security to be compromised through the publication of information relating to specific sites. It is suggested that clear guidance should be given in the notes to ensure that due diligence is exercised by site owners, and other responders who may have a planning responsibility, so that there is no potential for security to be breached by the publication of sensitive information.

  The draft Bill, clause 2(1)(a)(g) places each Category 1 responder under a number of duties, such as risk assessment, planning for business continuity, monitoring plans and warning arrangements. ACPO considers that, notwithstanding clause 2(2), these duties should not be placed upon each Category 1 responder; rather there should be a collective responsibility to ensure that such arrangements are in place in that locality. It is accepted that regulations made under clause 2(2) may clarify the position but, without the benefit of having seen such regulations, it is considered that the duties, as stated, are too general.

  ACPO has significant concern regarding the duty to maintain arrangements for warning the public; again, regulations may help to clarify what is envisaged. Existing legislation, for example COMAH, already requires plant operators to maintain warning arrangements. Similarly, the Environment Agency has responsibility for flood warning dissemination. There appears little benefit, and significant risk, in altering these arrangements. The ACPO position reflects the draft position statement prepared for the Civil Contingencies Committee (Policy), in 2001, by a working group chaired by the Home Office. A copy is given at Appendix A. Put simply, at fixed sites the operator should be responsible for public warnings, for flooding it should be the Environment Agency, for severe weather warnings it should be the Met Office, and for mobile emergencies, such as chemical leaks from road tankers, it should be the police. In practice the emergency services and local authorities combine to ensure that communities receive adequate warnings, but lead responsibility should be carefully considered. It appears desirable that Category 1 responders, meeting as the Local Resilience Forum, should be charged with ensuring the adequate warning arrangements are in place.

Q3.   Do you agree that the membership of categories 1 and 2 is right? If not, which organisations should be added, moved or removed? If not, please explain how the powers should be expanded or constrained.

  ACPO is supportive of the nominated Category 1 responders, although there is concern that the inclusion of Shire District Councils may not be appropriate. It is recognised that Shire Districts vary significantly in size and therefore resources, but the inclusion of both Counties and Shire Districts is seen as potentially difficult, notwithstanding the proposal that regulations may be made which would allow County Councils to act on behalf of the Districts. The consultation document recognises the need for clarity regarding NHS participation in Local Resilience Forums. The ACPO view is that there are two distinct phases in the NHS response to a major emergency—one which deals with on-site treatment, triage and patient transport from the scene, and the other which deals with longer term patient care. NHS ambulance trusts clearly represent the first of these, and should therefore be included as Category 1 responders. The second role could be filled by either primary care trusts or strategic health authorities; ACPO prefers the latter option as it would provide a wide level view more in keeping with the strategic remit of the Local Resilience Forums.

  The role of Category 2 responders is that of "co-operating bodies", and it is important that local consideration be applied as to which bodies are appropriate in each police force area. Given that the role is one of co-operation rather than as a statutory body to undertake specific tasks, it is likely that as comprehensive a list as possible should be produced so that, if necessary, they will be available to assist Category 1 responders. Therefore chemical, nuclear and other industrial companies should be included, as indeed should appropriate voluntary organisations that have specific roles in response plans. The key factor is that local circumstances should dictate local arrangements, and the legislation should enable this to be readily achievable.

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?

  The ACPO response is that is very difficult to comment until the regulations have been seen; however, the context in which such regulations will be made is seen as appropriate.

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?

  There is clearly a need for consistency in local arrangements, and ACPO is supportive of the proposal that, to a very large extent, captures what is already in place.

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?

  The partial RIA does not include the costs and benefits on local authorities and the emergency services. Paragraph 9 of the RIA states that "New burdens, not falling upon businesses, charities or the voluntary sector, were accordingly identified at the regional level, but were not felt to be significant at other levels." It is the ACPO view that this is unwarranted assumption, and that the police service, inter alia, will incur additional costs—particularly in ensuring auditable records are maintained, in arrangements for public warnings and in exercising and training. It is considered highly likely that local authorities would have a similar view.

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?

  The ACPO position is that this is essentially a matter for local authorities as the police service does not receive any funding for contingency planning. However, should local authorities not receive specific grant then there is potential for other activities to take priority over contingency planning and, given the joint responsibilities of Category 1 responders, the police service may face additional cost.

  The need for robust audit and inspection regimes will be even more important in the absence of specific grant.

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.

  It is the ACPO view that this is a matter for local authorities, subject to the response to question 7, above.

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

  Experience of working with Crime and Disorder Reduction Partnerships suggests that multi agency performance measures are both difficult to create and have limitations in holding organisations to account. Similarly, the Government's view that existing inspection regimes would be effective in ensuring consistent performance management does not appear to recognise that there is greater value in a separate, specialist inspectorate for contingency planning. The Government's proposal is that the Audit Commission, emergency services inspectorates, and the utility regulators would each be responsible for overseeing a part of the planning process; ACPO believes that there is merit in further investigating the creation of a small separate body to ensure that all responders fulfil their responsibilities, both separately and jointly.

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?

  ACPO recognises the benefits of the role of a Regional Nominated Co-ordinator. The definition of "co-ordinator" in "Dealing with Disaster" adequately outlines the task of the RNC and will enable services, authorities and others to work harmoniously together. Again using the "Dealing with Disaster" definitions, the RNC would not command resources of other agencies, but would ensure that they work together, each under their own command structure. ACPO is of the view that this would enhance resilience without entering contentious areas such as "operational independence" of Chief Constables.

  One procedural difficulty is that, as proposed, the RNC would not be formally appointed until special legislative measures were taken, at "Level Three", but would be required to chair the Regional and Civil Contingencies Committee at "Level Two" which preceded it. This apparent anomaly can be overcome by using the nomination "Regional Nominated Co-ordinator (Designate)" until such time as special legislative measures were introduced. ACPO supports the proposal for the RNC to be drawn from the lead organisation, but firmly believes that this should be an officer appointment, and not an elected member or Government Minister.

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

  ACPO supports this proposal, although it does recognise that some emergencies could occur where sub-regional designation would be more appropriate—for example east coast flooding could cross four regions, albeit in two of them only one county would be involved.

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.

  ACPO agrees that the current emergency powers framework is outdated and needs to be replaced. Existing legislation is neither sufficiently flexible nor sophisticated to support resilience work in a complex technical society.

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?

  ACPO recognises the need to widen the basis upon which emergency powers may be introduced.

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

  See the response to question 11, above.

Q15.   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? If not, is delay acceptable or is there another alternative mechanism?

  Although there is some support within ACPO for the view that the Head of State, acting on the advice of Ministers, should be the authority for such action, this is not unanimous and, in particular, there is a view in Wales that this decision should rest with the devolved administration.

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?

  ACPO does not believe that it is acceptable for any delay to occur in responding to emergencies and that, therefore, in such circumstances it would be appropriate for a Secretary of State to so act.

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.

  ACPO is of the view that the regulations should be treated as primary legislation so that necessary urgent action, which might include powers to restrict the free movement of citizens, could not be delayed by an injunction. This would not preclude challenge by due process but would ensure that urgent necessary action would not be delayed.

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?

  ACPO does not represent chief constables of Scottish police forces and therefore does not respond to this question.

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?

  The view of chief constables of Welsh police forces is that the Welsh Assembly Government should be allowed to declare special legislative measures without further reference.

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?

  The Police Service of Northern Ireland agrees with the proposals for Northern Ireland.

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?

  ACPO agrees that the role and accountability of the Emergency Co-ordinator in a devolved country should be flexible so as to reflect different types of emergency.

Q22.   Do you agree that the devoled administrations should be able to declare that special legislative measures are necessary, and take action accordingly? If not, please explain why.

  ACPO recognises the view that Devolved Administrations should be able to declare special legislative measures as valid.

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 put in place?

  ACPO considers that the proposed arrangements for London are appropriate, in that they reflect existing practice which has been shown to be effective.

FURTHER MATTERS FOR CONSIDERATION

1.   Part 2, Emergency Powers

  ACPO is pleased to note that clause 21(3) would enable regulations to be made that would allow police officers to contain persons within a cordon, for example if it was suspected that they had been contaminated. Similarly, clause 21(2) would enable regulations to be made requiring persons to be de-contaminated. There is some debate as to whether such powers exist in Common Law, and the proposed regulations will give confidence to police officers should such powers be needed.

  ACPO wishes to register concern that some of the Emergency Powers, as proposed, do not appear to meet operational requirements. In particular:

(a)  there is no specific power of arrest and no specific authority to use force when dealing with offences proposed at clause 21(3)(i);

(b)  the upper limits of punishment detailed in clause 21(4)(d) are low when compared to the consequences of possible offences;

(c)  the stipulation that regulations may not prohibit industrial action may have consequences in undermining essential work by rescuers and others, clause 21(4)(b); and

(d)  the inability to require industrial service, clause 21(4)(a) may render ineffective the power to requisition specialist equipment as provided by 21(3)(b).

2.   Data Sharing

  Clause 6 of the draft Bill allows regulations to require the disclosure of data and ACPO has concerns that this could include secret and/or confidential information. Care will therefore need to be taken in drafting such regulations.

3.   National Forum

  ACPO has concerns that the lead govenment department concept results in no one department having overall national responsibility for emergency planning and response; the Civil Contingencies Secretariat has a facilitating role rather than a directing role. Similarly, although there will now be local and regional resilience forums, ACPO believes that there is a role for a national resilience forum with responsibility for strategic oversight of contingency planning, involving government and those organisations designated as Category 1 responders at local level.

August 2003

DRAFT POSITION STATEMENT ON POLICY FOR ALERTS FOR AGREEMENT BY CIVIL CONTINGENCIES COMMITTEE (POLICY)

BACKGROUND

  1.  For some years there has been concern among the emergency planning community about various aspects of warning the public in the event of an emergency. In particular, the issue of who should be responsible for warning the public in the event of an emergency.

  2.  These concerns led to the formation, with Home Office encouragement, of the National Steering Committee for Warning and Informing the Public (NSCWIP) which has brought together all the agencies with an interest in this area and concerned with various aspects of emergency response. The work of the NSCWIP is of great value in taking forward initiatives on warning and informing the public and doing so with the involvement of all interested agencies, rather than by one agency in isolation.

  3.  The NSCWIP is reviewing the problems and issues surrounding the warning of the public in UK, and will make proposals to Central Government through the Home Office.

  4.  More recently, there have been calls for a Government statement clarifying roles and responsibilities for alerting the public to emergencies. It was therefore agreed that Home Office Emergency Planning (EPD) would convene a Working Group to consider the issues and prepare a position statement for agreement by Civil Contingencies Committee (Policy) on responsibilities for alerting the public in the event of emergencies. The Working Group would take into consideration the work of the NSCWIP who are also considering similar issues. The members of the working group are listed at Annex A.

  5.  The terms of reference of the group were to:

—  Identify the types of emergencies that require alerts to be issued to the public.

—  Identify current and planned responsibilities for issuing alerts, clarifying legislative requirements.

—  Identify any areas of concern with current and planned arrangements, and make recommendations for improvements.

DRAFT POSITION STATEMENT

  6.  The group agreed that the draft position statement should divide responsibilities for alerting the public in England and Wales in the event of emergencies into three generic groups. The group acknowledged that different administrative arrangements exist in Scotland and Northern Ireland but the principles below would be followed where possible.

GENERIC GROUP 1

Incidents at hazard sites covered by regulations

  7.  These are incidents at known hazard sites where alerting systems are required by regulations eg sites covered by COMAH and PIRER/REPPIR. Alerting responsibilities for these sites should be sub-divided into two actions:

(a)  deciding that an off-site alert needed to be issued. This should be the responsibility of the site operator who would be best placed to immediately assess the implications of the incident; and

(b)  arrangements for issuing the alert. The type of alerting systems required should be agreed between the site operator, local authority and emergency services as part of the off-site emergency plan. The site operator should be responsible for meeting all installation and maintenance costs of the alerting system.

GENERIC GROUP 2

Incidents where advance warning is likely

  8.  These are incidents where some advance warning is likely eg flooding, severe weather, overseas nuclear accidents, and satellite incidents. Alerting should be conducted using existing arrangements under the responsibility of the Lead Government Department or nominated agency.

GENERIC GROUP 3

Other incidents where advance warning is unlikely

  9.  This group includes spontaneous incidents, those at locations where alerting systems are not required by regulations and where advance warning is unlikely. Examples are transport accidents, or incidents at premises not covered by regulations such as COMAH and PIRER/REPPIR. For such incidents, alerting should be the responsibility of emergency responders, probably the police in most instances. Where possible pre-planned arrangements such as local radio and television announcements should be used, but ad-hoc arrangements such as loudhailers and door-to-door calling may be necessary.

IMPLEMENTATION

  10.  When the statement is approved by CCC(P), Departments (and Agencies) will ensure the implementation of the principles of the statement by their incorporation into all relevant regulations and guidelines.