THE CIVIL CONTINGENCIES ACT 2004

Vol. 17 No. 2 (February, 2007) pp.122-124

THE CIVIL CONTINGENCIES ACT 2004: RISK, RESILLIENCE, AND THE LAW IN THE UNITED KINGDOM, By Clive Walker and James Broderick. Oxford: Oxford University Press, 2006. 416pp. Paper. £49.95/$95.00. ISBN: 9780199296262.

Reviewed by Michael P. Allen, Associate Professor of Law, Stetson University College of Law. Email: allen@law.stetson.edu.

In the wake of emergencies both natural (e.g., floods and cattle disease) and manmade (e.g., 9/11 and terrorism generally), the Parliament of the United Kingdom passed The Civil Contingencies Act 2004 (the “Act”). The Act had two principal aims: to provide frameworks (1) for comprehensively preparing for future emergencies; and (2) by which government at all levels would operate under emergency conditions when they inevitably occurred. In other words, the Act sought to manage risk before an event and ensure the resiliency of government after the fact.

Like the statute that is its subject, THE CIVIL CONTINGENCIES ACT 2004: RISK, RESILLIENCE, AND THE LAW IN THE UNITED KINGDOM is really an amalgamation of two quite different things. On one level, this book is a highly detailed analysis of the Act and its associated regulations. But the book is much more. Clive Walker and James Broderick have also taken pains to situate the Act within the theoretical framework by which modern societies deal with risk and uncertainty more generally. Walker and Broderick undertook a substantial challenge to accomplish both goals in a single work. By and large they have done so in this interesting book.

Walker, a professor of criminal justice studies at the University of Leeds, and Broderick, a lecturer in emergency planning management at the University of Leicester, faced an important threshold decision with respect to the book: should they first describe the Act and then situate it in the relevant theoretical framework or should they begin with the theory of risk management and then turn to the Act itself. They elected to begin with theory and then turn to a consideration of the statute and relevant regulations. Although I initially questioned the decision, by the end of the book I had become convinced that one needs to understand the risk management theories in order to fully appreciate the Act.

In Part I, which includes only Chapter One, Walker and Broderick “elicit the broad themes by which to understand the nature of emergencies and risk as well as responsive strategies and operational plans” (p.3). What follows is a highly theoretical and multidisciplinary discussion of the increasing risk facing the world today as well as the attendant uncertainty about that risk. After exploring several conceptions of risk and the government’s role in relation to the concept, the authors conclude by arguing that, in modern society (at least industrialized societies), government’s role is that of [*123] risk manager instead of risk avoider. The rest of the book is, in many respects, the authors’ attempt to explain how the Act fits into this risk management function of modern government.

Part II turns from risk-theory to the Act’s details. In six chapters, the authors provide an intensely detailed description of the Act, including a discussion of the genesis of its various provisions as well as certain weaknesses in the statutory scheme. Chapter Two provides an overview of the state of emergency planning and preparedness legislation in the United Kingdom before the Act. It also sets out a high-level description of the various parts of the statute. As Walker and Broderick explain, the Act can be thought of as working in two aspects. Part I focuses on planning for emergencies. Part II provides a structure for responding to emergencies once they occur. The overview is particularly effective in preparing a reader for the detail work that is ahead.

Chapter Three’s focus is on one of the most important and also more controversial parts of the Act: what exactly is an “emergency.” This concept is central to both parts of the Act since each of them is keyed to planning for or responding to an “emergency.” The authors first explore the statutory definition. Thereafter, they preview some objections to the definition as applied in the statute, particularly in Part II concerning responses to an emergency that has taken place.

Chapter Four is a highly detailed analysis of Part I of the Act. This Chapter would certainly be useful for local officials charged with implementing the statute’s contingency planning. It would also be a treasure trove of information for policymakers considering whether to develop a contingency planning system in their own (non-United Kingdom) jurisdiction and what form such a system should take. For the rest of readers, however, I suspect that the Chapter will be skimmed more than read. This is not to say that the authors have written poorly or that the chapter should not have been included in the volume. Instead, my comment reflects the reality of the authors’ challenge to provide detailed analysis of the Act while also addressing broader issues of policy.

The balance of Part II, Chapters Five, Six and Seven, deals with the far more controversial provisions for dealing with emergencies once they occur. This issue, response to emergencies, is at the heart of many debates around the world today. In the United States, for example, one conjures up images of the Nation’s reaction to the September 11th attacks as well as the botched response to Hurricane Katrina. In the United Kingdom, the images are of bus bombings and massive livestock slaughter among other things. The point is that this section of the book speaks powerfully to contemporary fears.

Chapter Five explores the specific terms by which the Act empowers the government to make regulations in an emergency situation. As with the earlier chapter concerning contingency planning, this chapter is highly detailed. However, it seems more accessible than [*124] the earlier discussion. The authors also explore some of the shortcomings they perceive in the statutory approach. Specifically, while applauding the concept of considering the process for implementing policy in emergency conditions before an emergency exists, they express concern that the Act “has the potential to inflict terrible damage on the constitution of the United Kingdom” (p.214). Although the extent of such damage would likely be debated, Walker and Broderick very effectively bring to the fore the trade-off between security (or in the book’s arena, risk management) and liberty.

Chapters Six and Seven continue the discussion of the tension between security and liberty by exploring in greater depth the authors’ principal civil libertarian concerns. Chapter Six focuses on the Act’s potential implications on British constitutionalism, while Chapter Seven addresses human rights issues under United Kingdom and international law. As with the overview of these matters in Chapter Five, these chapters are particularly well-written and thought provoking.

The book concludes with Part III, “The Operationalization of Resilience,” which consists of two Chapters that seem to have little connection with one another. Chapter Eight provides a critique of the Act’s failure to include much direction concerning the specific role of the central government as compared to those of localities and regions. The chapter also offers a wealth of additional information concerning other relevant law that would fill the gaps the Act leaves as a result of its silence on the issue. As with some of the earlier chapters, the discussion here is highly detailed and likely to be of most use to those trying to navigate their way through the web of legislation that dictates the role of the United Kingdom central government in emergency planning and response.

Chapter Nine concludes with a brief comparison of the Act’s approach to contingency planning and response to that taken in New Zealand and the United States. I found this chapter to be one of the most interesting in the book. Gone is the intense detail. Instead, it is both an accessible summary of much that has come before as well as an articulate analysis of some of the interesting questions raised by comparing differing statutory responses of three quite different industrialized nations.

In sum, while there are portions of this book that are too detailed for many readers, overall it is worth reading for its excellent discussion of risk and the government’s response thereto. Walker’s and Broderick’s voices are an important contribution to the growing literature in the area.

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