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01 Introduction

Summary

• Key issues underpin the main duties under the Act. They relate to the:
  • Definition of emergency.
  • Responders' functions.
  • The links between duties.
  • The role of the lead responder.
• The guidance is principally for Scottish responders with duties under the Act. Similar guidance has been produced in respect of duties under the UK regulations.
• There is a statutory obligation for responders to have regard to this guidance in the performance of their duties under the Act and the Regulations and failure to do so may result in court proceedings.

How to use this guidance

1.1 This Section of Preparing Scotland accompanies Part 1 of the Civil Contingencies Act 2004 ("the Act") and the Civil Contingencies Act 2004 (Contingency Planning) (Scotland) Regulations 2005 ("the Regulations"). It is guidance to which the organisations covered by the Act must have regard and failure to do so may result in court proceedings being brought against them. ¹ The purpose of the Act, Regulations and Preparing Scotland is to provide a framework for Scotland's contribution to UK civil protection in the 21st Century.

1.2 This guidance applies in Scotland. Separate legislation with supporting guidance recognises local conditions in England, Wales and Northern Ireland. ² While civil protection in Scotland is largely a devolved matter and therefore the responsibility of the Scottish Ministers, certain general responders have functions in Scotland (the Health and Safety Executive, the Maritime and Coastguard Agency and the British Transport Police) and are subject to separate regulations and guidance issued by UK Ministers.

1.3 This guidance will support individuals and organisations with a role to play in civil protection and, in particular, will advise those organisations subject to duties under the Act. Those duties relate to preparing for response to emergencies. (Separate guidance on response and recovery are covered elsewhere in Preparing Scotland and that guidance does not have the same statutory duty of compliance. ³

1.4 This guidance is divided into Chapters. Each Chapter describes the chief obligations imposed by the Act on Scottish Category 1 or Category 2 responders by reference to particular duties. Guidance on how the duties may be performed is outlined in Section 3 of Preparing Scotland which also provides examples of good practice and commends a range of options that can support local arrangements.

What the Act and Regulations require

1.5 The Act sets out the duties of responders and the Regulations define, in greater detail, the extent and manner in which the main duties are to be performed. The Act and Regulations are supported by this guidance in addition to other guidance and good practice described throughout Preparing Scotland.

1.6 All the duties specified in Part 1 of the Act rely on the definition of "emergency". ⁴

The definition of "emergency"

1.7 "Emergency" is defined in Part 1 of the Act as - an event or situation which threatens serious damage to human welfare in a place in the UK, the environment of a place in the UK, or war or terrorism which threatens serious damage to the security of the UK.

1.8 The definition of "emergency" is concerned with consequences, rather than its cause or source. Therefore, an emergency inside or outside the UK is covered by the definition provided it has consequences inside the UK.

1.9 An emergency is considered to have consequences inside the UK⁵ if the serious damage is within the territorial sea of the UK. The territorial sea is the area of sea up to 12 nautical miles to seaward of the coast (or, more accurately, to seawad of the coastal baseline established by statute).

1.10 A place in the UK may be anything from a small village or a town square, to a large city, remote rural area, or coastline. While the emergency must have consequences for a place in the UK the duties under the Act and the Regulations apply to events or situations inside or outside the UK.

1.11 Determination of when an emergency has occurred, or is likely to occur, is addressed in three ways.

The Act provides:

• a specification of the kinds of event or situation that may cause "damage"; ⁶
• two tests for determining when an event constitutes an emergency that would require the exercise of a local responder's functions (one of which must be met ⁷); and

The Regulations provide:

• Category 1 responders must adopt a standard procedure for making the decision to implement a business continuity plan or an emergency plan. ⁸

Damage

1.12 The definition spells out the nature of damage ⁹ in each of three categories - human welfare, the environment and security.

Serious damage which tests the responder

1.13 Damage must be serious to constitute an emergency. There is no definition of "serious" in the Act. The Act states that Category 1 responders must apply their duties only if:

• the consequences of an emergency would constitute a threat of serious damage to a place in the UK or the security of the UK; and
• a test for that organisation's ability to perform its functions.

1.14 In this way, the Act narrows the class of emergencies, to which the duties apply, to those which test the responder. An event threatening to cause serious damage to a place in the UK would not constitute an emergency under the Act if it failed to engage one of the Category 1 responder's functions to a considerable extent. In effect, responders themselves determine what is serious, firstly, in the light of their functions and secondly, their ability to deal with the damage.

1.15 The two cases where an emergency is deemed to require the delivery of a Category 1 responder's functions under the Act are:

• in relation to business continuity: ¹⁰

where the emergency would be likely to seriously obstruct its ability to perform its functions; and

• in relation to emergency planning: ¹¹

where the Category 1 responder would consider it necessary or desirable to act to prevent, reduce, control, or mitigate its effects, or take other action; and

would be unable to act without changing the deployment of its resources or acquiring additional resources.

One of these two tests must be met for the main duties of the Act to apply.

Procedure for determining when an emergency has occurred

1.16 A procedure for determining when an emergency has occurred must be written into business continuity and emergency plans. ¹² The procedure must identify the person who will make the judgement, how they will be advised and whom they must inform.

The importance of responders' functions

1.17 The Act requires Category 1 responders to take up their duties by reference to their functions. ¹³ Functions are defined as "any power or duty whether conferred by virtue of an enactment or otherwise". ¹⁴ The reference covers statutory duties and discretionary powers, as well as common law powers that relate to the business of the responder.

1.18 Category 1 responder's functions are called into play when an emergency occurs or is likely to occur.

1.19 A main purpose of the legislation is to require Category 1 responders to prepare to perform their functions as far as necessary or desirable to respond to an emergency. ¹⁵

The role of Category 1 and Category 2 responders

1.20 Category 1 responders are listed in Part 1 and Part 2 of Schedule 1 of the Act. They are the main organisations involved in most emergencies at the local level.

1.21 Category 2 responders are listed in Parts 3 and 4 of Schedule 1 of the Act. They are likely to be heavily involved in particular types of emergencies. They are generally subject to regulatory regimes that require them to plan for emergencies and therefore their duties under the Act are limited.

1.22 The Act brings both Categories of responder under its framework to ensure greater consistency and co-operation at the local level. The Regulations acknowledge the differences between Scottish responders and those regulated in other parts of the UK but active in Scotland, designated as "general" Category 1 or 2 responders. This guidance uses the terms Category 1 or 2 responders unless there is a clear distinction required between those responders covered by Scottish or UK Contingency Planning Regulations.

The links between the duties

1.23 The main duties fall on the Category 1 responders as follows:

• risk assessment;
• planning to continue to perform functions - business continuity management ( BCM);
• emergency planning; and
• maintaining public awareness and arrangements to warn, inform and advise the public.

Figure 1.1 shows how the elements of the Act fit together.

1.24 A fifth duty applies to local authorities alone, ¹⁶

• the promotion of BCM for business and voluntary organisations.

1.25 Two further duties are prescribed in the Regulations:

• co-operation; and
• information sharing.

These two duties will strengthen partnership arrangements at local level.

Figure 1.1 How the seven elements of the Act fit together

1.26 Risk assessment provides the foundation for other duties. Emergency planning is supported by business continuity planning and both are determined by risk assessment. Its purpose is to ensure that Category 1 responders can perform their functions effectively in an emergency.It supports public awareness work and shapes arrangements for warning and informing the public. Local responders must co-operate and share information in fulfilling these duties.

1.27 Providing business continuity advice and assistance to business and voluntary organisations is likely to be linked to emergency plans and draws on risk assessments. It is also supported by co-operation and information sharing with partners.

The lead responder principle

1.28 The main duties of the Act fall equally on all Category 1 responders. Consequently, there is a risk that Category 1 responders may duplicate each other when, for example, carrying out their duty of risk assessment or providing warnings when an emergency occurs.

1.29 This is particularly important in relation to communicating with the public. It would not be sensible for a number of responders each to be publishing similar information for the same members of the public. It might be unsafe if several organisations were to issue public warnings about an emergency in an unco-ordinated fashion. To address this difficulty specific regulations have been drawn up. These regulations are described in Chapter 5 consistent with the principles outlined below.

1.30 There is a further potential difficulty regarding ineffective use of resources where several responders each have a common duty such as assessing risk. Regulations address these matters by permitting Category 1 responders to identify one of their number as lead responder. ¹⁷

1.31 The lead responder is the Category 1 responder that agrees to take lead responsibility for performing a given duty in relation to a given emergency, or an emergency of a particular kind, in its Police area. The other Category 1 responders that are parties to the decision are referred to as non-lead Category 1 responders.

1.32 Regulations outline the requirements on a lead Category 1 responder. It must: ¹⁸

• take the lead responsibility in its police area;
• consult the non-lead Category 1 responders in performance of the duty;
• keep the non-lead Category 1 responders informed about how it is fulfilling the duty; and
• as far as reasonably practicable, obtain approval from the non-lead Category 1 responders for the way they are performing the duty.

1.33 Regulations also specify the role of the non-lead Category 1 responders. ¹⁹ They must:

• co-operate with the lead Category 1 responder in performance of the duty;
• provide information to the lead Category 1 responder which will assist in performance of the duty; and
• assist the lead responder in any exercises or training in connection with the duty.

However, the non-lead Category 1 responders do not themselves need to perform the duty to an extent that would unnecessarily duplicate what the lead Category 1 responder is doing. ²⁰

1.34 A decision by the local Category 1 responders, with similar duties, not to co-operate to identify a lead responder in relation to a particular duty leaves them individually responsible for the performance of that duty. Agreement between them to allocate the responsibility under the lead responder principle will ensure proper co-ordination of risk assessment, multi-agency emergency planning and communication with the public.

1.35 To accept lead responsibility does not mean accepting sole responsibility. For example, the lead responder may co-ordinate other responders' activity to ensure that they fulfil their duties to warn and inform the public.

1.36 The lead responder in terms of particular activity in preparation and response should not be confused with the leadership of the Strategic Co-ordinating Group, the change in leadership as a response to an emergency develops or the role of some Category 2 responders in response to particular types of emergency. This is covered in Chapter 2 of this guidance.

Cross-border co-operation

1.37 It is commonplace, as a sensible element of civil protection work for individual organisations to plan to work with neighbouring authorities, should that be required to respond effectively to an emergency. The Regulations permit this to happen between authorities in Scotland and England and Wales, thus ensuring that planning can be joined up in border areas. ²¹

Other statutory regimes in the field of civil protection

1.38 A particular set of risks is excluded from consideration under the legislation. ²² These risks and the planning arrangements which address them, are subject to the Control of Major Accident Hazards ( COMAH) Regulations 1999, the Pipeline Safety Regulations 1996 or the Radiation (Emergency Preparedness and Public Information) ( REPPIR) Regulations 2001. Responders are not required to exercise their duties under the Act and the Regulations in relation to emergencies covered by these provisions. By excluding them the Act ensures that there is no conflict or duplication between the two sets of requirements.

1.39 However, Category 1 responders may use the Act regime to support or supplement these separate regimes where they consider this appropriate. For example, if Category 1 responders wish to include COMAH risks in the Community Risk Register, this is acceptable. They can also make information requests under the Regulations to support the COMAH duties, if they wish.

1.40 Potential difficulties that may be caused by a separation between the two regimes, the one supported by the Act, the other by the Health and Safety Executive, is addressed by the inclusion of the Health and Safety Executive as a Category 2 responder.

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