Grand Committee Report of 19 May 2004

Official Report of the Grand Committee on the

  Fire and Rescue Services Bill
  (Third Day)
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
  Clause 21 [Fire and Rescue National Framework]:
  Baroness Hanham Baroness Hanham moved Amendment No. 69:
  Page 11, line 2, leave out from "manner" to "best"
  The noble Baroness said: Amendment No. 69 is short and simple: it seeks to make much more objective the obligation of the Secretary of State under subsection (4) to discharge his functions under subsection (1). It would require that the functions be discharged in the manner best calculated to promote public safety and the economy, efficiency and effectiveness of the fire and rescue authorities—a theme which is common throughout the Bill—and matters in connection with which they have functions, rather than requiring that the functions be discharged,
  "in the manner and to the extent that appear to him"—
  the Secretary of State—to be best calculated to promote these objectives. It is not unreasonable to seek to introduce a semi-objective test of how the functions of preparing and publishing the national framework are discharged.
  At the moment, the Secretary of State could reasonably argue that the wording is so loose that there is no objective hurdle for him to meet. We can see no reason not to introduce an objective test that would make the Secretary of State's draft of the Fire and Rescue National Framework subject to potential challenge if it did not focus on public safety and economy, efficiency and effectiveness. I beg to move.
  The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): As the noble Baroness said, it is quite a short amendment. I shall respond to it but, as we are coming to a group of amendments on the national framework, if I take a little longer to respond to it—I can deal with the narrow amendment quite quickly—and put some flesh on the national framework, I shall not have to repeat myself on other amendments. That may be helpful in enabling us to make progress.
  Amendment No. 69 seeks to remove the provision for the Secretary of State to decide what is best calculated to promote public safety and the economy, efficiency and effectiveness of the fire and rescue authorities. It may be that the amendment is designed to hold up the Secretary of State's decisions to
  GC 336
  scrutiny, on the one hand, but, in reality, we think it will lead to confusion. There is a degree of subjectivity, for example, about what is the best way to promote the efficiency of the service.
  The amendment does not specify who would decide what is best calculated to promote public safety and the economy, efficiency and effectiveness of the fire and rescue authorities or, indeed, how it would be decided. Therefore we think it would be an unhelpful and unnecessary ambiguity and lead to the possibility of challenge. None of this will do anything to improve the service delivered to the public, which is the ultimate aim of the Committee.
  Perhaps I may say a few words in passing about the legal status of the national framework and tie that issue in with this and other amendments. The legal status of the national framework is as guidance to which the fire and rescue authorities should have regard in carrying out their functions. As such it does not impose mandatory requirements such as may be imposed by primary or secondary legislation. In order to provide strategic direction for the fire and rescue service, the national framework sets out priorities and objectives for the authorities.
  We have said that the authorities should consider the majority of these in carrying out their functions. However, how these priorities and objectives are delivered locally will be a matter for the authorities themselves to decide. It is critical that we should strike the right balance between providing strategic central government direction and local decision making by authorities. We think that we have the balance right. For example, we have said that fire and rescue authorities should have in place and maintain an integrated risk management programme, but also that it should be based on local need and effectively address existing and potential risks to communities.
  We have said that—working with partners where appropriate—fire and rescue authorities should develop a planned programme of community fire safety work, but also that they should respond to the needs and risks identified in their communities as part of the integrated risk management programme approach. At a regional level we have said that authorities, through regional management boards, should draw up a regional human resources strategy but that the strategy should identify and implement the most efficient and effective means for that region to deliver these services.
  Some parts of the framework set out certain specific measures that are central to the delivery of an efficient and effective service. They indicate the importance we attach to adopting a particular approach in order to achieve the desired outcome. That is indicated by the use of the word "must". This will affect the weight that authorities will have to give those parts of the framework, but does not alter the fact that the framework in itself is guidance. However, the use of the word "must" also indicates that if the fire and rescue authority does not act in accordance with that part of the framework, it may trigger use of the intervention powers under Clause 22 to ensure that it

  GC 337
  does so. I should like to remind noble Lords that any use of the intervention powers under Clause 22 will be in accordance with the agreed local government intervention protocol and will require an order which would be laid before Parliament.
  For example, the draft framework states that fire and rescue authorities must establish regional management boards to plan for six key areas at the regional level: common and specialist services; resilience; human resource functions; training; control rooms; and procurement. For reasons of public safety it is critical that, for example, we move to regional control rooms and ensure the roll-out of an integrated fire link. All fire and rescue authorities must play their part in that.
  However, in other areas we have made it clear that while no individual authority can simply opt out, how the functions are delivered will be decided regionally. For example, fire and rescue authorities, through regional management boards, should ensure that efficient and effective regional procurement arrangements are in place.
  I hope that that brief background that I have set out as an additional response to the amendment will reassure noble Lords that the national framework provides strategic leadership, not national prescription, and that local and regional decision making and accountability remain paramount. I hope too that these remarks will be useful to our brief debates on the forthcoming amendments, and that the noble Baroness will not press Amendment No. 69.
  Baroness Hamwee: On reading the draft framework, I realise that much of it deals with actions and decisions that will have to be taken by the Secretary of State. What is done by the fire and rescue authorities will be dependent on what is done by the Secretary of State. The Minister has been helpful, and we shall come in due course to the sanctions on local fire and rescue authorities if they fail to do what, given the framework, one might expect. However, what sanctions are there if the Secretary of State does not do his bit? It is difficult to distinguish between what are commitments and what are aspirations. Can the Minister say whether it will be for Parliament to scrutinise the actions of the Secretary of State? How does this fit together?
  Lord Rooker: With respect, I do not want to jump the gun here. It would be better to deal with those issues as we work through the amendments. I made my preliminary statement only to provide a bit of extra information.
  I have a couple of paragraphs of briefing with which to respond to this amendment, but they would have been even briefer than the speech of the noble Baroness. However, we thought it would be useful to put the statement on the record. I shall be happy to respond to the noble Baroness as we work our way through the amendments.
  Lord McCarthy: What the Minister has said is helpful because it tells us how the Government see the
  GC 338
  clause. However, I did not quite follow him when he said that he wanted to reject the amendment. I think that the amendment would merely clean up the English. If you take out the words,
  "and to the extent that appear to him to be",
  so far as I am concerned it would mean exactly the same, but the phrase is shorter. Why are we straining at this gnat?
  Lord Rooker: Precisely for the reasons that I gave in response. Accepting the amendment would lead to confusion. There is a degree of subjectivity about the best way to promote efficiency. The amendment does not specify who would decide what is best calculated to promote public safety, or how that would be decided. Therefore, that would be unhelpful and unnecessary and introduce ambiguity and the possibility of challenge. Those are the reasons that I gave on the narrow points of the amendment.
  Baroness Hanham: I thank the Minister for that reply. The noble Lord has really picked up the point. The clause can be read as saying:
  "The Secretary of State must discharge his functions under subsection (1) … in the manner … best calculated to promote".
  "Best calculated" is the best bit, and that is still what the Secretary of State is required to do. The words,
  "in the manner and to the extent that appear to him"
  begin to be an objective test of whether he does or what he does. I was just trying to clarify that aspect to make it clearer that that is what is meant to be happening. I hear what the Minister has to say, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Hanham Baroness Hanham moved Amendment No. 70:
  Page 11, line 4, at beginning insert "firstly."
  The noble Baroness said: In moving Amendment No. 70, I will speak to Amendments Nos. 71 and 72. These begin to attempt to alter Clause 21(4) to create a clear hierarchy of objectives that the Secretary of State must follow in discharging his functions under subsection (1), which requires that he must prepare a Fire and Rescue National Framework. At the moment, subsection (4) lists three objectives that the Secretary of State must pursue in discharging that duty under subsection (1). Amendment No. 70 would make it explicit that public safety is the first consideration, and that economy, efficiency and effectiveness are the second considerations to be promoted to the extent that it is not at the expense of public safety.
  While I am sure that the Minister will agree that public safety must be the number one consideration, there will be occasions where there are conflicts between economy and efficiency, on the one hand, and optimising public safety, on the other. In order to avoid the problems inherent in such conflicts, it is important that there is a clear hierarchy of priorities with public safety as the most important. The amendments would resolve potential conflicts between

  GC 339
  objectives and make it clear in the Bill which is the priority in the event of conflict. That is public safety. I beg to move.
  Lord Rooker: I note what the noble Baroness said, and she is explicit about what she wants to do about paragraphs (a), (b) and (c) in subsection (4). The amendments are unnecessary—I will state the obvious now—and they remove the flexibility for the Secretary of State to respond effectively to a wide range of circumstances when deciding, for example, on the priorities and objectives of the fire and rescue service. We have always said, and this should be put on the record again, that we would never do anything to prejudice public safety. I assure noble Lords that the national framework will reflect that.
  Similarly, we have always stated that public safety will usually be our principal motivation in intervening with fire and rescue authorities. I give that assurance once again. The amendment therefore addresses a problem that does not exist, because it would undesirable, since a vital part of having an effective fire and rescue service includes being able to weigh up the efficiency of a variety of their functions, not simply those linked to public safety. This is integral to the purpose of providing strategic leadership for the service through the national framework.
  The clause as drafted will give sufficient flexibility to the Secretary of State to allow him to decide how to discharge his functions under subsections (1) and (3) in a manner that will ensure that the fire and rescue authorities provide an economic, efficient and effective fire service that promotes public safety and saves lives. The amendments would be too restrictive and take too narrow a view of what is in the interests of the public, both in terms of safety and generally.
  For example, an authority might allocate a disproportionate amount of public money to cater for risks that are either inconsequential or are adequately covered by other arrangements. Taken in isolation, such steps could be seen as furthering public safety, but in practice, they would mean that other, more deserving areas of the authority's functions were neglected to the detriment of public safety, or that the local taxpayer was asked to foot an excessive bill. In other words, the amendment would not always allow the Secretary of State to take a balanced view of the public interest. Nothing in that explanation is intended to undermine the point that I made that public safety will usually be our principal motivation in intervening with fire and rescue authorities.
  I shall give an extreme example, but it is fairly specific. A fire and rescue authority could consider that, in the interests of public safety, it wished to place a fire station at the end of every road. That certainly could not be considered to be in the broader interests of the public, who would have to provide the money to finance the exercise. In providing strategic leadership for the fire and rescue service, we seek the best possible balance and require the flexibility to, for example, set priorities and objectives for the fire and rescue authorities that ensure that they perform adequately all their functions, all of which affect the public.
  GC 340
  It is obviously an extreme example, but one could argue that the only way to guarantee to get somewhere in a minute was to have a fire station or appliance at the end of every road. Clearly, that could be detrimental to economy and efficiency. That said, nothing undermines the point that I made that public safety will usually be our principal motivation for interfering—intervening, rather than interfering.
  3.45 p.m.
  Baroness Hanham: If the Minister had not said that, I would not have noticed it. I thank him for that reply. His example is very extreme. A more objective test might be where a fire and rescue authority wished to provide a particular vehicle or piece of equipment for public safety or to help it in a firefighting or rescue situation. The Secretary of State might decide, in the interests of economy and efficiency, that that was not the best use of money. There would be great tension in that case between the authority and the Secretary of State. My example is rather less extreme and more practical.
  The matter will not delay us terribly long. We have heard what the Minister said and I am happy with his response. Therefore, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 71 and 72 not moved.]
  Baroness Hanham Baroness Hanham moved Amendment No. 73:
  Page 11, line 11, leave out "considered by him to represent" and insert "confirmed by them as representing"
  The noble Baroness said: I shall not dwell long on Amendments Nos. 73 and 74 either. They are designed to test the Government's thinking on the extent to which the Secretary of State should let other interested bodies decide who represents them. The amendments would introduce an objective test for the representatives of employers and employees who are to be consulted. Rather than a Secretary of State judging who, he thinks, represents each group, why not let the fire service employers, in particular, speak for themselves and decide who they consider properly to represent them?
  The amendments highlight the discrepancy between the Government's rhetoric on choice and the actual practice, whereby the Secretary of State decides to whom he will listen. I beg to move.
  Baroness Turner of Camden: The amendment seems very well worth considering, particularly in relation to employees. As the Bill now reads, it is as though the Secretary of State decides who the employees' representatives will be, whereas there will in fact be arrangements under the legislation for various groups to be recognised. Therefore, to substitute the wording suggested, particularly in Amendment No. 74, seems more in accord with what is likely to be the situation than leaving the legislation stand unamended. I would like the Minister to give serious consideration to what has been said; I am sure that he will.
  Lord Bassam of Brighton: I am very grateful for the amendment, which gives me the opportunity to get up and talk.

  GC 341
  I want to make it plain that this group of amendments would remove the provision for the Secretary of State to decide who represents the fire and rescue authorities and their employees. The Government have every intention of consulting all relevant parties on the national framework and other matters. For example, in preparing the Draft Fire and Rescue National Framework, we followed carefully the Cabinet Office guidelines for consultation and sought the views of all key fire and rescue stakeholders, including those of all fire and rescue authorities, unions and associations, both directly and via the new consultative bodies such as the practitioners' forum.
  I assure noble Lords that we shall continue to consult widely and thoroughly before making any significant changes to the national framework, such as changing the Government's priorities and objectives for fire and rescue authorities. Our view is that the amendments, although well intentioned, are unnecessary and will cause delays both in consulting the fire and rescue community—if one can describe it as that—and in implementing fire and rescue policy.
  Amendment No. 73, with its requirement on the Secretary of State to confirm who was representing fire and rescue authorities before any consultation was carried out, would cause delays to the consultation and to the timely implementation of fire and rescue policies.
  Amendment No. 74 could lead to unnecessary confusion over which bodies were recognised as representing fire and rescue authority employees. Splinter groups claiming to represent the interests of fire and rescue authority employees could delay and confuse the process by challenging the Government on the grounds that they had not been consulted. For all those reasons, I respectfully suggest to the noble Baroness that she withdraw the amendments, as they do not help us to conduct consultation in a timely and proper fashion.
  Lord McCarthy: Will the Government think carefully about this matter? We have here something that looks very small but is in fact extremely important. We appear to be tampering with the fundamental principle that those who are represented choose those who represent them. It is an absolutely fundamental principle of democracy that one does not tell people who is going to represent them. Those who sit on the other side of the table, whether they are employers or workers, are the people who are chosen by the people whom they represent. A phrase that says,
  "considered by him to represent"—
  in other words, the Minister, is not compatible with the simple democratic principle of representation. It is the people who are being represented who should choose the representatives.
  In these two amendments, the principle comes in a fairly modest form. However, when we come later to Amendment No. 108, we shall see it in relation to negotiation and the unions recognised for that
  GC 342
  purpose. In the form that it is in the Bill, the Secretary of State once again appears to be absolutely free to decide whom he likes.
  The principle is very important, and I ask the Government to consider whether they can move a little bit towards a sensible and reasonable position.
  Baroness Hanham: I resent slightly the rather patronising tone in which we were told that the amendments were well meaning. They are not well meaning at all but utterly designed to ensure that the Secretary of State talks to the people to whom he is meant to be talking, if discussions have to take place. Should we allow this provision to go through on the framework, which is a very important aspect of the layout of the fire and rescue services? The proposal that the Secretary of State should decide willy-nilly whom he speaks to—so that he decides who represents whom—is astonishing. If we allow it to go through here it will go through in other parts of the Bill as well. There will be other aspects.
  As the former leader of a local authority, if I were faced with the Secretary of State deciding that the people who represented my local authority were the opposition, I would be cheesed off. That is inherent in the proposals. It is precisely what would happen. The Secretary of State, if he wished, could bypass any representative group that had been chosen by the fire and rescue authorities and by employees to represent them.
  Our amendment says that the Secretary of State must, at least, have it confirmed to him that the people to whom he is talking are representative. It would be a modest amendment, which would ensure that the Secretary of State cannot just go off on a frolic of his own. It would mean that the employees must confirm that the people to whom the Secretary of State is talking are their representatives.
  I am sure that the Minister will say that it will never happen, but we cannot go through the legislative process saying, "That will never happen". It would cause enormous tension, if the Secretary of State were able to do what is suggested. Given a difficult and tendentious situation, it might seem to the Secretary of State that it would be an easy route out to talk to somebody who was not totally involved with the fire authority or with the employees.
  I hear what the Minister says. I am not happy with the reply, and I am less happy about the amendment being described as well meaning. It was not well meaning but was, I hoped, rather pertinent. For today, I shall withdraw it, but we will have to return to the matter. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 74 not moved.]
  Baroness Hanham Baroness Hanham moved Amendment No. 75:
  Page 11, line 16, leave out subsection (6).
  The noble Baroness said: In moving Amendment No. 75, I shall speak also to Amendment No. 78. I shall not move Amendments Nos. 76 and 77. The main amendment in the group is Amendment No. 78. It is

  GC 343
  designed to address what appears to be the democratic deficit in the scrutiny of the framework document. I shall speak to Amendment No. 78 at some length.
  I need speak only briefly to Amendment No. 75. It is consequential to Amendment No. 78 and would remove from Clause 21 the current provision for laying the framework before Parliament.
  The purpose of Amendment No. 78 is to ensure that a document as important as the framework is brought before Parliament and receives the proper degree of scrutiny, before taking its final form. The framework tells fire and rescue authorities how to organise the discharge of the functions conferred on them by the Bill. It sets out what they are and are not allowed to do; when and how they are required to devolve their functions upward to higher bodies; and the guidance that they should accept from Secretaries of State. That will affect all fire authorities considerably.
  The framework is too important a document for us to leave it to the administrative convenience of the Office of the Deputy Prime Minister to trump Parliament's role in holding the executive's policy to account. I am equally unpersuaded by two other arguments. One is that the framework is a working document and that therefore it is inappropriate for it to come before Parliament for its approval. The other is that because the Government have done with the National Policing Plan what they propose to do with the framework, such a procedure is therefore acceptable. Two wrongs do not make a right. Those are unsatisfactory arguments because they do not address the principal concern of Amendment No. 78.
  The Government must find a way to allow for more scrutiny of the national framework. I hope that the Minister will be able to accede to our proposal for a simple measure of parliamentary scrutiny of what will be an extremely important document. If the framework will not amount to a micromanagement plan for every nominally independent fire and rescue authority, the Minister has nothing to fear from allowing parliamentarians an opportunity to consider the framework in its final form.
  I appreciate that I have probably pushed the Minister into a problem by not moving Amendment No. 77. It was an alternative to Amendment No. 78 and is a lesser test. I may wish to return to it, but today Amendment No. 78 is the substantive amendment. I apologise for not giving the Minister earlier warning. I beg to move.
  4 p.m.
  Lord Rooker: It is all right; the noble Baroness need not apologise. I used to learn those little tricks of the trade in the other place. I shall concentrate on Amendment No. 78, as that is clearly desired. Of course the noble Baroness is at liberty to return to the other issues at a later stage.
  Amendment No. 78 would introduce a requirement for a statutory instrument before the national framework can take effect. That requirement would not alter the status of the framework. As I said in my original statement, its legal status is guidance. By its
  GC 344
  nature, a national framework should provide strategic leadership, hence the inclusion of subsection (2)(a) in Clause 21, which provides that the Fire and Rescue National Framework must set out clear service priorities and objectives for fire and rescue authorities.
  As I have said, not only Sir George Bain—I do not want to wind people up, but he and his team did a very good job—but also the Office of the Deputy Prime Minister Committee in the other place recommended that the Government should provide strategic leadership for the service. The first recommendation of the Select Committee was quoted in the other place, but it makes the point so well that it is worth repeating, at least in part:
  "The Service needs strong political leadership [from the government] to ensure successful implementation and management of change during a potentially very turbulent period".
  The framework is designed to provide that leadership, but that is not its only purpose. To be effective as a manual the framework should also include guidance on all aspects of government fire and rescue policy and reference to good practice as it develops. It should also include the capacity support measures that the Government will provide to fire and rescue authorities, and other useful information; for example, the independent performance assessment measures that the Audit Commission is implementing.
  Ultimately, the Fire and Rescue National Framework would be a significant tool in driving forward the modernisation agenda, which is required to ensure that we have an effective fire and rescue service that saves more lives—that is what we are about. It is imperative that there are no unnecessary obstacles to delivering that agenda. But the requirement for a statutory instrument before the national framework can take effect would mean unnecessary delay and uncertainty.
  On the framework itself, the Government must support the business requirements of the fire and rescue authorities, particularly through a period of such great change—nobody denies that this is great change. For that reason, we intend to publish the framework in time for the start of authorities' budget-setting and business-planning rounds. Unnecessary delay and uncertainty before the framework has effect would be entirely unhelpful.
  Furthermore, any guidance that updated policy would be issued as a revision to the framework, so that authorities and the Audit Commission were clear about our expectations. For example, we will provide guidance to ensure that medical criteria for appointment and retention comply with forthcoming changes to the employment provisions of the Disability Discrimination Act 1995. Under new Clause 1, all guidance issued on that basis would require a statutory instrument before having effect. The delay and uncertainty that would result from the requirement for a statutory instrument for each new piece of guidance would again be to the detriment of the smooth and efficient running of the service.
  But—it is a crucial "but"—we accept that Parliament has a role in scrutinising decisions relating to fire and rescue policy. It is not Parliament's job to run the fire

  GC 345
  service; let us get that absolutely clear. Acting as the eyes of the nation and watching the taxpayer's pound and the conduct of policy is a crucial role for Parliament. The Government must be, as they want to be, accountable to Parliament in the normal ways. We have ensured in the legislation that, if the Secretary of State proposes to enforce a measure in the framework by exercising the intervention powers in Clause 22, the order-making process will be subject to parliamentary scrutiny. In other words, the Government's action in that sense should certainly be subject to parliamentary scrutiny.
  There is already a good example of how that would work with the National Policing Plan. The Police Act 1996, as amended by the Police Reform Act 2002, requires the Secretary of State to prepare a National Policing Plan, but there is no requirement of a statutory instrument for the plan to take effect. The Secretary of State must lay the plan before Parliament.
  I assure Members of the Committee that we have included in the legislation a requirement to consult in preparing the framework or if making significant revisions to it. Our intention is to consult widely, as we have done with the draft national framework, and Members of both Houses would have the opportunity to comment during that process. I remind the Committee that the Delegated Powers and Regulatory Reform Committee did not make any comments about the level of scrutiny attached to the powers conferred by either Clauses 21 or 22. I realise that I am jumping the gun, but I wish to draw noble Lords' attention to Clause 24, which requires the Secretary of State to report to Parliament from time to time.
  If necessary, I shall go through the details of a delay that a statutory instrument would cause, but, given the expertise in this Room at present, I do not think that I need to. If anybody wants me to delineate how the 40 days would work, I will be happy to do so. Where the Government have taken action and the Secretary of State is making a move to use his powers, he will have to get an order through both Houses of Parliament. Therefore, at that point, we get the absolutely vital parliamentary scrutiny. Scrutiny should take place at that point, not in an order bringing in what is in effect the national framework—it is guidance. I understand what will flow from the guidance. If it emerges that the Secretary of State needs to take action, he will necessarily come back to Parliament.
  Baroness Hanham: I thank the Minister for his reply. We have before us the draft Fire and Rescue National Framework. I understand that it may be altered as a result of recently completed consultation; however, by and large, it is the draft national framework. It would be impossible during the passage of the Bill to discuss the entire contents of the framework, but before the next stage we may have to look at its contents so that we can have a proper debate on it.
  The framework will be the blueprint for how the fire and rescue service is to be run. Even the draft framework is quite prescriptive; there are quite a lot of provisions that the fire and rescue authorities will not be able to
  GC 346
  wriggle out of. They will have to do all sorts of things. Although, I am sure, a good deal of effort has gone into the draft and there has been a lot of consultation, it sets up virtually a new service, as we are constantly told, with different parameters and responsibilities than were apparent under the 1947 Act.
  I see no reason why the framework should not, certainly in its first stages, come before Parliament so that we could debate it properly, once the consultation is finished and before the framework is issued. That would be possible if we arranged for a debate on the framework, but it would not be quite the same as the sort of scrutiny that we envisage: an order before Parliament. The process could not delay progress much. Consultation has taken several months, and it will probably take another couple of months to consider the results and put them together, so it is not an absolutely galloping process. It seems strange that at the end of the process an order could not be laid on a time scale that would enable Parliament to look at what was finally proposed.
  If amendments will be made to the framework later on, they will presumably be of significance, as that will mean that something in the framework is not working, or needs to be added or taken away. Again, that would be relevant to the Bill. I am not happy with the reply—
  Lord Rooker: I clearly want to come back on the matter, although I think that the noble Baroness is at the point where she says that she is not happy so will withdraw the amendments and come back to them. I was shaking my head when she was speaking.
  Baroness Hanham: I noticed.
  Lord Rooker: I shall explain why. I did not disagree with everything that the noble Baroness said, but the framework will and must reflect the partnership working between the Government and the fire and rescue community. We see the framework as a contract embodying the partnership approach to reforming the service. It has to be a document that will evolve over time; that is why I was shaking my head, because she was being too prescriptive by saying that we had missed something out and wanting to add something. It will evolve from the work of the fire and rescue community. There will be full consultation before we publish any framework or any significant changes made to it. As I said, Members of both Houses and the relevant Select Committees will be able to comment on the framework at that stage.
  The framework and any significant changes made to it will be laid before Parliament and, as I indicated on Clause 24, the Secretary of State will report to Parliament on the extent to which the fire and rescue authorities act in accordance with the framework, and on any steps that he takes to ensure that they do. One has to ask what the role of Parliament is. It is not to write and manage the detail of the public service; we are not qualified to do that. Parliament's role is to make sure that the overall conduct of policy is right and that the Government have been absolutely scrutinised. That is what I humbly submit that we are offering in the way in which we have drafted the Bill.

  GC 347
  The noble Baroness obviously remains unhappy; we can come back to the matter at a later stage. However, we expect the framework to evolve over time as we work with our partners in the wider fire and rescue community. There will inevitably be changes, but that is not the sort of thing that justifies a statutory instrument.
  Baroness Hanham: I would be happier with that reply if the Minister had accepted the previous amendment. Had he done so, we would know that the Secretary of State was talking to the people who were in a position to respond about the framework. However, he did not do that, and under this provision the Secretary of State might not be talking to the relevant or authorised people agreed with representatives.
  I accept that, where there is guidance and a framework, Parliament cannot get totally involved in the detail. However, it is perfectly reasonable for Parliament to scrutinise what will be included in guidance under the framework. It is an extremely important document, which will become more important as time goes on. There should be some opportunity for Parliament to look at it, and we need to discuss the matter at a later stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 76 and 77 not moved.]
  Clause 21 agreed to.
  [Amendment No. 78 not moved.]
  Clause 22 [Intervention by Secretary of State]:
  Baroness Hamwee Baroness Hamwee moved Amendment No. 78A:
  Page 11, line 23, after "failing" insert "significantly"
  The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 80A. Both amendments deal with the same line, and it is such a contentious clause that there are another two amendments to the same line in between mine. My amendments would apply the term "significantly" to a fire and rescue authority failing or likely to fail.
  I am aware that the Local Government Act 1999 uses similar language. It does not refer to "likely to fail" but to "complying with the requirements of the Act". In this case we are talking about the Secretary of State's powers to intervene if a fire and rescue authority fails or is likely to fail to act in accordance with what the Minister has just confirmed is guidance; it is not a document approved by Parliament.
  I am sure the Minister will say that, as a matter of common sense, the Secretary of State will not leap in and make an order under Clause 22(2) unless there is a very good reason for doing so. I accept that observation, but I believe that there should be legislation to reflect it.
  Clause 22(2) uses very blunt language—"do something"; "stop doing it"; "do not do it". The criteria that the Committee considered in the previous clause, which are also set out in Clause 22(3), are so wide that the Secretary of State can say "do something" or "do not do something" quite trivial.
  GC 348
  For example, he could say, "You are not having the cheapest window cleaning done. That has an effect on how economically and efficiently you are carrying out the rest of the service". I take almost as extreme an example as having fire stations at the end of every road.
  While moving the amendment—this is relevant—perhaps I can ask the Minister to list all the intervention powers that the Secretary of State has. As I understand it, as well as this legislation, the 1999 Act applies to fire and rescue authorities as "best value" authorities. So there is a parallel set of activities that the Secretary of State can undertake. It would be helpful to know what they are and to have them listed in compendium form.
  The amendment is designed to ensure that the Secretary of State can say "stop" or "do" only if the failure is significant. I beg to move.
  4.15 p.m.
  Lord Rooker: It is fairly obvious that Clause 22 is, by and large, one that we do not want to operate: it is a back up; a long stop. It is legitimately there, but it is not for day-to-day or month-to-month management by the Secretary of State. He does not want to get involved because he does not want authorities to fail. These are basically last-resort powers. "Last resort" means that you almost have a crisis on your hands because others tried to sort it out in the first place. We intend to use the powers in Clause 22 only as a last resort.
  In those circumstances, their use must be proportionate and based on some evidence—otherwise people could run to the courts and ask for a judicial review, claiming that the Secretary of State is acting in an unreasonable fashion. That is why I reject the example given by the noble Baroness.
  The different kinds of evidence that may be used to justify intervention in a failing authority is set out—I made this point on an earlier amendment—in the local government intervention protocol, which we have stated we will adhere to. So there is no secret about the factors that will be taken into account. These include audit of local performance plans, Audit Commission inspections of fundamental reviews, inspection reports, public interest reports, reports of inquiries, ombudsman investigations or judicial findings and concerns raised about serious danger or harm to the public. All those, or one or more of them, would be a means of providing evidence that might give sufficient reassurance that there are grounds for intervention without adding the word "significantly" to the Bill. That is the point here.
  The amendments could be seen to be vague because someone must decide what constitutes a significant failure. That in itself could be the cause of people running to court, which is not a useful use of anyone's time or of taxpayers' money. Independent evidence contained in the local government intervention protocol—which is already agreed, it is not something that has just been dreamed up—is a more concrete basis for that decision.

  GC 349
  As I have said, these are long-stop powers. I agree with the noble Baroness that in terms of using plain English, the parliamentary draftsman has really surpassed him or herself—I think it is a "himself" in this case—in Clause 22(2)(a) to (c). I want to be complimentary. It is made clear: "to do something", "to stop doing something", "not to do something". He has surpassed himself in the use of plain English; no one could argue with that. In order to operate it and for the Secretary of State to issue those orders, which may not be the result of any ambiguity, he would have to have evidence; evidence that could stand the test of judicial review, if anyone was so minded to pursue it. Therefore he would require information and evidence based on the operation of the local government intervention protocol. We do not wake up every day, month, or year thinking, "How can we interfere with local government?". That is absolutely true. These are "last resort" powers that would be used in what would be considered to be the most extreme circumstances. Therefore I cannot accept the amendment to insert the word "significantly".
  Baroness Hamwee: I think that I shall be quoting some of those remarks at a later stage. I accept that the Secretary of State would have a mind to whether any decision taken under this clause might be open to challenge. Similarly, any fire and rescue authority seeking to challenge whether a failure was significant, if the term was included, similarly would think carefully about whether it wanted to do something as extreme as going to court to say, "Stop the Secretary of State telling us to stop doing something". Putting it bluntly, I would rather my money were on the fire and rescue authority. I am not surprised by the response, but I thank the Minister for spelling out the position so clearly. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 79:
  Page 11, line 23, leave out ", or is likely to fail,"
  The noble Baroness said: This is a simple amendment that is probing in nature. As we know, Clause 22 lays down the circumstances in which it will be in order for the Secretary of State to intervene. We have just discussed that. We know that it will apply only in exceptional circumstances, and the Minister has confirmed that today by calling it a "long-stop power". The fire and rescue authorities must have regard to the framework in carrying out their functions.
  As the Bill stands, there is a substantial element of uncertainty. The Secretary of State may intervene if he considers that the authority is failing to act in accordance with the framework. That is perfectly understandable. Why, then, include "or is likely to fail"? How is that to be interpreted? How does the Secretary of State know that the authority is likely to fail? Is his office somehow equipped with a crystal ball? It would be much simpler if the words were left out altogether so that at least there would be an element of
  GC 350
  certainty here. If it states simply "or is likely to fail", that is open to wide interpretation. I suggest that it be removed. As I said earlier, this is a probing amendment. I beg to move.
  Lord Rooker: I concur fully with my noble friend. There must a good reason to have these words in the Bill. I hope that I can make a couple of points sufficient to allay her fears. She has raised a legitimate point. I wish that we had a crystal ball or tea leaves in the Office of the Deputy Prime Minister, given some of the things that cross our desks from time to time. We could do with it. We might be better off using a crystal ball or tea leaves—but I shall not go down that road.
  Clause 22, as I say, is drafted in precise language. It allows the Secretary of State to intervene in two sets of circumstances. My noble friend has picked the second set; namely, where an authority is "likely to fail" to adhere to the framework. The power to intervene if an authority is likely to fail is important. The powers are necessary to safeguard the public interest. For example, there may be circumstances in which it is immediately apparent that a fire and rescue authority does not have sufficient capacity and the resources to deal with a large-scale incident in its area. In those circumstances, it is vital that the Secretary of State has the power to intervene to rectify the situation at the earliest opportunity.
  I hope that the point I am about to make will be the safeguard sought by my noble friend. Occasions for the use of the powers will be rare, and any intervention using them will be based on evidence and will comply with the principles of the local government intervention protocol. I did not go into the detail of this before. The protocol requires authorities to agree a recovery plan with central government in the first instance. The powers of compulsion will be used only as a last resort. In other words, if an authority is thought likely to fail and the Secretary of State wants to use his powers, the fire authority will, we hope, take cognisance of the fact that the Secretary of State has good reason for doing so.
  The idea is to get a recovery plan to bring the authority up to scratch, so that the powers of compulsion will not be needed. There is no question of the Secretary of State waking up one morning, picking on a fire authority because he has heard dodgy rumours about it being unready to do something and going straight in with an iron fist. It will not work that way. It will be pointed out to the authority that something is amiss, and in the first instance it will be asked to agree a recovery plan with central government. The powers of compulsion will be used only as a last resort.
  If there is an urgent need for intervention, the protocol we will work with allows the Government to issue directions to authorities before they have had the opportunity to rectify the situation themselves. I have no example of that. It could be a threat to the safety of the public or to firefighters, but I have no examples and I do not want to dream them up, as I do not want to put ideas into people's heads. People are not seeking to do that. However, the intervention would take place

  GC 351
  only in the most extreme circumstances. The first call under the protocol is to get a recovery plan to bring the situation up to scratch, so that the powers are not needed.
  I hope that that is a sufficient safeguard for my noble friend, who has probed us on why the words are in the clause in the first place.
  Baroness Hamwee: I realise that I might be trespassing on the next amendment, but I wonder whether, before the next stage, the Minister could produce some examples relating to the framework rather than to the functions set out in Clauses 6, 7 and 8. His examples seem to fall squarely into the area covered by the three clauses beginning with the words,
  "A fire and rescue authority must make provision for".
  We are talking about authorities being likely to fail to have regard to and implement the framework, which is different from being likely to fail to exercise their functions.
  Baroness Turner of Camden: I thank my noble friend for that explanation; it has cleared up a number of our concerns. In particular, I note what has been said about the protocol and the fact that there will be proper safeguards against intervention where it is not really necessary. On that basis, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  4.30 p.m.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 80:
  Page 11, line 23, leave out from "failing" to end of line 24 and insert "to discharge its functions under sections 6, 7, 8 and 9"
  The noble Lord said: The noble Baroness, Lady Hamwee, spoke to my amendments in the debate on the previous amendment, and the first part of this amendment is particularly relevant to the one moved by the noble Baroness, Lady Turner. However, I shall still speak to my amendments because we must continue to explore this very important area during this stage of the Bill.
  These amendments seek to address the Secretary of State's power to act where an authority is failing. Amendment No. 80 seeks to remove from subsection (1) the reference to an authority that "is likely to fail", as did the amendment of the noble Baroness, Lady Turner. It is not unreasonable that the intervention should take place after the offence has occurred, but not when the Secretary of State thinks that it might occur.
  Together, these amendments would remove references to acting,
  "in accordance with the framework"—
  a point made by the noble Baroness, Lady Hamwee—and substitute them with references to authorities discharging their functions under Clauses 6, 7, 8 and 9. If an authority is properly discharging its core functions it would be wholly inappropriate for the Secretary of State to intervene because it was not complying with all the requirements of the framework in relation to human resource issues or employment
  GC 352
  practices. If we do not limit the Secretary of State's powers to intervene to cases where there has been a clear failure to discharge statutory functions, the concept of local accountability and autonomy will become meaningless.
  Amendment No. 81 would amend Clause 23 by again replacing the reference to compliance with Clause 21 with a reference to the authority discharging its functions under Clauses 6, 7, 8 and 9. Amendment No. 90 would require the Secretary of State, before he takes any interventionist action, to consult the bodies representing fire authorities in regard to any code of conduct relating to such action.
  We are attempting to limit the possibility of intervention to a "last resort", the term used several times by the Minister. I am aware that both the Local Government Association and the Improvement and Development Agency for Local Government have done significant work in this area and it seems strange not to involve them as a first point of call when a fire authority was considered to have failed rather than sending in storm troopers from the ODPM with all guns blazing. We hope that the amendment will encourage discussion as a first step rather than the more antiquated measures that I suspect the Minister would like to see.
  The amendments are necessary to preserve the autonomy of fire and rescue authorities and to ensure that the draconian powers granted to the Secretary of State under the clause, which will be exercised under the best value audit system, will not be imposed on authorities merely for failing to comply with the national framework, but according to the much more important question of whether they are discharging their statutory functions in relation to fire, road traffic accidents, fire safety or any other duties that the Secretary of State might prescribe under Clause 9. That should be the test of whether intervention is required. I beg to move.
  Baroness Hamwee: I apologise to the noble Lord for trespassing on his amendment; it was not neatly pigeon-holed. The clause allows the Secretary of State to intervene—albeit subject to the code and so on—if an authority fails, or is likely to fail, to act in accordance with the framework. But in the previous clause fire and rescue authorities are not required to act in accordance with the framework, they are required to have regard to it. They may quite properly consider a part of the framework and say "No, we do not agree" for very good reasons. It seems to me that those two issues do not lie entirely comfortably together.
  Lord Rooker: I have to say, it takes a lawyer to say that. As I said earlier, the framework is guidance. I gave three or four examples of the national guidance being clear and unambiguous but the application of it being subject to the local circumstances. Authorities are required to have regard to the guidance. It may be that one fire authority will have regard to the framework and arrive, because its circumstances are different, at a different conclusion to a neighbouring authority.

  GC 353
  The noble Lord referred to the "storm troopers of the ODPM", which was the first time I had heard that phrase. We do not have any storm troopers in the ODPM. He put forward the idea that such storm troopers would go in there simply because one authority decided to do something differently at its level, because its risk management in its area was different. The fact is that those two neighbouring authorities would have had regard to the framework after doing the initial work, and that is fine.
  The amendment gives me the opportunity to reinforce what I have already said. Genuine points have been made, but there is no desire for us to intervene. We would rather fire authorities fought fires and prevented them and gave us a quiet life. It is not the ODPM's desire to be involved in that way.
  The noble Lord, Lord Hanningfield, made the point about removing the powers of the Secretary of State to intervene. The amendments propose that the Secretary of State takes powers to intervene only when fire and rescue authorities are failing to fulfil their core duties under Part 2 of the Bill. That is an unnecessary and misconceived approach. Fire and rescue authorities will be under a legal obligation to make arrangements for the discharge of their statutory functions under Clauses 6 to 9. They are answerable in public law if they are found to be in breach of their statutory obligations and could be subject to judicial review.
  Fire and rescue authorities are best value authorities and therefore subject to the provisions of the Local Government Act 1999, which empowers the Secretary of State to issue guidance and set standards, to make directions and make provision to provide for the performance of functions. It is precisely because the national framework goes wider than the local delivery of core functions and sets out national and regional performance expectations of critical functions, such as regional control rooms, that the intervention powers provided in Clause 22 are necessary to supplement those available under the existing best value regime. That is the sequence of events: they are best value authorities but the framework itself goes wider than the core function. That is why it is necessary to have the provision.
  We want to ensure that the national framework retains the flexibility to evolve as the process of modernisation within the fire and rescue service changes and progresses. If intervention powers are tied to functions written into the legislation, we will lose the scope for change and development within the service as the measures within the framework take effect.
  The framework also gives practical and current guidance on how authorities should exercise their core functions. It therefore deals with the detail of what the service needs to do to promote public safety and economy, efficiency and effectiveness. It will therefore be essential that the Secretary of State can, if need be, ensure that the practical measures outlined in the framework will be implemented. We therefore need the reserve powers—I emphasise that they are reserve powers.
  GC 354
  Amendment No. 90 would, for example, require the Secretary of State to have regard to the local government intervention protocol or other agreed protocols or codes of conduct when exercising his powers under Clause 22 to intervene to enforce the national framework. I have already stated that we have every intention of adhering to the spirit of the local government intervention protocol that was agreed with the LGA in exercising the new powers of intervention. I am advised that the protocol has worked well and has wide support within local government, but we do not believe that it is necessary or desirable to place a specific process on the face of the legislation.
  I assure Members of the Committee—and this is a theme of this Bill as it was with others—that in all but the most urgent cases, the Government will discuss fully and agree a plan of action with an authority that they consider is failing, in the first instance. The Government or Secretary of State cannot operate on a hunch or a prejudice. Government cannot work that way in this country. Intervention powers will be used as a last resort. Any intervention will be based on evidence, and authorities will have ample opportunity to make representations before any powers are exercised.
  Here are some examples of where we could use Clause 22 powers not covered in Clauses 6 to 9: in regional control rooms, which is a crucial component of the resilience programme; regional training facilities, to ensure that training was delivered as efficiently as possible; and provision of specialist services at regional level, such as fire investigation functions. Those may evolve over time. They are examples of something not covered by Clauses 6 to 9. It also seems unlikely that the Secretary of State would not have regard to an agreement that he is party to. There is a partnership arrangement between the Government and the fire authorities.
  My explanation may not fully dispose of everything, and no doubt we may return to these matters at a later stage. However, I cannot appear or sound more genuine than I have tried to in responding to these amendments.
  Lord Hanningfield: The Minister ruined his case by bringing in regional stuff at the end. Regional training would be a retrograde step. I have never heard anything so daft in all my life as the suggestion that regional training would benefit the fire service. Perhaps there might be a benefit to regional control rooms, if they were set up wisely with other services, but it is much better to have sub-regional than regional training.
  Lord Rooker: Do not use the word "regional", in other words.
  Lord Hanningfield: Yes.
  One thing that the Minister did not mention at all in this discussion, although we mentioned it at an earlier stage, is the case of a failing authority and the CPA process. We all accept that if an authority is failing,

  GC 355
  something must be done about it. However, we have a CPA process whereby local authorities are judged and by which fire authorities will be judged and categorised. There is a system within the CPA whereby, if fire authorities are categorised in the same way as local authorities, they will be "fair" or "poor" if they are towards the lower end. With the Audit Commission and the LGA there is a self-help system.
  Where we have problems, and where other Members of the Committee may have problems, is with the "likely to fail" categorisation. It could mean anything. No one would dispute that the Secretary of State should intervene if there were a totally failing authority, but what is "likely to fail"? The Minister did not refer at all to the CPA process. Whatever we think of that process, it identifies weaknesses in authorities and gives them an opportunity to rectify them. This part of the Bill seems to have been written two or three years ago, before we had what we have now.
  I am still not happy at all. Can the Minister respond to my question about the CPA process, which will help the poorer authorities?
  Lord Rooker: I cannot, except to say that it just goes to show what a last resort power this is.
  Lord Hanningfield: Why have it, then?
  Lord Rooker: Because we need a last resort power. The point is that things might go wrong, and we do not want to be in a position where we are told, "You saw this coming and you did nothing about it", because there were no back-up powers, notwithstanding the CPA. In other words, these are remote last resort powers, but we still believe that it is in the public interest to have them. They are not for the first or second resort but for the last resort.
  Lord Hanningfield: I should think that we shall have several more discussions in this area in the passage of the Bill. However, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 80A and 81 not moved.]
  4.45 p.m.
  Baroness Hamwee Baroness Hamwee moved Amendment No. 81A:
  Page 11, line 29, at end insert—
  "and shall publish his reasons"
  The noble Baroness said: I realise that anyone—if there is anyone—who reads Hansard may wonder why we are making such a fuss about this issue. However, I should like to remind myself, at any rate, that this is not theoretical; the situation that the Minister has in mind could be very extreme and I, for one, do not argue that the Secretary of State should have no intervention powers at all. We are talking about safety and the prevention of some terrible things happening. However, the functions are to be carried out by democratic organisations. There are very good reasons for their structure and why they should be local organisations. I do not know whether the Minister will say, "Only a lawyer would say that", but we are making law.
  Amendment No. 81A would require the Secretary of State, if he makes an order under Clause 22, to publish his reasons. Clause 22(4) requires the Secretary of State to give an authority the opportunity to make representations before the order is made. A moment ago the Minister said that this would be "in all but the most urgent cases". I might regret saying this if it leads to "in all but the most urgent cases" being added to the clause but, as the clause stands at the moment, in every case the Secretary of State has to give an opportunity for representations to be made. There may be clauses elsewhere under which he can take urgent action and then talk about it afterwards.
  The authority may make representations; then the Secretary of State may issue an order. I am sure that in any normal circumstances the authority would be told the reasons why an order should be made. In the planning Bill, the Minister was persuaded in one or two places that the Secretary of State should give reasons; in this case, the authority should be told the reasons. It is a matter of public interest if the Secretary of State intervenes, and his reasons for doing so should be on the record. I beg to move.
  Lord Bassam of Brighton: I rather like reasons. Going back to the dear old Planning and Compulsory Purchase Bill, I thought we had a useful debate about reasons. Probably Hansard readers will not be alone in being attracted towards the amendment; however, we do not think it is necessary or required. We simply do not understand the need for it.
  Clause 24 requires the Secretary of State to report to Parliament on,
  "any steps taken by him for the purpose of securing that fire and rescue authorities act in accordance with the Framework".
  This will have to include the details of any intervention he has made in a fire and rescue authority and the reasons for any action taken. Even without that clause, the order made under Clause 22 will have to specify what the fire and rescue authority is or is not doing—its acts or its omissions—and give a clear indication of the reasons behind the Secretary of State's intervention.
  However, Clause 24 in itself should be ample reassurance that the use of the intervention powers will be transparent—as well as used sparingly—and that Parliament will have ample opportunity to scrutinise the Secretary of State's actions in using them. We believe that the point made about the need to give reasons is already covered in the legislation. The Secretary of State will have to be transparent in explaining why he has found it necessary to make an intervention.
  Baroness Hamwee: I am grateful for that explanation. I had been thinking of something more specific than Clause 24 as I read it before the benefit of that explanation. It seemed to be drafted in quite general terms. I shall think about what has been said. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Hanham Baroness Hanham moved Amendment No. 82:
  Page 11, line 32, at beginning insert "firstly,"
  The noble Baroness said: Amendments Nos. 82 to 85 go back over the ground covered by the amendments tabled to Clause 21. They would ensure that the Secretary of State's intervention is permitted only where it is in the interests of the promotion of public safety, or on another ground, but only to the extent that pursuing it is not detrimental to the primary objective of pursuing public safety. Without that provision there is no protection in the Bill against the Secretary of State deciding to intervene under Clause 22 on the basis of economic arguments rather than public safety arguments.
  That makes a mockery of the Government's repeated assurance that the modernisation programme is about saving lives not money. In that regard, Clause 22 seems even more important than Clause 21, as it applies if the Secretary of State is intervening because of a failure or potential failure of an authority. Our amendment would ensure that, in the first instance, the failure was measured in terms of people's safety before making the economic considerations. I beg to move.
  Lord Bassam of Brighton: There is a very short explanation for why we think the amendment is unnecessary. It seeks to specify the order and weight of consideration that the Secretary of State must give to the criteria on which he will decide to exercise the intervention powers set out in Clause 22. Rather like the amendments to Clause 21, they are unnecessary and remove the Secretary of State's flexibility to respond effectively to a wide range of circumstances. The Government have made clear that public safety will usually be their principal concern in intervening in fire and rescue authorities. Obviously, we give that reassurance again. For that reason, we do not think that it is necessary to specify that in the legislation. We cannot see the benefit of that, as it is clear why we think there should be a power to intervene, and the terms on which an intervention will be made.
  Baroness Hamwee: Having listened to that exchange, I realise that it probably covers the same ground as my Amendments Nos. 83A and 84A, which I shall not move. If the Minister has anything extra to say on my amendments, perhaps he could do so now, as they deal with the same point.
  Lord Bassam of Brighton: I am happy to respond to Amendments Nos. 83A and 84A, if the noble Baroness wishes. I agree that it would be a more intelligent way of grouping the amendments, as they deal with the same issues. I have a rather longer explanation, so the noble Baroness shall have to bear with me.
  Amendments Nos. 83A and 84A would limit the power of the Secretary of State to intervene under Clause 22. In any event, the Secretary of State may intervene only to enforce the main national framework on public safety, not if he considers that it would promote efficiency, effectiveness and economy—that is the reason for the amendment. We have made clear that public safety is the paramount concern. However,
  GC 358
  part of having a fire and rescue authority that serves the public well is ensuring that a wide variety of its functions, not just those relating to public safety, are efficient and effective. Our overriding wish is to ensure that the public are assured that fire and rescue services are equipped to serve their safety needs and that they represent value for money.
  For that reason, we cannot understand why noble Lords would not wish to provide both those safeguards for the public. We have already said that we expect the use of the intervention powers to be rare, and it is to be governed by the local government intervention protocol. As the noble Lord, Lord Rooker, explained at length, that is how we see things working. The protocol sets out very detailed procedure to be followed when considering intervening in an authority.
  It is perhaps worth reminding the Committee what the protocol says. It provides that a sufficient evidence base must be accumulated before any action is taken; that the form and extent of intervention will reflect the type and seriousness of failure and the need for effective improvement; and, other than in cases of urgency, that there will be a process of agreement with the authority on how it will address any service failure in the first instance. It further provides that intervention powers will be used only if the process fails to deliver the required improvement, and that there will be consultation with the authority concerned on any proposed directions. So there are already lots of safety mechanisms in the intervention process. It must conform to those requirements. That is understood and agreed in local government; I am sure that it is understood and agreed by fire and rescue authorities.
  These amendments take us on to rather narrow territory. In the end, improvements in efficiency and effectiveness will contribute generally towards public safety by ensuring that resources that are appropriate and right are available for those safety priorities. The amendment would not add anything beyond what we have already established and how we see intervention working. Intervention will work only if we conform to that. The history of intervention in locally run public services suggests that that is the right approach. There is probably a common understanding on that.
  Baroness Hamwee: I should apologise to the noble Baroness for intervening, but my amendments seem to cover similar territory. I suspect that she will say that we will have to return to some issues.
  Baroness Hanham: I do not like anybody intervening in my amendments; it is very diverting if nothing else.
  I do not understand why the Government object to the amendments. They are far more than drafting amendments; they would set the standard of promoting public safety without reducing flexibility. They set public safety as a priority that must be considered first, operating within the framework on that basis. It seems that that is very important in Clause 22, as it deals with the Secretary of State's intervention, in that wonderful plain English.

  GC 359
  In the context of Clause 22 it is more serious that the first priority should be public safety, and that it should be the first thing that the Secretary of State considers. For today, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 83 to 85 not moved.]
  Lord McCarthy Lord McCarthy moved Amendment No. 86:
  Page 11. line 38, after "authority" insert "and representatives of recognised unions"
  The noble Lord said: This is a very modest amendment. The Government have failed to provide what we want them to provide, and we are now on the critical clause, where the Secretary of State, whether in the last instance or at some other stage, has legal power to intervene. We are not told how he will intervene, except that he can require an authority by order to do something, to stop doing something or not to do something.
  Quite properly, the Bill says, and the Government accept, that before telling an authority to do something, to stop doing something or not to do anything, the Secretary of State should give an authority an opportunity to make representations. All we are saying is that, at line 38 on page 11, we should have,
  "after 'authority' insert 'and representatives of recognised unions"'—.
  If the Secretary of State tells the employer either to do or to stop doing something, I do not think anyone would argue that this is unlikely to have an impact on the workers. Of course it will. Something is either failing or likely to fail and there will be evidence of that. Something will have to change, and it is likely that there will have to be changes in employment practices, such as in work locations. Perhaps what should be done is being resisted and the Secretary of State wants things to move faster.
  We argue that the first reason why the amendment should be put on the face of the Bill is because, in most cases, when the Secretary of State reaches the point of issuing an order, it will have consequences for the workers as well as for the authorities. Surely, then, workers' representatives should be consulted. But if it is something difficult—and it probably will be, because the Secretary of State would not have moved to the final stage by taking this reluctant power on himself unless it was—he will need co-operation. As the Minister has said, he will want the co-operation of the authorities, but surely he will also need the cooperation of the workers and their representative unions to see whether, at that late stage, a solution can be found.
  The second reason for the amendment is that we would expect the employers to tell the employees, who would want to know, what is going on. They would then be able to co-operate in whatever the Government decide. Strangely enough, if the Government were the employer—they are not in the fire service—it would be contrary to the EU consultation directive not to inform the workers. There is a long list of things that the
  GC 360
  employer has to tell the workers. However, this is a power taken by the Government in an order that they are introducing.
  If the employers are to be consulted and their representations taken into account, surely it is only common sense to do the same for the representatives of the workers. I beg to move.
  5 p.m.
  Lord Bassam of Brighton: This amendment would require the Secretary of State to consult both the fire and rescue authority and representatives of recognised unions before any order using these powers is made. My noble friend Lord McCarthy has described this as a critical clause. In some senses it is because, as he says, the key to changing performance lies in encouraging and working with the employees. After all, they are the service deliverers.
  We do not see the need for this amendment. The national framework sets out the Government's objectives and priorities for fire and rescue authorities. It is a strategic document which deals with the functions of fire and rescue authorities. So we think it is more appropriate, where intervention is necessary because a fire authority fails to adhere to the framework, for that authority to be consulted on the action taken. It should then be the responsibility of the fire and rescue authority itself to consult its employees and their associated unions under those circumstances, and present its views to the Government through the procedure for negotiation set out in the local government intervention protocol.
  Clause 21 specifies that in preparing or making significant changes to the framework, the Secretary of State must consult the employees of fire and rescue authorities. It is at this point that broad consultation is appropriate. However, where an authority is struggling to implement the framework, for whatever reason, any ameliorating action necessary should be decided between the authority concerned and the Government.
  To safeguard the interests of the public it is important that, where a fire and rescue authority is failing, the swiftest possible action is taken to rectify the situation. To consult a range of organisations at that stage is unlikely to be a practical option and there is no similar requirement to consult union representatives in the local government intervention protocol which applies to the existing powers to intervene in fire and rescue authorities contained in the Local Government Act.
  We think that we have taken the best approach here. It is relevant and important for the fire and rescue authority itself to consult its employees directly and for it to reflect back to the Government the views of its employees. We think that that is a better way of dealing with this matter rather than having in operation what one might think of as a parallel process of consultation.
  Baroness Turner of Camden: I have listened with interest to the response of my noble friend at the Dispatch Box, but I do not understand why this amendment is not acceptable to the Government. In a

  GC 361
  situation where the Secretary of State, because an emergency has arisen or there is an exceptional set of circumstances, may need to take action, it is even more important and necessary for the people on whose work the success or otherwise of the venture will depend to be involved. I am rather surprised that the Minister has not taken a more accepting approach to this amendment.
  Lord Bassam of Brighton: I am sure that my noble friend heard me say that we do see the importance of consultation. It is more a question of who should conduct that consultation at particular stages of the process. I used to run a local authority. In terms of organising the management of that authority, it struck me that it was much more important for those close to delivering a service to be able to consult and work with the people providing that service from day to day. It is that closeness of consultation in an arena where management and staff understand each other which is most important, and it is for management to work out, explain and reflect back what changes need to be made. That is how we see this working.
  Lord McCarthy: The Government seem to have a theory about the finite sum of consultation. There is only so much consultation and it has to be done by one group or another. If the authority is doing it, then the Government do not need to do it as well. But there is no finite sum of consultation. You should consult and take representations wherever you can. If the Government ask the authority what the workers think about a proposal, they will not get the same answer that they would be given by the workers. The authority will say what it wants to say. If you want to find out what the workers think about something, you ask their representatives.
  It is no good saying that the unions are consulted when general policies are formulated because here we are talking about something very specific. There have been specific failures in specific authorities. It is for the purpose of ensuring that the fire authority acts in accordance with the national framework that the Secretary of State may, by order, tell the authority to do specific things, or not to do them. Therefore the more people who are consulted in each case, the better.
  If what the Minister told us earlier is true, these will almost certainly be very difficult circumstances. If that were not so, the Government would not be using the law here and introducing orders that will be imposed on the workers just as much as on the authorities. Therefore the more consultation and representation, the better. But the Government seem to believe that there is a finite sum of consultation, and I wish I could say that I am surprised. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McCarthy Lord McCarthy moved Amendment No. 87:
  Page 11, line 39, at end insert "and the terms of such an order shall be the subject of an independent assessment to be published before the order becomes effective"
  The noble Lord said: This is about our old friend, independent assessment. We went into this matter during our debates on the previous Fire Services Bill. My noble friends and I are making again the point that we made at that stage.
  What could happen is very similar to what may happen during the next few weeks or months as a result of the first Fire Services Bill; that is, there will be failure to agree on the changes the Government want to introduce and, eventually, a decision will be taken by the Secretary of State to issue an order which will affect the terms and conditions of employment of the people concerned.
  We argue that before the Government issue an order of this kind, some form of objective assessment of whether what is being suggested is reasonable should be made from a body external to the process. We do not say that such external assessment should be binding. We asked for that on the previous occasion, but we do not say that this time. We say only that the Government are about to introduce a form of legal compulsion and the public should be able to judge whether that compulsion is necessary and whether the terms being introduced by the Government are necessary. In order to achieve that, some kind of independent assessment is needed.
  We leave it to the Government to decide what form the assessment should take. They can say whether it will be conciliation or mediation; there are many different kinds of assessment. But in this difficult area acceptance is much more likely if what the Government are forcing the industry to do is supported by such an assessment than if there is no independent assessment. I beg to move.
  Lord Rooker: My noble friend has moved an amendment that he has repeatedly made clear would require independent assessment before the orders under this clause could become effective. I do not think he has made a case for the desirability of this form of intervention. On numerous occasions we have explained that the primary reason for giving the Secretary of State these powers is to ensure that where fire and rescue authorities are failing, swift and decisive action is taken to protect public safety. I am not sure how that would be possible if, in the event of a crisis or failure, we had to wait for an independent assessment of our proposed action to be written or published before anything could be done. That is just not practical.
  The intervention protocol is crucial because it is not as though there is no system for the Secretary of State to intervene; there is a system. The protocol is agreed between local and central government to ensure that there is an agreed procedure for exercising intervention powers before there is the need to exercise those powers. That of course would reduce any unnecessary delay or concern.
  Lord Hanningfield: Would the Minister allow me to interrupt for a moment? When I inquired about the CPA processes at some length, and stressed the fact that because we have them these powers are

  GC 363
  unnecessary, the Minister did not respond about the intervention protocol. That protocol is based on the CPA process. As the noble Lord has just pointed out, the intervention protocol is an agreement between local authorities, the Local Government Association and the Government on how to use the CPA process. The noble Lord has just referred to the intervention protocol, which, as I suggested earlier, we already have in place. Therefore we do not need the draconian powers proposed in the Bill.
  Lord Rooker: The noble Lord has completely misunderstood my point. Given his stature and importance in local government, he ought to know better. The comprehensive performance assessment will be a very important source of evidence. There is no question about that. But the CPA will take place only from time to time. We shall not need a comprehensive performance assessment to tell us that an authority does not have an adequate control room. We would need to act. Similarly, we must act if it is clear that an authority will not have an adequate control room three months hence, for reasons of public safety.
  The CPA part of the process is not the be-all and end-all. We have a protocol agreed with local government. Parliament should be quite pleased that central and local government have come to a settlement to have an agreed protocol about when intervention takes place. It is very important that one does not start to agree a protocol at the time when one needs to intervene. It needs to be written down and agreed beforehand so that it does not itself become the source of difficulty.
  In any case, the decision to use the intervention powers contained in Clause 22, which we are debating, will be based on the evidence set out in the intervention protocol. I gave an example of where the evidence could come from; it could come from any one of half a dozen sources of independent assessment, so the performance of the fire and rescue authorities is measured, whether through the CPA or other independent studies or audits. We do not see the need for another assessment of the order itself, as the evidence of the necessity for intervention will be already and well and truly in the public domain.
  The intervention protocol is not linked to using the CPA results as evidence for intervention. There are half a dozen other types of possible sources, as I read out earlier under another amendment. The CPA happens only from time to time and is not the be-all and end-all, although it is an important source. I hope that my noble friend will take on board the fact that in order to use the powers in this clause for the purposes in this clause, the Secretary of State will have had evidence from independent sources. One case I mentioned was that of the Audit Commission.
  5.15 p.m.
  Lord McCarthy: Other Members of the Committee got more out of that reply than I did. The fact is that we are trying to get the Government to consider appeals against an authority, particularly when they may
  GC 364
  affect terms and conditions. I shall raise the matter again under the next amendment. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McCarthy Lord McCarthy moved Amendment No. 88:
  Page 11, line 39, at end insert—
  "(5) No order made under this section shall relate to an act done or to be done or not to be done in contemplation or furtherance of a trade dispute."
  The noble Lord said: This amendment takes us back to the arguments that we had under the previous Fire Services Bill. We are getting into a situation under this Bill which we believed we would not have after the sunset clause had appeared and disappeared and the provisions in the last Bill ran out. We argued last time that the power that the Secretary of State was taking to impose orders affecting terms and conditions of employment could modify protected industrial action. We argued that at very considerable length, and I shall not go into it again this afternoon.
  No concessions were made, and the Government did not agree with our interpretation of the law. They said that the right to strike would remain whether or not, under the terms of the 2003 Act, Section 1 produced an order whereby the Secretary of State could modify or fix conditions of service by changing the terms of the contract. They said that that would not affect the protection of the 1992 Act. However, a concession was given in the sense that they said that we were dealing with a short-term emergency. The sunset clause was supposed to die out in November 2005.
  The people involved at the time—the parliamentary Labour Party in the other place—thought that it was a temporary measure that would end when the powers in that Act ended. If the Government disagree with me, I hope that they will say so, but it seems to me that there is a sense in which this Bill creates the same liabilities, dangers and interventions. Therefore our argument is that the Government should take into consideration whether there is a liability as a result of this Bill which is in many ways similar to the liability as a result of the previous Act. One way in which that could be done is via this amendment. This is one of the ways in which the Government could ensure that what they said was the case takes place—that no order made under the clause would,
  "relate to an act done or to be done or not to be done in contemplation or furtherance of a trade dispute".
  That would be another formula. On the previous occasion we put forward a dozen different formulae whereby orders that changed conditions of employment did not give rise to liabilities outside the protection of the 1992 Act.
  But there is yet another way for the Government to honour the pledge and belief that they have which is independent of the previous Act and even the consequences of this Bill. If an order is made under the Bill that instructs an authority to do something and it is not obeyed, or not obeyed to the extent that the Government feel is required, the Government may proceed against the authority. If they proceed against the authority and if the employees decide to take

  GC 365
  industrial action, everything that the Government have told us suggests that they do not believe that the authority should take it upon themselves to dismiss those who are concerned in that industrial action. They tell us that the protection should remain.
  In an attempt to find out whether the Government would do something to make that clear, at least to the authority, I asked the Minister in a Written Question—HL 386—whether the Government,
  "intend to instruct all fire authorities that, when use is made of the powers granted to the Secretary of State under section 1 of the Fire Services Act 2003"—
  and, one could say, under Clause 22 of this Bill—
  "actions by employees or their union intended to frustrate such powers should be regarded as lawful, so long as they remain within the provisions governing protected industrial action".
  If the Government had said that, they would have stated publicly what they say they believe to be the case. They could do that now in respect of this Bill. On that occasion, in a Written Answer to a Written Question, Hansard tells us that the noble Lord, Lord Rooker, Minister of State in the Office of the Deputy Prime Minister, said:
  "Ministers have no powers to instruct fire authorities as to what constitutes lawful action on the part of employees or their unions".—[Official Report, 5/1/04; col. WA 15.]
  That is not quite right. In a situation such as could develop, nobody could say that it was unlawful for a Minister to let it be known that in the Government's opinion that was the law. If local authorities feel that they are being frustrated and wish to carry out an order under an instruction given by the Secretary of State but are being resisted by their workforce, one obvious way for them to act is to dismiss those concerned. They would use their power of dismissal and say, "We don't think what you've done is protected by the 1992 legislation".
  If the Government would write and say that that is not the way in which they read the law, it would not be as good as accepting this amendment—I still recommend that the Committee does so—but it would show some sign that they were prepared to put words down where their beliefs are supposed to be. I beg to move.
  Lord Rooker: Let me make a couple of preliminary points before I respond to my noble friend. For the avoidance of doubt, I must make it abundantly clear that there are no powers in the Bill to impose terms and conditions. I do not want to make a rod for my own back by saying that, but I challenge anyone to tell me where they are. There are no powers in the Bill to impose terms and conditions.
  I challenge my noble friend as to whether he would have said what he has just said in Committee were there to be a Tory government. He has asked Ministers to give a legal view on the law in a trade dispute. Frankly, that is preposterous; it is a recipe for disaster. We are not qualified; the courts are there for that. The legal framework was secured years ago and we cannot go down that route. That is why he received the considered Written Answer that he did. This is not a fruitful area.
  GC 366
  As to the amendment itself, my noble friend wants to make it clear that the Secretary of State could not make an order that in any way interferes with actions in any future trade disputes. We do not believe there is a need for such a "safeguard", as my noble friend would call it. The powers granted in Clause 22 allow the Secretary of State to intervene where the authority fails to adhere to the national framework. This national framework sets out the objectives and priorities for the fire and rescue authorities; it does not dictate procedures that an authority should follow during a trade dispute or industrial action. Hence the powers could not be used to intervene in the way in which a trade dispute is conducted, unless the process is specified in the framework.
  Should any of the key modernisation measures set out in the framework become the reason for an industrial dispute, the fire and rescue authority concerned will be wholly responsible for reaching an agreement with its employees. I have already said that if the fire and rescue authority fails, or is likely to fail, to implement a change that is key to providing an efficient and effective fire and rescue service, the Secretary of State must have the right to intervene whatever the reason for such failure.
  The amendment would create a danger—I use the word with caution—that a trade union could prevent the Secretary of State from exercising his powers to intervene on a particular issue simply by registering it as a point for dispute. That cannot be right, and I cannot see how my noble friend would argue that that would be right. The Secretary of State has been democratically elected, is answerable to the elected House of Commons and it is his duty to safeguard the interests of the public. In a way, the amendment that way round would give a trade union the power to interfere on an arbitrary basis with the exercising of the Secretary of State's power.
  I should make it clear that the Bill does not affect the position of individual firefighters to take industrial action nor any protection from dismissal that that may attract. This is not the previous Bill.
  There are other issues on other clauses to which we will come later. We are only on Clause 22 but, for example, Clause 29 ensures that public safety can be protected during strike action. So we do not need these powers in that respect. However, while Clause 29 ensures that public safety can be protected during specific periods of strike action, ensuring that a fire and rescue authority is efficient and effective at all times enhances the service that the public receive and protects public safety in the long term, and these powers are important in that respect.
  I want to make it abundantly clear, again, that the Bill does not affect the position of individual firefighters in taking industrial action, nor any of the protections from dismissal that taking industrial action may attract. I hope that my noble friend will see

  GC 367
  that his amendment is not needed for the purposes for which he has promoted it. I fully understand why he has promoted it, but it is not needed in the Bill.
  Baroness Turner of Camden: I should like to ask the Minister a question. I noted that he stressed that there are no powers in this Bill to impose terms and conditions. If that is so, why is it not possible to accept an amendment, although perhaps not the one before noble Lords, which states that on the face of the Bill? My noble friend knows full well that there has been a great deal of suspicion among fire service employees about the intentions of the Government. If something were put in the Bill stating that there are no powers under this clause to impose terms and conditions, that would be helpful.
  5.30 p.m.
  Lord Rooker: That would be a disaster. If those who are suspicious are saying to their members that there are powers in this Bill that allow such action to be taken, it is up to them to point out where they are set out. I am saying that there is nothing of that kind in the Bill. By putting into the Bill words to say that there are no such powers would just cause confusion and add to the festering sore that is out there now.
  There are no grounds for suspicion. No one in any position—rank and file, paid official or parliamentarian—can point to anything in this Bill which states that pay and conditions are affected or could be imposed. That cannot happen because it is not in the Bill. To start talking about it simply confuses the issue. It is the kind of obfuscation on which poor quality leadership thrives in these circumstances. People become confused. There are no grounds for confusion. We want precision and clarity here. I repeat: there are no powers in this Bill to impose terms and conditions about pay and working conditions for firefighters and that is it, period.
  Lord McCarthy: I am afraid that it is not. Earlier the Minister praised Clause 22 for its clarity. But that clarity lies in not saying things. Clause 22(2) states:
  "For the purpose of securing that the authority acts in accordance with the Framework the Secretary of State may by order require".
  It does not say that when the Secretary of State requires that something is or is not done that it will have no impact at all on existing conditions or contracts of employment. It is silent on that. The Secretary of State may make an order. We do not have the slightest idea what effect that will have on existing conditions of employment and on contracts of employment.
  If, in order to come into line with such an order, an authority decides that it must change the conditions of employment, and if the workers involved say that they will not take any notice of the change and use industrial action and the employer then dismisses them, he would be doing so because he had not read what the Minister has said in Parliament today. But the boys and the girls would then be out on the stones. They would go to a tribunal. The tribunal would decide whether the protected action under the 1992
  GC 368
  Act works or does not work. I agree with my noble friend. No one can predict what the tribunal would say in those circumstances, and it certainly is not specified on the face of the Bill. That is my response to the first set of arguments made against my amendment.
  The second response is this. The Minister said that it could not conceivably be the case, because he has been said so many times that the current protections in the 1992 Act are not affected. The right to strike in respect of the previous Bill and this one remains inviolate. My noble friend has said so. If that is not pronouncing what the law is, I do not know what it is. The Minister is telling us what the law is here.
  During the previous Bill we said over and over again that the problem was that there is no way of telling what the law says. You can read the statute, but you do not know what the judges would make of it; no one could. Now my noble friend says that it will be perfectly all right on the night. But when I ask him whether he will write to the authorities, if a situation arises under Clause 22, telling them what he has told Members of this Committee, he says that he cannot do that. It is ridiculous: my noble friend can tell us, but he cannot tell them.
  I suggest that we have not had a complete answer to this point. We shall return to it at a later stage. In the mean time, I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 89:
  Page 11, line 39, at end insert—
  "( ) The powers specified in subsection (2) are for use only after consultation with the persons specified in section 21(5)."
  The noble Baroness said: This is a final attempt on the issue of consultation, which we have already discussed. As I said, it is surprising that there is not much wider reference to consultation in this part of the Bill. I note what the noble Lord, Lord Bassam, said in reply to the previous amendments. However, with respect, the situation here is not the same as that which applies in local government. We are talking about extreme circumstances where it may be necessary in a crisis to have the full co-operation of everybody available, particularly at the surface. The amendment would provide that the powers specified in subsection (2) are for use only after consultation with the persons specified in Clause 21(5). I beg to move.
  Lord Rooker: My noble friend said that this was a final attempt; I suspect that that is not the case. We shall have plenty of opportunity to return to the issue later in the Bill or at other stages. As she said, her amendment relates to Amendment No. 86, to which my noble friend Lord Bassam responded. The amendment would require the Secretary of State to consult fire and rescue authorities and their representatives, those who represent employees of fire and rescue authorities and other persons he considers appropriate.
  It is worth repeating on the record that we intend to exercise our intervention powers in line with the Local government intervention protocol, which has already been agreed between the Government and the Local

  GC 369
  Government Association. The protocol sets out a procedure for consulting the authority and the Local Government Association prior to direct intervention by central government—it is important to note that it is prior to direct intervention. The process allows the authority ample time to make representations and to hold discussions with central government. It is the authority's responsibility to represent the views of its employees within the process. We see no need to set up a separate system for consulting employee representatives, as my noble friend asked, when there is no precedent for doing so in local government and when the fire and rescue authority should be amply equipped to represent and reflect the views of its employees.
  Extensive consultation with those outside the fire and rescue authorities concerned could delay the resolution of the problems experienced by that authority. Since the fire and rescue authorities are responsible for delivering a vital emergency service to the public, any delay in resolving problems affecting that service must be avoided. The local government intervention protocol sets out a clear procedure, which has already been agreed, that must be followed should it be necessary to intervene. We would rather rely on that process, which has been agreed, discussed and thought through, rather than set up a new process for one part of local government, albeit a very important part: the fire and rescue authorities.
  Baroness Turner of Camden: I thank the noble Lord for that explanation, which is similar to what we discussed earlier. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 90 not moved.]
  Clause 22 agreed to.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 91:
  After Clause 22, insert the following new clause—
  "INTERVENTION CODE
  (1) The Secretary of State shall publish an Intervention Code ("the Code") specifying the circumstances and the manner in which—

  (a) he may make an order under section 22; or

  (b) he may issue a direction under any provision of this Act.

  (2) The Code shall include, in particular, details of—

  (a) the persons or classes of person the Secretary of State will consult before taking the action referred to in subsection (1);

  (b) any other codes of conduct or agreements with any other persons or bodies to which the Secretary of State will have regard when contemplating any action referred to in subsection (1).

  (3) Before publishing the Code referred to in subsection (1), the Secretary of State shall consult—

  (a) all fire and rescue authorities or persons confirmed by them as representing them;

  (b) all persons or bodies recognised by any fire and rescue authority as representing any group of its employees; and

  (c) any other person who appears to the Secretary of State to have an interest in or to be likely to be affected by the actions referred to in subsection (1)."

  The noble Lord said: As the Minister said, we have not come to the end of the debate. The amendment provides a solution to the problems raised in the debate that we have had over the past half-an-hour or so. I shall read from my notes but, of course, they were written before we had that discussion. I should say from the very start—and repeat— that I think this is a solution because, although it does not go as far perhaps as the legislation wants to go, it goes further than the protocols of intervention to which a great deal of reference has been made. The Minister referred to them many times, but now wants to go a lot further.
  Amendment No. 91 is designed to qualify the Secretary of State's power to intervene in the operation of a fire and rescue authority under the powers granted to him under Clause 22, which we have just discussed. Under that clause the Secretary of State may direct a fire and rescue authority precisely how to act or not to act if he believes that it is failing, or likely to fail, to comply with the Fire and Rescue National Framework.
  These are intervention powers that are over and above the sanctions under the best-value regime enshrined in the Local Government Act 1999, which also apply to fire and rescue authorities by virtue of Clause 23. As drafted, they are wide-ranging powers of intervention. In our view, the ability to intervene gives the Secretary of State far too much power vis-à-vis what are supposed to be local, community-based organisations delivering services to, and accountable to, the local community.
  The proposed new clause simply requires the Secretary of State to provide some codification of the circumstances and the manner in which he will make orders under Clause 22, and the circumstances and the manner in which he will issue directions under any of the many provisions allowing him to do so in a Bill that places huge powers in his hands.
  Subsection (2) of the proposed new clause requires the Secretary of State to specify who he will consult, an issue that was discussed several times during the debates on earlier amendments. It does not require him to provide an exhaustive list of individuals or organisations. The subsection requires the Secretary of State instead to define the classes of persons and, critically, to specify any other codes or agreements to which he will have regard before intervening.
  Finally, new subsection (3) specifies the authorities and recognised organisations representing employees which must be consulted on the code before it is issued by the Secretary of State. Again, this issue was referred to recently.
  The new clause proposes a modest limitation on a wide power of intervention and seeks to ensure that it is used as expected by fire and rescue authorities, is not arbitrary and does not become an alternative or loophole for avoiding established intervention procedures. I beg to move.
  Lord Rooker: I do not want to widen the debate but I would be interested to know whether the noble Lord, Lord Hanningfield, given his seniority in local

  GC 371
  government, has brought forward the new clause as a substitute for the agreed code with local government. His proposal is almost a mirror image of the status quo, which I shall read out in a moment.
  Lord Hanningfield: I have a copy of the code, which has been referred to many times. I repeat, what is on the face of the Bill seems to go further than the agreed code of intervention. I am suggesting, if you like, an improvement on the Government's side of the current code of intervention. It does not give the Secretary of State as much power as it seems he would like in the legislation, but gives him more than is in the current code of intervention, which is mainly related to CPAs. It is related to other matters, such as audits of accounts and so on, but it is mainly related to CPA processes. As the Minister said, every fire and rescue authority will have a CPA in 2005, so we will know how good or bad they are after the CPA processes next year.
  We have been looking at the code of intervention again as we have been discussing the Bill. It is very much based on the CPA processes. We are trying to provide an alternative which is stronger than the current code of intervention.
  5.45 p.m.
  Lord Rooker: I shall look with interest at what happens if and when the Local Government Association comes forward with a proposal. I want to make it clear again, because it is important on each amendment, that the Government will exercise the intervention powers in the clause in line with the local government intervention protocol. I am happy to repeat that commitment.
  The intervention protocol covers the use of existing intervention powers across all local authority services, as agreed with stakeholders and published. The protocol was developed through the framework for partnership signed in November 1997 by the Deputy Prime Minister on behalf of the Government, and the chairman of the Local Government Association on behalf of the local authorities.
  The protocol provides: for a sufficient evidence base before any action is taken; that the form and extent of intervention reflects the type and seriousness of failure and the need for effective improvement; for, other than in cases of urgency, a process of agreement with the authority on how it will address any service failure in the first instance; for the use of intervention powers only if the process fails to deliver the required improvement; and for consultation with the authority concerned on any proposed directions.
  In exercising the powers in Clause 22 and elsewhere—reserve powers and last-resort powers—we are committed to following the protocol, which already covers the existing powers to intervene in fire and rescue authorities contained in the Local Government Act. I take what the noble Lord said in response to my earlier comment, but frankly we do not think it sensible to produce a separate protocol for the powers in the Bill, which would mirror the existing provisions agreed with local government. The protocol is out there; it is all
  GC 372
  agreed—signed, sealed and delivered—and can be used in the circumstances. We do not see the need to put another version of it, however it is dressed up, in the Bill.
  Lord Hanningfield: I should declare an interest in the code, because I was Jeremy Beecham's vice-chairman of the LGA when it was signed. I was obviously well aware of the code on intervention. Of course, I am no longer directly associated with the LGA; I am far too busy doing other things.
  We honestly believe that the Bill goes further than what was agreed in the LGA code, and that the Secretary of State is taking interventionist powers beyond what are generally agreed in the local government world. That is why we tabled an alternative to give the Secretary of State some of the powers that he wants, and a spelling-out of his consulting and so on. We have spent a lot of time on that. I do not think that we are going to get much further today. We will have to come back to the issue at a later stage, as everyone has some disquiet about this part of the Bill. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 23 [Best value]:
  Lord Hanningfield Lord Hanningfield moved Amendment No. 92:
  Page 11, line 42, leave out "compliance with section 21(7)" and insert "discharge of its functions under sections 6, 7, 8 and 9"
  The noble Lord said: Amendment No. 92 would amend Clause 23, replacing the reference to compliance in Clause 21(7) with a reference to the authority discharging its functions under Clauses 6 to 9. We have discussed that issue several times; Members of the Committee will recognise that it falls in with some of our earlier amendments to Clause 22. The amendment is necessary to ensure that the best-value audit system does not become subservient to the draconian and unhappy powers granted to the Secretary of State under the previous two clauses.
  The amendment would mean that authorities would be subject to the best-value regime, not in terms of compliance with whatever the Secretary of State dreams up for the framework, which may be inappropriate for the needs of the local community, but according to the much more important question of whether they are discharging their statutory functions in relation to fire, road traffic accidents, fire safety or any other duties that the Secretary of State might prescribe under Clause 9.
  This should not be a controversial amendment. Surely the best-value regime should audit the core services that fire and rescue authorities actually provide, rather than the centralist vision and priorities of the Secretary of State. Without this amendment, the credibility of the best-value regime will be seriously undermined. The concepts of local accountability and value for money for the services that matter will become meaningless.
  I would also like to use this opportunity to mention concerns, first articulated by the Select Committee on the ODPM, that,
  "there are no plans to introduce performance indicators or measures relating to risk management … or non-fire incidents in which the Fire Service plays a rescue role".

  GC 373
  Perhaps the Minister, will address that issue as well in his reply. I beg to move.
  Lord Rooker: I hope that I can satisfy the noble Lord. He seeks to remove the provision that the Audit Commission can consider the extent to which authorities have regard to the national framework as part of the best-value process. He would replace that by a duty to monitor the discharge of the core functions of the fire and rescue authorities. The amendment would, in effect, render Clause 23(1) redundant.
  The comprehensive performance assessment for fire and rescue authorities, currently being piloted by the Audit Commission, will deliver an independent assessment of the effectiveness of all the functions of fire and rescue authorities. The outcome of that process will be a matter of public record. I am not saying this in a nitpicking way—it is not a substantive argument—but the amendment could even have the effect of limiting the Audit Commission's current powers to inspect, as at the moment it can inspect in relation to all functions of a fire and rescue authority, not merely the core functions as set out in Clauses 6 to 9.
  The amendment could also mean that the best-value inspections would not necessarily cover the extent to which authorities had regard to the national framework. As I have already said, the framework will play a crucial role in driving modernisation and therefore improving the service. It is important that that be reflected in the inspection process and the comprehensive performance assessment, otherwise the effect of the framework will be somewhat diluted.
  It is probably the amendment's purpose to reduce the availability of relevant evidence to support the use of the powers in Clause 22. We were not born yesterday; that was already written down. I suspect that those comments are not assurances, but the amendment undermines what we have just spent two hours debating. Clause 22 is a last-resort clause, not a first-resort or second-resort clause. I read out a set of areas from which evidence would come; the amendment would dilute that. I hope that the noble Lord will not pursue his amendment at this stage.
  Lord Hanningfield: I also asked about the ODPM Committee and the performance indicators in relation to risk management. I realise that he might not have that answer now.
  Lord Rooker: I apologise. I have the answer here; as the noble Lord asked, I put out my left hand. We are reviewing the best-value performance indicators in partnership with the practitioners. We are looking at what contribution the performance indicators can make to understanding performance in all aspects of the fire and rescue authority's work, including the integrated risk management plans that it is required to make. I am happy to come back to that at a later stage.
  Lord Hanningfield: The Minister's main response did not really answer all the questions, but as we have rehearsed a lot of the arguments today and will clearly come back to them, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 23 agreed to.
  Clause 24 [Report]:
  Lord Hanningfield Lord Hanningfield moved Amendment No. 93:
  Page 12, line 5, leave out "from time to time" and insert "at least once in every two years"
  The noble Lord said: The amendment attempts to bring a little more clarity to the timescale in which the Secretary of State must report his findings on whether a fire authority meets the terms of the framework, as set down under Clause 21. I am sure that all Members of the Committee will agree that "from time to time" is incredibly vague. Perhaps the Minister will enlighten us about what such a statement means. Is it five years, or 10 years? I suspect that once the Bill is passed, that will be the last that we hear of the provision, as with much that the Government do.
  We are again attempting to place Parliament and its scrutiny function at the very heart of our law-making. The amendment would therefore give a specified time frame for the frequency of such reports, as seems perfectly sensible. I beg to move.
  Lord Bassam of Brighton: I guess that we could have an illuminating and long debate about "time to time", but I am not quite sure that it would do us a great deal of good, not least because on this occasion we see some merit in the amendment.
  Noble Lords: Oh!
  Lord Rooker: My noble friend is the one you want.
  Lord Bassam of Brighton: I am far too nice. I am happy to agree to the principle behind the amendment. It is worth saying that, in this instance, "time to time" probably means rather more frequently than the noble Lord suggested. We are quite happy with the idea of every other year, and we certainly recognise that the commitment is rather vague as it is. We are happy to explore tabling a similar amendment at a later stage, probably on Report. Perhaps the noble Lord will feel happy, content, delighted and able, with confidence, to withdraw his amendment.
  Lord Hanningfield: Tremendous—one victory today. I thank the Minister very much for that reply, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McCarthy Lord McCarthy moved Amendment No. 94:
  Page 12, line 9, at end insert—
  "(c) the extent to which the costs and savings of modernisation are likely to balance over the Spending Review period 2003–06"
  The noble Lord said: Clause 24 is critical. In it, we get the periodic report of the Secretary of State to Parliament. The clause states:
  "The Secretary of State must from time to time report to Parliament on—
  (a) the extent to which fire and rescue authorities are acting in accordance with the Framework",
  and,
  "(b) any steps taken by him for the purpose of securing that fire and rescue authorities act in accordance with the Framework".
  We would like to add to that, at line 9 on page 12,
  "the extent to which the costs and savings of modernisation are likely to balance over the Spending Review period 2003–06".
  Members of the Committee might wonder where the amendment comes from. Why should we think that,
  "the costs and savings of modernisation are likely to balance over the Spending Review period 2003–06"?
  It is because that is what the Government say. If we go back to the Bain report, Sir George was quite unreserved, specific and precise in saying on several occasions that the new system of fire management—the new modernisation proposals—would be self-financing. During the 1960s and 1970s, some of us spent a very great deal of time looking for, working out and studying self-financing productivity deals, and of course we never found one. We found productivity deals that were extremely good, fine and first-class, but they were never quite self-financing, and they certainly were not like that in the public sector. It is very difficult to see how they could be, but we will come to that.
  No one actually said that the new system of modernisation was to be virtually costless, but as it became more fashionable to say something of that sort I asked a number of Written Questions. That is where I got the extent to which,
  "costs and savings of modernisation are likely to balance over the Spending Review period 2003–06".
  On 5 January 2004, at cols. WA15 and WA16 of Hansard, in answer to several questions, I was told a number of things about the cost and savings involved in this new system of fire management. I asked, for example, whether it would be necessary to raise the annual rate of increase in core funding beyond the usual 3 per cent in real terms. The answer was "no", they did not expect that there would be any need to raise the rate of increase in core funding over the immediate future. Of course, there would have to be some one-off payments, mostly concerned with the new responsibilities, for example, for terrorism. Sums of something like £218 million would have to be put in, and there would be other payments made for the productivity deal. But they were merely one-off, lead-in payments.
  6 p.m
  Then came the statement that the Government were convinced that:
  "Costs and savings of modernisation should balance out over the spending review 2002 period (2003–04 to 2005–06.)".—[Official Report, 5/1/04; col. WA 16].
  Of course, it is not clear what that means. Will the Minister tell me what it means? I take it that at the end of the day we have not lost any money. There could still be a deficit, but the balance and the changes in
  GC 376
  practices would in fact generate savings, although there would be costs, and in 2006 we should be just about in balance. That would be a miracle. It really would be a wonderful thing, if you think of what has been done in self-financing productivity deals, or just in public ordinances for new schools, universities, the prison service, the police, let alone the railways. No one has ever said that you could have a self-financing reform of this scope and size in the public sector.
  A self-financing deal, in so far as there is such a thing, comes about in the private sector if you can sell more of whatever it is you are selling at a profit. You could probably sell more because you reduced unit costs, and that pays for the whole thing. In the public sector, you cannot do that. You cannot raise money in that way by selling the product. If you do not sell the bulk of the product to the public, you must put money up front; you must expect that the core services funding will rise; and you must hope that the whole thing will not bankrupt you. That is what improving the quality of public services means.
  Therefore, I tabled this amendment. I am not trying to be difficult, because it is important that we get into the Bill that this is what the Government—to the best of their ability—think will happen, as a target. The Government like targets. What if it does not balance? What if the same sort of thing happens as seems to happen quite a bit in other forms of the PFI? What happens if it costs rather more money? Will the Government increase the funding? Will the Government introduce cuts? Will the Government say, "we cannot get there by 2006"? The Government may well say that my test is much too crude—never mind, they can improve it. If a provision of this kind was put in the Bill, we would have a kind of target to see how we went, to see if in fact the estimates and expectations of the Government are carried out in practice. I beg to move.
  Lord Rooker: My noble friend has made it clear that he thinks that Clause 24 should go a bit further than it does. Fire authorities, through the Local Government Association, have said that the pay deal will balance over the spending review 2002 period. The Government's position has always been that any pay increase above existing provision must be funded from efficiency savings. We do not think that a report on efficiency savings in the Bill is necessary.
  The national framework will give details of the efficiency savings arising from the modernisation process and the framework will be available to Parliament. There is no need for another, additional, reporting process over those specifically set out in Clause 24. Also, as I am sure noble Lords are aware, the Audit Commission is conducting a verification exercise in two phases which is intended to confirm that the intended benefits from modernisation, including efficiency savings, are being delivered locally. This study was requested by the employers as part of the national pay settlement.
  Phase one of the Audit Commission's verification work has already been published. The second phase is due to report in the summer. I suggest that these

  GC 377
  reporting procedures already provide an appropriate mechanism through which these issues should be measured and made public. The Local Government Association said that efficiency savings were available, as did the Bain report. At paragraph 12.22 it states:
  "We are confident that within the foreseeable future, benefits will more than exceed additional costs, including those of the pay increases we have proposed".
  In effect, my noble friend will get what he seeks. I do not argue that it is not legitimate to seek it. Having heard what has been said by Sir George Bain and the Local Government Association, he will get it via the work of the Audit Commission. Indeed, he will get it faster this way than if it were provided for on the face of this Bill.
  Lord McCarthy: I am glad about that and I look forward to seeing the work of the Audit Commission. However, the problem is that a number of key terms tend not to be defined. As the Minister said, it is perfectly true that when the Government talk in this way they frequently assert that the pay deal will balance, as will labour costs. We have been told that the reason why it will balance is because there is a turnover rate among firemen of 4 per cent a year. If it can be reduced to 2 per cent, it will balance. But we have not quite been told how services are going to be extended while reducing the total labour force. But at least, it is said, the pay deal will balance over the period, although I still think that that is ambitious.
  But I did not read the answer to my Written Question as being just about pay. It concerned the costs and savings of modernisation, which is not just pay and work arrangements; it covered everything. The Government have said that certain sums of money will be allocated to deal with the problems of terrorism. Will all that balance? I do not know. New buildings and new equipment will be needed, and sums are to be put aside for those. But, when the Government say that the extent to which the costs and savings of modernisation are likely to balance, it is very unclear how far they are moving out from pay deal balancing to all the other things that will be balancing because they will generate income. I should have thought that a formula rather more sophisticated than the simple one I introduced would have been useful in enabling Parliament to concentrate its mind on how the reform process is going. But we are not to have it, so we await the publications which may inform us in other ways. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 24 agreed to.
  Clause 25 [Information]:
  Baroness Hanham Baroness Hanham moved Amendment No. 95:
  Page 12, line 13, after "returns" insert "reasonably"
  The noble Baroness said: Clause 25 deals with the information that the fire and rescue authority might be required to supply to the Secretary of State. Clauses 25 to 27 fall under the heading "Supervision". Clause 25 obliges the fire and rescue service to submit various
  GC 378
  reports and returns to the Secretary of State. I accept that some information must be available centrally, but I hope that only data that are absolutely required will be collected under the clause.
  The Explanatory Notes give examples of sensible, unexceptional and acceptable information that the Secretary of State can collect, such as numbers of deaths and casualties as a result of fire, which would be useful information. However, the Bill gives the Secretary of State a wide power, so Amendment No. 95 would require a fire and rescue authority to submit only those reports and returns that he reasonably requires. In effect, the point of the amendment is to try to establish what reports the Office of the Deputy Prime Minister expects to require.
  That is important, because in all sorts of areas of government there are increasing demands for information and returns. On reading them it seems that the only people who could benefit from them are the bureaucrats; nobody else could make any sense of them. It seems important that when a report is requested, only the most relevant information should be required.
  Amendment No. 96, which is included in the same group, would delete paragraph (b), which appears entirely redundant. Any information that the Secretary of State requires could be obtained through the requirement to make a report or return to him. Therefore, paragraph (b) could be used to seek lots of new information on an ad hoc basis from individual authorities, placing additional burdens of form-filling on fire authorities and distracting them from their real job.
  Perhaps the Minister could shed light on what will be required, particularly on the basis of ensuring that this is the minimum information required to keep some centralised supervision. I beg to move.
  Lord Rooker: I was listening to the noble Baroness, but I was also going through my notes to clarify several questions. Believe it or not, I could almost describe Clause 25 as a Tory clause; yet the noble Baroness has just sought to rip it apart.
  Clause 25 is a restatement of Section 230 of the Local Government Act 1972, which covers local authority reports, returns and information. It restates the section virtually verbatim—the 1972 Act refers to "reports to Parliament". The purpose of the clause is to extend the requirement to all fire and rescue authorities—combined fire and rescue authorities are not covered by the 1972 Act. That is the point at issue. In other words, we are not legislating twice over, as that would be bad practice.
  Reports and returns are required from fire and rescue authorities to enable us to evaluate fire and rescue service performance and monitor progress against national and local targets. The importance of such information has been recognised in the Select Committee's recent report into the fire and rescue service. We always work closely with the authorities when designing reports and returns to be completed by them. There is no intention to create work for bureaucrats, as the noble Baroness suggested. We have established a new institutional framework where the concerns of the service can be resolved.

  GC 379
  The clause follows the wording in Section 230 of the Local Government Act 1972. To introduce the concept of reasonableness would be to put the collection of information about fire and rescue on a different basis from the collection of other information by government. I will repeat this, as it is important: it is implicit that the Secretary of State must act reasonably and that his requests must be reasonable. We have no evidence that the wording of the Local Government Act 1972 has not worked satisfactorily to date and, therefore, we have no reason to change it. With apologies for my little tease to the noble Baroness, I hope that she will not pursue her attempt to emasculate this Tory clause.
  Baroness Hamwee: Before the noble Baroness responds, I wish to ensure that my noble friend and I have followed the Minister's response correctly. Is he saying that combined fire and rescue authorities must submit reports and returns to the Secretary of State but that non-combined, old-style authorities are subject to the 1972 Act, under which they must submit reports and returns to Parliament? There is a substantial difference between Parliament and the Secretary of State.
  6.15 p.m.
  Lord Rooker: The answer is yes and no. That is a terrible thing for a Minister to say, is it not? Although I do not have the precise wording, the difference is that the 1972 legislation referred to Parliament and the Secretary of State, not Parliament or the Secretary of State. The noble Baroness is quite right; the fire authorities are covered by the 1972 legislation. That is one of the reasons, when we started to debate the Bill, that we said that a lot of it was transposing legislation. Changing to fire and rescue authorities changed the status. which is why we need the clause. We are not in any way diminishing reports to Parliament. The wording has been lifted from the Local Government Act 1972, save for the point about Parliament.
  Baroness Hanham: I do not mind being teased by the Minister; it makes these little exchanges so much more pleasant.
  That information is absolutely fascinating. I cannot say that I delved into the 1972 Act and that this sprung out as something that was missing from the Fire Services Act 1947. However, I am bound to say that it makes me very nervous. I do not think that in 1972 the Tory government would have been seeking anything like the amount of information that is now required by the Government, with all their targets and performance regimes. It would be interesting to compare what reports came through in 1972 with what is now required under the Government's performance regime. Everybody complains about the amount of information that must be produced; most of it is completely unnecessary.
  I asked the Minister for examples of the information likely to be required beyond that which I suggested might be of interest, such as the number of deaths or fires, which pertain to the Bill. One can imagine all
  GC 380
  sorts of information being required. It would be informative, if nothing else, to know what is likely to come forward under this heading. Such information would be helpful. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 96 not moved.]
  Clause 25 agreed to.
  Clause 26 [Inquiries]
  On Question, Whether Clause 26 shall stand part of the Bill?
  Baroness Hamwee: In speaking to Clause 26 stand part, I shall speak also to Clause 27 stand part. We have covered a great deal of this ground before, but I would like to see if we can mop up questions about the different inspection regimes, interventions and so on that the Bill covers.
  I have already said, but it is worth repeating, that we do not at all suggest that authorities' performance is a matter of no consequence. We all depend on the fire and rescue services, and we understand the need for the Secretary of State to have the power to hold an inquiry into a major incident or the response to an incident, which is part of Clause 26. I know that these two clauses replace Sections 33 and 24 of the 1947 Act, but they come at a time when we have as a background, as we have been saying all afternoon, a different regime. We have the best value regime. In 1947 not only was best value not even a gleam in the eye of the Secretary of State, nor was the concept of achieving value for money. I do not even know whether the Secretary of State who was responsible for introducing best value was even born then. Things have changed very much.
  In the Commons, when the clauses were debated, the Minister gave assurances that the inspectorate would not duplicate the work of the Audit Commission. That still left me a bit unclear as to how those two bits fit in with Section 22. I understand from the debate in the Commons that the inspectors report to the Secretary of State; that must be the case. Certainly, it was explained that they are independent, but will be based in the ODPM. I cannot resist saying that I noted too that the Minister there said that he expected the inspectorate to operate with greater efficiency and effectiveness. I am sure that he really wants economy too.
  The inspectors' reports, as I picked up from that debate, are apparently to contribute to the Government's formulation of policies and decision making, but I am not clear whether the reports are public. Does the Minister have anything to add to the explanations that he has given about the interrelationship of the different regimes? Perhaps he can flesh it out a bit more for me.
  Lord Rooker: I will deal with Clauses 26 and 27 together, as they are grouped and they are complementary. As the noble Baroness said, Clause 26 replaces the existing provision for holding inquiries under Section 33 of the 1947 Act. It should also be read in conjunction with Clause 55, which provides powers in relation to inquiries. The Secretary of State may

  GC 381
  establish an inquiry into the performance of a fire and rescue authority in respect of any of its functions or the circumstances leading to or handling of a particular incident for which it has functions under the Bill.
  While the Secretary of State has never used his powers under the 1947 Act, they remain important. The powers under Clause 26(a) complement those available to the Secretary of State under best value, which is Section 15 of the Local Government Act 1999, to require a local inquiry into the exercise by a local authority of specified functions. Fire and rescue authorities are subject to best value, but as we previously discussed, their responsibilities go wider, for example, with regard to the objectives of the national framework. Clause 26(a) ensures that the Secretary of State has power to consider how a fire and rescue authority is discharging all of its functions.
  I am sure that the noble Baroness understands the case for the Secretary of State to inquire into the circumstances of a fire, road traffic accident or emergency or into how a fire and rescue authority dealt with an incident, to understand and learn about an event that may have had tragic consequences for firefighters or the wider public. Clause 27 re-enacts Section 24 of the Fire Services Act 1947, and gives power to appoint inspectors and assistant inspectors, in order to obtain information about the way in which authorities are discharging their fire and rescue functions and about technical matters relating to the service. It provides that those appointed under the 1947 Act continue to be inspectors. The inspector provides a valued source of technical and professional advice to the Government, which it is vital to maintain as we modernise the fire and rescue service.
  The White Paper, Our Fire and Rescue Service, made clear that the work of the inspectorate would be refocused and redirected to support the process of quality assurance and service improvement. It would be intended, first, to provide professional advice to government on good practice, operational and technical issues and on developing leaders of the future; and, secondly, to provide operational and technical advice to the Audit Commission in its new inspection function. As such, the two clauses are justified. As I have said, the powers have been there since 1947 and have never been used, but it is important that they remain in the modern framework of the new fire and rescue authorities.
  Baroness Maddock: I wonder whether the Minister could say something about the relative costs of the inspections. This was discussed when these clauses were debated in another place. At that time, the Under-Secretary, Phil Hope, said that he did not have any figures. He could write with figures as to what the inspections cost now, but he was unable to talk very much about future costs, because they were having discussions in the coming months. I wonder whether the Minister could give us some indication of the relative costs, because the new inspectorate with a different focus will be working quite closely with the
  GC 382
  Audit Commission. When one reads it, one wonders whether this will actually cost more than it would have done originally.
  Lord Rooker: I do not know about that comment. The work of the inspectorate is being redirected and refocused. As a result of the transfer to the Audit Commission, there will be a reduction in staffing levels—there is no question about that. In future, the smaller team will be providing independent advice and guidance on the issues that I have raised on professional, operational and technical matters. As I say, the change in focus will result in a smaller and, we hope, highly efficient inspectorate with a different set of skills as envisaged by the independent review. The change in tasks and focus makes it difficult to provide before-and-after financial figures.
  I will certainly take advice on this for the next stage. I will write to colleagues in the mean time if I can. It is a legitimate point, but given the nature of the change and refocus of the inspectorate, and the changes that the Audit Commission is making, I will see if it is possible to put something on paper before the next stage. If I fail, I will certainly have a better answer at the next stage than I have today.
  Baroness Hanham: I wonder if I could just ask one question. It has arisen as a result of this discussion so I am only just seeking an answer. It relates to the 1947 Act.
  A lot of legislation on liability has come into being since 1947, both EU legislation and our own legislation. What happens if the Secretary of State sets up an inquiry under the Local Government Act into a major incident, and someone or some authority was found wanting under that inquiry, because someone was not performing their job properly or went off and did something else, and as a result liability fell on that person? In 1947, I dare say that that would not have come on to a personal liability basis. I wonder what the implication as a result of other legislation might be on any inquiry held under paragraph (b), and whether there is a comparable situation, under the legislation.
  In local government, normally if there are planning inquiries or major infrastructure inquiries under the local government legislation, they would not be delving into why something had gone seriously wrong in the management of a major fire, where someone was killed and someone had acted with less than the greatest diligence. I am sure that that may not be happening, but I would like to know, if I could, if there has been anything since 1947 that might change the tenor of paragraph (b).
  6.30 p.m.
  Lord Rooker: I do not know offhand. It is a legitimate question. I shall take advice and, if I can, I shall write to the noble Baroness before the next stage.
  Over the years, as the law has advanced in all kinds of areas—personal liability, corporate liability, human rights and so on—the necessary consequential amendments have been made to other legislation. That

  GC 383
  may not cover the noble Baroness's legitimate question; I shall take advice and try to write to her. I shall certainly have an answer in advance of the next stage.
  Baroness Hanham: Thank you.
  Baroness Hamwee: The noble Baroness's question leads me to wonder where the Health and Safety Executive fits in with inquiries under this legislation. It is an interesting area.
  I congratulate the Minister on not having said once in his reply that these are reserve powers which will be used only in the most extreme circumstances. I do not want to pursue the point today and I shall not oppose Clause 26 standing part of the Bill.
  Clause 26 agreed to.
  Clause 27 agreed to.
  Clause 28 [Equipment, facilities, services and organisations]:
  Baroness Hanham Baroness Hanham moved Amendment No. 97:
  Page 13, leave out lines 1 and 2 and insert "necessary for the protection of public safety"
  The noble Baroness said: Clause 28 allows the Secretary of State to provide equipment and services to fire authorities, to require their use and to require them to pay for their use. The question I wish to explore is the basis upon which the ODPM will charge for those services. Will it either be purely cost recovery or will there be a profit element? The provisions have the potential to erode the autonomy of the fire and rescue authorities.
  Concern arises when we come to the provisions in the clause which allow the Secretary of State to charge for the use of the equipment that he provides. Further, the clause raises important questions as to whether the service is to be a local service, a national service or a regionally dictated service. We believe that entering into such a scheme should be because it promotes public safety, rather than only economy, efficiency and effectiveness.
  The power that the Secretary of State will have under the clause is a major intervention in the autonomy of authorities. It can be justified on the grounds of public safety but it is the authority's council tax payers, not the Secretary of State, who should be driving the agenda of efficiency and effectiveness. We believe that saving lives—we can see, to some extent, where this is coming from—is more important than saving cash.
  Amendment No. 97 is designed to focus the Government's mind on the stated public safety agenda. The clause constrains the Secretary of State to central procurement and provision of equipment only when it is in the interest of promoting economy, efficiency and effectiveness. The amendment would substitute a reference to public safety. That would cover the circumstances in which the Secretary of State needs to provide equipment to deal with the threat of an unconventional terrorist attack, for example, because it would clearly be in the interests of public safety to have such equipment purchased and made available.
  It is not obvious whether the provision of routine fire appliances, purchased by the Secretary of State and made available to authorities which are required to use them, is in the interests of public safety. The Secretary of State may think that it is in the interests of economy, efficiency and effectiveness for him to decide everything, but that is a matter of judgment.
  Amendment No. 98 repeats the same intentions in relation to subsection (2) of the clause, substituting reference to public safety and giving symmetry with Clause 29, which specifically allows the exercise of powers only in the interests of public safety.
  Amendment No. 103 adds another ground on which the Secretary of State can act—the effective discharge of the functions conferred on an authority under Clause 9. The Secretary of State will confer functions under the clause in relation to dealing with the anti-terrorist response. It will give Ministers an opportunity to confirm that organisations will be established and forced upon fire and rescue authorities only where that is in the interests of public safety, or where they are related to the response to unconventional threats. I beg to move.
  Lord Bassam of Brighton: These are interesting amendments. They get to the heart of procurement and the ways in which we can improve the quality of procurement. Looking at noble Lords opposite, I am thinking of examples of good procurement practice in the public sector, particularly in local authorities. When I was leader of Brighton council, we used to look at the nice, glossy Kent County Council brochures that offered to sell us everything at a reasonable price. I was an admirer of the service that they provided generally to local government. They provided sensible means of procurement and good value for money. It is an important issue.
  As the noble Baroness said, Amendment No. 97 would allow the Secretary of State to provide only such equipment, facilities and services as were necessary for the protection of public safety, narrowing the range of the Secretary of State's discretion and ability to intervene. Amendment No. 98 would allow the Secretary of State to establish or maintain an organisation or contribute to the costs of an organisation for procurement only where necessary for the protection of public safety and the effective discharge of the new duties under Clause 9.
  It would be helpful if I clarified that Clause 28 is essentially concerned with ensuring that the fire and rescue service has the tools to do the job effectively. Unlike many of the other clauses that we have discussed, it is not about how the service discharges its functions. It is therefore not appropriate to specify public safety as a requirement. However, we must take into account the overall economy, efficiency and effectiveness of the fire and rescue service, particularly its impact on local council tax payers.
  The Bain review concluded—unsurprisingly—that procurement was one area where significant improvements could be achieved, if authorities joined together to pool requirements and expertise. The others were the amalgamation of control rooms; outsourcing or collaboration arrangements for vehicle

  GC 385
  maintenance; and the rationalisation of management and support costs. The review suggested that combined savings reaching £42 million over three years could be achieved.
  The current procurement arrangements for the provision of equipment and services specific to the service are often inefficient, due to the small scale on which they are carried out. Fire and rescue authorities can collaborate to develop standard specifications, reduce specialist administration costs and place bulk orders. However, that potential has been significantly underexploited, despite efforts over the past decade to achieve improvements. That has led to important equipment, such as breathing apparatus, not being standardised throughout the service. As well as having cost implications, it creates problems of interoperability.
  It is not acceptable for that to continue. One option is to establish a single organisation to be responsible for providing fire and rescue service-specific equipment and services. The Government are working closely with the service and the Local Government Association to establish what that would involve and how it could best be done.
  We are well aware that the fire and rescue service has a great deal of expertise on the equipment necessary to carry out its job effectively. I reassure the Committee that the service will be involved at an early stage of any procurement exercise. That has been the case with the New Dimension programme and the Firelink radio project and will be the case with the control rooms project.
  It is not our intention to procure centrally every item of equipment needed by the fire and rescue service. Goods and services that are not specific to the service will be procured locally to ensure that the economies of scale that are available through bulk ordering and reducing bureaucratic processes are on a regional basis. We are working with the LGA to establish regional centres of excellence in procurement to help deliver improved processes and practices.
  I hope that I have allayed some of the noble Baroness's concerns about autonomy and central direction. We are trying to create some efficiencies, not undermine local accountability, which we greatly value. We recognise the role that the fire authorities will play in that exercise. Having some central provision for procurement is sensible and will be good use of the money that fire authorities have at their disposal for improving the quality of equipment and ensuring, in particular, that the New Dimension programme is successful.
  Baroness Hanham: I am quite often baffled by the legislation that comes before us, but I am bound to say that I am completely bewildered how we get centralist procurement provision out of Clause 28. Are the Government saying that there could be a requirement under it for authorities to join together and promote or buy, as the most economic way because that is how it is beneficial to procure? If so, I am completely bewildered about how they get that from the clause. It goes without saying that it makes sense to do proper
  GC 386
  and efficient procurement and get the benefit of operating through one contractor for a whole lot of services. However, so far as I can see, the clause says that the Secretary of State can decide that he might provide a bit of the equipment, or might not, and will then charge everyone for it. How that comes into centralised procurement, I simply do not know.
  If the provision were a way of making economic efficiency in purchasing—perhaps for equipment—that would be required only on a rare occasion when there were a number of contractors and it was easier to get one involved for all the services, I would accept that. However, the subsection needs a bit of amendment if that is what it means. I cannot really respond any further, because the subsection clearly does not mean what we thought. I would like to take further advice before we return to it at a later stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 98 not moved.]
  Baroness Hanham Baroness Hanham moved Amendment No. 99:
  Page 13, line 7, after "imposed" insert "by order"
  The noble Baroness said: Amendments Nos. 99 to 101 are grouped together. Under the Bill, the Secretary of State will be able to require authorities to use equipment, facilities and services provided by him or by an organisation created and maintained by him. He will be able to require authorities to pay for the use of that equipment.
  Amendment No. 99 is therefore a probing amendment designed to press the Minister to bring greater clarity on what so far is a rather vague area. Some of the information comes back to what we were talking about. How will charges be set? Will they be set on a cost-recovery basis, as fire and rescue authorities will be limited to doing when charging others for services under Clause 19? Indeed, perhaps the Minister will give some indication of what the Secretary of State actually intends to be able to charge for. At the moment it is simply not clear.
  Amendment No. 100 is probing in nature. It would insert, at the end of subsection (3)(b), "under subsection (2)". On first reading the Bill, I assumed that organisations established or maintained by the Secretary of State for which charges may be imposed on fire authorities under subsection (3)(b) would in every case be those established under subsection (2).
  Amendment No. 101 is simply designed to bring greater clarity and transparency to the process involved in Clause 28 by widening the scope of those individuals that the Secretary of State must consult before levying such a charge, were such a charge to impact directly on them. Perhaps the Minister will give us some assurance that the powers on charging that the clause would give to the Secretary of State would be used sensibly alongside any consultation process.
  What I said before encompasses this matter. The amendments are a bit more general, but I still stand by what I said before about not knowing what the clauses were all about. I beg to move.
  6.45 p.m.
  Lord Bassam of Brighton: I am sorry that the noble Baroness does not understand the clause in the same way as we do. I hope that what I said before offered elucidation, and that what I say now will offer further elucidation. I understand the spirit in which the amendment was moved, and it is right to question the basis on which charging can be made.
  Amendment No. 99 would require the Secretary of State to make an order if he wanted to charge for the use of equipment or services provided by him. Under Section 22 of the Fire Services Act, the Secretary of State can make equipment available to fire and rescue authorities to purchase, and there was never any suggestion that the price should be set by order. To do so would be unnecessarily bureaucratic. If it were agreed, the amendment would mean that every time the Secretary of State wanted to alter the charge it would require a new order. If we were ever to have something like that, it would be a strange instrument of central planning. That does not seem to be a particularly good use of parliamentary time.
  Opposition Members of the Committee may say that the 1947 Act did not give the Secretary of State the power to require a fire and rescue authority to buy from him. However, if the Secretary of State is to require fire and rescue authorities to use equipment under the clause, he must do so by order, whether or not he is levying a charge for that use. Furthermore, he must consult widely before making any such order. The clause makes that clear. We think that that ensures the parliamentary scrutiny that Members of the Committee seek.
  Amendment No. 100 specifies that charges may be imposed only for the use of equipment, facilities and services provided by an organisation established or maintained by the Secretary of State under Clause 28(2). I want to reassure the Committee that that is implicit in the clause as drafted, hence Amendment No. 100 is unnecessary.
  Amendment No. 101 would specify with whom the Secretary of State should consult before making an order requiring one or more fire and rescue authorities to use and maintain equipment, facilities or services. The Secretary of State would already be required to consult with any persons whom he considers appropriate before making an order under Clause 28. We have been especially careful not to be too prescriptive in defining potential consultees, as it would run the risk of excluding any future persons or groups not mentioned in the Bill with whom a future Secretary of State might want to consult. For that reason, Amendment No. 101 is unnecessary as, in practice, the Secretary of State would seek to consult with all those affected by an order made under Clause 28. I hope that that clarifies the matter and provides reassurance.
  There was concern about the Government planning to charge for provision in relation to the New Dimension equipment. We have no intention of charging for any of the equipment that we have committed to providing for resilience purposes. As the noble Baroness knows, the
  GC 388
  Government are funding the procurement of the Firelink radio system and have no intention of charging the fire and rescue services for its provision. Similarly, we funded the purchase of New Dimension equipment to the tune of £188 million, and authorities will not be expected to bear the cost of its use for the New Dimension purposes. However, the Secretary of State needs an option to charge for new services that he might provide in the future.
  The other point to clarify is the basis of the charging regime, and I should answer the question about whether there would be full-cost recovery. Fire service circular 7/2002 makes it clear that the Government had committed to funding the Firelink radio system, but indicated that there would be a charge for its use. Any charging regime for Firelink would not be on a full-cost recovery basis, given ministerial commitments in the past on providing the replacement system. Any charging regime for Firelink, or any other centrally provided service, would be established in discussion with the fire and rescue service and the Local Government Association. I think that that covers the noble Baroness's point about charging; if it does not, I shall listen again to what she has to say on it.
  Baroness Hanham: I do not think that this noble Baroness is going to take the point any further. I want now to read what has been said because these two large groups of amendments have begun to flush out exactly what the clauses mean. I want to consider further what the Minister has said and come back at a later stage. Embedded here is the whole question of costs to individual fire authorities and to regional authorities, including what is to be charged for and what the Secretary of State is likely to provide that individual or regional authorities will not provide. There is more to this than I had anticipated at the start. In any event, we shall return to the matter. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 100 and 101 not moved.]
  Clause 28 agreed to.
  Clause 29 [Directions for public safety purposes]:
  Lord Hanningfield Lord Hanningfield moved Amendment No. 102:
  Page 13, line 22, at end insert—
  "(1A) An order under subsection (1) may only be made where one or more fire and rescue authorities is, or is considered by the Secretary of State to be likely to become, unable to discharge its functions under section 7, 8 or 9."
  The noble Lord said: We are continuing the same trend established in the previous amendments. It appears to us that Clause 29 would give the Secretary of State unprecedented powers to intervene in the running of fire authorities with regard to the disposal of property or facilities. Again, this clause raises serious questions about whether our fire services should be run from a national, Whitehall-based position, or should they be left to those on the ground to decide what is best suited to their own local circumstances.
  Although we can accept and indeed support that such a power could be used in the event of a national emergency, or in regard to a serious industrial action

  GC 389
  where there was a legitimate duty on the Government to ensure the continuation of fire and emergency services, we believe that this clause is arguably too powerful and all-encompassing.
  Amendment No. 102 would limit use of the powers to the circumstances in which Ministers say that they are needed. It provides for the use by the Secretary of State of the powers in the clause when either a fire authority cannot, or he reasonably expects that it will not be able to, discharge its functions under Clauses 7 to 9 covering fire, road traffic accidents and other emergencies.
  Members on this side of the Committee believe that fire and rescue authorities must have the primary responsibility for the discharge of their functions. We have said several times that it is right and proper that the Secretary of State should have the power to intervene when they fail to discharge those functions either because they are incompetent or because something such as a strike prevents them doing so. It is also proper that he should be constrained not to interfere in that way if they are discharging their functions fully and effectively. Without amendment, this clause gives too wide a power of intervention. I beg to move.
  Lord Rooker: The noble Lord, Lord Hanningfield, has made clear the intention behind this amendment. It would weaken the ability of the Secretary of State to take action critical to ensuring public safety. I do not say that the noble Lord would put public safety at risk; I do not want to put words in his mouth. But the ability of the Secretary of State to act would be weakened.
  Before dealing with the narrow confines of the amendment, I should make clear the purpose of Clause 29. It has been specifically drafted to ensure that in the event of industrial action, the Secretary of State can act swiftly to secure the assets and facilities of fire and rescue authorities. Those are, for example, appliances, aerial platforms and other resources critical to those who may be providing emergency fire and rescue cover.
  Noble Lords will recognise, I am sure, that it is the duty of the Government to have public safety at the forefront of their actions. That is why we are seeking the powers in Clause 29 and why we cannot accept Amendment No. 102. I shall explain why.
  As drafted, the amendment would place an obligation on the Secretary of State to demonstrate that a fire and rescue authority is or is likely to become unable to discharge its core operational functions under Clauses 7 to 9. As part of the fire and rescue authorities' duty to make provision for firefighting purposes, they are required to secure the personnel necessary efficiently to meet all normal requirements. Fire and rescue authorities argue that this duty is discharged by the provision of adequate numbers of personnel for their areas and that industrial action by such personnel does not affect this.
  The Committee may recall that we considered the meaning of "normal requirements" when debating the extent to which fire and rescue authorities must
  GC 390
  make provision for core duties. In previous periods of industrial action, fire and rescue authorities have consistently taken the view that they have discharged their duty to make provision for fighting fires. That was the legal view they took in the most recent industrial dispute.
  The purpose of Clause 29 is to remove any uncertainty as to the Secretary of State's ability to obtain important equipment in the event of possible industrial action. To place an additional obstacle as proposed by Amendment No. 102 would present a real risk that the Secretary of State's powers to secure crucial resources would be frustrated. The technical legal distinction about whether or not the requirement to make provision for core duties extends to industrial action was debated in another place, where I understand the amendment was withdrawn. Nevertheless, I will repeat the assurance given by the Minister for fire safety, Phil Hope MP, who made clear that the Secretary of State intends to use the powers under Clause 29 only where necessary to ensure public safety in the event of industrial action.
  We hope and expect that, in practice, most if not all fire and rescue authorities will co-operate if their properties or facilities are needed to provide emergency cover. Nevertheless, effective planning for such an eventuality is reliant on the confidence that particular kinds of equipment can be accessed at relatively short notice. This is important for the health and safety of those providing emergency cover and also to ensure the safety of the general public. Amendment No. 102 would remove that assurance and create delay and uncertainty in gaining access to vital equipment. That could result in a reduction in public safety, which we are not prepared to countenance.
  I have spelt out, in unambiguous terms, that Clause 29 is there for a clear and specific purpose; there are no ulterior motives at all. With that explanation, I hope that the noble Lord will agree that many of the points he made are not relevant because of the way we intend to operate Clause 29. That is not a criticism of the noble Lord—he would not have known what I was going to say—but I want to be clear and unambiguous about the purpose of Clause 29 and why it has been drafted in the way in which it has been.
  Lord Hanningfield: As I said in my introduction to the amendment, we accept that the Secretary of State should have those powers in the event of major strike activity or a national emergency. As we see the situation, from the way in which the clause is written the Secretary of State could have the power to intervene locally to close a fire station that the local community wants to keep open. Can the Minister give an unambiguous assurance that that would never happen; that there would never be central intervention to close a local fire station that people wanted to keep open? We feel that this clause might allow that. It has got nothing to do with a national emergency or a strike. The Secretary of State could intervene, say, in Essex and close a fire station in Chelmsford that we felt

  GC 391
  as a local community should be there. We feel that the Secretary of State should not have that power. That is the power that we need to clarify.
  Lord Rooker: I should like to be able to say quite specifically that the Secretary of State would not do that. I am not saying that fire stations will never close—it would be stupid to say that and I do not think that the noble Lord would expect me to do so—but what I can say is that Clause 29 would not be used to close a fire station. That is a good, clear answer, is it not? Powers under the clause would not be used by the Secretary of State to close a fire station, in Essex or elsewhere.
  7 p.m.
  Lord HanningfieldI agree that there will be times when the population changes or moves around as towns grow and towns get smaller; in which case we would have to move fire stations. But that should not be imposed by the Secretary of State. Does the Minister agree that there must be local solutions and local discussion and that there should not be a power anywhere in the Bill under which the Secretary of State can impose a fire station closure on a local community that does not want it?
  Lord Rooker: As I recall, that was one of the issues that we dealt with when we discussed Section 19 of the 1947 Act under the Local Government Bill. Until the Local Government Act 2003, it was the case from 1947 that even if a local fire authority wanted to close a fire station it had to ask the Secretary of State for approval. It was ridiculous central government control and we got rid of it. I can recall the debate now. That is not our purpose and therefore I can give the noble Lord an unambiguous answer.
  The Secretary of State is not in a position to do what the noble Lord is talking about under Clause 29. By that I do not mean that there is something buried away in an appendix that gives him the power to do it; as far as I know, there is not. Clause 29 has been created for a specific purpose—this goes back to our earlier debates about the use and disposal of property or facilities—and it cannot be used to close a fire station. The Secretary of State does not want such a power. Indeed, he got rid of the power to say "yes" or "no" to the closure of fire stations. Such a decision should be made by the fire and rescue authority when it has completed the risk management plans for its locality. That is what this is all about. It must take heed of the guidance but make its disposition of resources meet local circumstances.
  I can be quite unambiguous in answering the noble Lord. What he suggests cannot be done under Clause 29. The Secretary of State does not want the powers; he released them last year, having had them since 1947, and he does not seek to resurrect them in this Bill.
  Baroness Hamwee: I am sorry—only a lawyer might ask this—but could the Minister consider writing to us
  GC 392
  to explain the need for the words, "or disposal"? I understand everything he has said, but the concerns that he raised seem to be answered by the word "use".
  Lord Rooker: Yes. Unless I get the answer to that question in the next two seconds, I shall write on the words "or disposal". It may save a debate on Report.
  Lord Hanningfield: We have had an interesting discussion because several areas needed to be clarified. We totally accept that the powers need to be there for emergency strike action and so on. I have expressed concerns generally about local accountability in relation to where fire stations should be. We have had a good debate and I have heard what the Minister said. We shall analyse it and, if he can reply to the question asked by the noble Baroness, Lady Hamwee, I shall be happy to withdraw the amendment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 103 had been withdrawn from the Marshalled List.]
  Clause 29 agreed to.
  Clause 30 agreed to.
  Clause 31 [Negotiating bodies]:
  Lord Hanningfield Lord Hanningfield moved Amendment No 104:
  Page 14, line 21, after "may" insert ", subject to subsection (1A),"
  The noble Lord said: We now enter an important part of this piece of legislation, setting out as it does the machinery on which future pay and conditions will be negotiated and decided. One thing we learned from the recent dispute was that the system in place was woefully inadequate, unwieldy and unable to cope with the demands of modern pay negotiations. Reform is needed if we are to avoid the tangle in which the Government and employers found themselves in the course of that dispute.
  Indeed, so bad did things get that I am reliably informed that the Minister of State, Nick Raynsford, refused point blank to deal with the chairman of the employer's main fire body, preferring to deal instead with my good colleague and friend, the vice-chairman of the Local Government Association and leader of Kent County Council. There was also that rather unfortunate image of the Deputy Prime Minister being woken in his pyjamas in the early hours of the morning—something that people would probably rather not do—to sort out the mess. Some improvements need to be made in the system, therefore.
  The amendments address a possible concern arising from the splitting of responsibilities for England, Wales and Scotland. Amendment No. 104 is a paving amendment for Amendment No. 107, which would require the Secretary of State to establish a negotiating body only when he has reached agreement with the Scottish Parliament and the Welsh Assembly to the effect that the negotiating body could negotiate pay and conditions for the fire and rescue service or Scottish fire service employees throughout the whole United Kingdom.
  The purpose of tabling the amendments, as discussed in the other place, is to highlight a concern felt by fire and rescue authority employers. Previously, there has been a UK-wide approach to the matter, which included Scotland. Under the current negotiating arrangements, the Scottish fire authority employers are represented alongside their English and Welsh counterparts. We need to understand how the Secretary of State would use his powers to impose negotiating machinery if the current negotiations with the national joint council were to fail to agree a new structure.
  We on this side understand that the powers of the Secretary of State would extend only to England. Were the Bill to stand as it is now, the negotiating machinery would relate only to England, with Scotland and Wales having separate machinery. Therefore, we should like to know whether the Minister recognises that concern and intends that there should not be separate national negotiating forms for Wales, England and Scotland. It is a very important issue and one on which I hope the Minister will be able to shed some light. I beg to move.
  Lord Rooker: I hope that I can satisfy the noble Lord. I have a brief response to give him, with a couple of specific answers, but in some respects I regret that I shall not be able to go any wider.
  The noble Lord accepts that the negotiating machinery is crucial to the modernisation of the fire and rescue service. The existing negotiating arrangements are currently under review. We hope that the review leads to improved arrangements that meet the needs of the modern fire and rescue service. That is about as far as I can go down that road at this point.
  Clause 31 would provide the Secretary of State with reserve powers to establish statutory negotiating bodies for England, should the review fail to deliver sufficient improvements. Amendments Nos. 104 and 107 would ensure that the negotiating body established under this clause would negotiate conditions of service for employees of fire and rescue authorities across Scotland and Wales as well as England.
  I accept that the existing negotiation arrangements work on a UK-wide basis. The Government would prefer that to continue. However, if we decide to draw down the powers in the Bill and establish a statutory body, it makes sense for England and Scotland to legislate separately in our own areas of competence. Responsibility for the fire and rescue service is devolved in Scotland and Northern Ireland and will be devolved to Wales as part of this Bill, so it is possible over time that our financial and policy positions would diverge. We would not then wish to be bound by statute to negotiate as one body—that is the central point.
  We would prefer UK-wide arrangements to continue. That would be the preference, but it would not be the case over time, so it would not make sense
  GC 394
  to be bound by statute to negotiate as one. We would have to return to the matter in primary legislation, which would be unnecessary. I hope that in the context of the noble Lord's comments on Scotland and England, that is a satisfactory answer at this stage.
  Lord Hanningfield: The Minister said that the Government would prefer to keep Scotland, Wales and England together, and yet the provisions of the Bill set them apart. Most people, certainly in Wales, would prefer to be kept with England. I can see problems with the divergence of Wales, particularly in the borders, and the same with Scotland. That was not a terribly helpful answer. I am pleased that the Minister prefers to keep them together, because that is what most people want. So why can we not find ways to keep them together? I understand that this is devolved, particularly to the Scottish Parliament, but we should be able to find ways somehow to try to keep them together, if that is what people want.
  Lord Rooker: Yes, I know. That is why I said in opening that the existing arrangements are currently under review. I cannot go beyond that here. We have stated our preference. Obviously, as in other areas, there is an issue about administrative arrangements with other powers, namely the Scottish Parliament in the concordats. It is our preference. It is under review at present. I do not want to say anything here that wrecks that—that would be stupid of me.
  Lord Hanningfield: I am pleased that we have the same preference.
  Lord Rooker: We do.
  Lord Hanningfield: We should find some way of achieving it. I am sure that we will come back to this. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 107 not moved.]
  Lord McCarthy Lord McCarthy moved Amendment No. 108:
  Page 14, line 29, leave out paragraph (b) and insert—
  "(b) nominees of trade unions recognised as representing employees;"
  The noble Lord said: This whole section of the Bill is about negotiating bodies. It permits the Secretary of State to exercise quite extraordinary powers. By regulations he can decide all kinds of things about each negotiating body. This amendment deals with one small part, and it is the most important single part. It is the power that he has in Clause 31(1) to decide the persons representing the interests of some or all employees of the fire and rescue service. It says "persons representing the interests". It does not tell you there who those persons shall be, because that is a matter for the Secretary of State. We argue that that is not the proper way of going about this, and therefore we have proposed this amendment.
  In other words, I go back to a point that I made much earlier today when I tried to emphasise that in several ways the Bill departs from the principle that representatives are chosen by those whom they represent, not imposed or selected by the government. This is the case where, in formal terms, the government could select a particular person, not Mr Gilchrist, but Joe Soap. This is the Joe Soap amendment. We want to get rid of Joe Soap. We want to make it clear that it continues to be the case that the representatives who represent the employees are chosen by them, and if there is a recognised union, they are chosen through the union procedure.
  To do anything else would be to depart from a long line of belief and doctrine. It would be against all ACAS guidance; it would be against the Community charter on social rights; it would be against many ILO conventions to which this country is subject; and I would argue that if you look at it properly, it would be against the directive on information and consultation, of which the Government are in favour. Workers should decide their own representatives, and when they are recognised, they should decide them in their union procedures.
  I know that when we talked to the Government about this, they said that we do not understand what is involved. They would not want to say, "Not Mr Andy Gilchrist, but Joe Soap", because they would not want to specify the individuals. That is not what they mean. Nevertheless, the Bill would allow this Government or a successor administration to do just that. It would enable them to change the very personnel in the negotiations, or to object to particular negotiations.
  Again, as I understand it, they are not really concerned about changing the composition in terms of personalities. This is an exercise in representation. Its purpose is to change the single table bargaining that now exists in the service. They want a number of other organisations, ones that are not recognised, to be recognised. If that is what they want, they do not need the law. You do not need a law to recognise another union. Employers are perfectly free to recognise any body they like. They are also free to derecognise, although they should negotiate with those whom they want to derecognise. If they want to change the bargaining structure by taking out part of the bargaining unit and allocating it to another union, that is a subject for negotiation. It is not a matter for law. There is no law governing that in this country, unless you obtain recognition through the provisions of the 1999 Act. If you do that and then if you want to be derecognised, you can be put back into the system which produced the recognition.
  These things should be decided in the normal way of collective bargaining. I should like the Government to assure me that when they say,
  "persons representing the interests of some or all employees of fire and rescue authorities",
  that does not mean that they may decide the personnel sitting on the other side. Those on the other side should be chosen by the workers they represent. I beg to move.
  7.15 p.m.
  Baroness Turner of Camden: Generally speaking, employees in the fire service belong to unions, and those unions are recognised by the employers as appropriate to represent their members and to bargain collectively on their behalf. Our amendment recognises the situation as it is and is likely to be for the foreseeable future. It is also the situation so far as other national joint councils are concerned. The employees are represented by nominees of the unions they have decided to join and which are recognised by the employers.
  I understand that the Government have no wish to change that arrangement; indeed, that has been more or less confirmed this evening by my noble friend at the Dispatch Box. Therefore it seems to me that this amendment should be acceptable to the Government because it sets out the current situation and is likely to be for the future. I support the proposal.
  Lord Rooker: I can be brief and specific in response to my noble friends. I can give an assurance that we have no intention of using the power in this clause to specify which individuals would have seats at the negotiating table, but we do want to be able to specify which organisations should be represented. The second key point I need to make regarding Clause 31, which will be the subject of many debates, is that—at the risk of repeating myself—it establishes reserve powers. We would seek to use these powers only if the review of the existing arrangements fails to deliver appropriate improvements. That review is still continuing and we have not, for obvious reasons, decided to use the powers. I think that that answers the point made by my noble friend about Joe Soap. That would be completely out of bounds.
  My noble friend Lord McCarthy also asked how a union can represent its members if it has no voice on the national negotiating body. Unions will be able to represent their members effectively whether or not they have a seat on a statutory negotiating body. They will certainly be able to lobby employers and negotiating bodies and, as now, they will be able to call or take industrial action. As was made clear in the reports and the White Paper, it is known that under the current arrangements the Fire Brigades Union is the only employee representative body that sits on the negotiating body for non-principal fire officers. The Bain review recommended that employee representation should be widened, and, as set out in the White Paper, we agreed to that. But that does not mean "widened" in the sense of named individuals—far from it.
  We believe that more diverse representation and employee interest in negotiations is important. However, I do not want to go beyond that, because a voluntary review currently under way is considering how the existing negotiating machinery might be adapted to provide for wider employee representation.
  I take the point—I think my noble friend will agree with me—that the voluntary route is best. That is the one we want to work with; that is the one that we want

  GC 397
  to succeed. These are reserve powers only if the voluntary route does not produce a settlement agreed by the various bodies concerned.
  Lord McCarthy: I am glad to hear the Minister say that. The difficulty is that that is not what is in the White Paper. That is why we have gone into this; that is why I am excited about the Bill. On page 52 of the White Paper, paragraph 7.13 states:
  "We also agree with the Independent Review that a new negotiating body should involve representatives of the Retained Firefighters Union, the Fire Officers Association, and the Association of Principal Fire Officers".
  It is true that that is what George Bain said. But he said that it should be negotiated; he did not say, to quote the Minister, if I have got his words right, that they should specify which organisation. It is wrong for the Secretary of State to say that he is going to specify which organisation.
  In support of what he stated at paragraph 52—that he wanted to see, as Bain did, these people negotiating—he said:
  "We see no prospect of such changes being made by agreement. That is why we intend to specify who should be involved".
  That is saying, in terms, that if you cannot get agreement, you will impose an agreement.
  I am grateful for what the Minister said. But he has not disavowed page 52 and I shall continue to worry. With those worries surfaced, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 108A:
  Page 14, line 29, leave out paragraph (b) and insert—
  "( ) persons representing the interests of some or all employees of fire and rescue services, such persons being representative of organisations considered by the Secretary of State to be appropriate, and the number of representatives being as considered appropriate by the Secretary of State:"
  The noble Lord said: This amendment is rather contrary to the previous one because we stress in the amendment the importance of transparency and fairness in the future negotiating machinery process. I noted with interest the amendment tabled in another place by the honourable Member for Tyne Bridge. Indeed it would appear to have been one of those occasions when my honourable friends on our Benches agreed with the Liberal Democrats in the Commons. I hope that I can count on their support today.
  The Bain inquiry, the White Paper and the ODPM Select Committee report all identified the problems posed to the retained service by lack of advocacy and the domination of the national joint council by the FBU. Section 7.13 of the White Paper said that it agreed with Bain and that there should be new
  GC 398
  negotiating bodies, with representatives drawn from the RFU, the Fire Officers Association and the Association of Principal Fire Officers. However, it stated:
  "We see no prospect of such changes being made by agreement. That is why we intend to specify who should be involved … The composition and chair of each body would be determined by the Deputy Prime Minister … we intend to take powers to give guidance to any negotiating body".
  In short, the amendment would provide the Secretary of State with the opportunity to guarantee that the Retained Firefighters Union—and we all commend the work of the retained firefighters—will have a place at the table to negotiate terms and conditions. It would be strange if, despite working through the recent industrial dispute, it was frozen out of negotiations— almost punished. In some counties, 40 to 50 per cent or more of firefighters are retained firefighters. Can the Minister give us an assurance that the Retained Firefighters Union will, regardless of its size or proportionality, have representation on the NJC? I beg to move.
  Lord Bassam of Brighton: The amendment would require the Secretary of State to choose the organisations to represent employee interests on a statutory negotiating body from organisations that the Secretary of State considered appropriate. It would also require him to determine the number of employee representatives on the body.
  It is worth reminding the Committee that the Clause 31 powers to establish statutory negotiating machinery are reserve powers. We would use the powers only if the review, which is the thing to focus on, of the existing arrangements failed to deliver appropriate improvements. That review is still going on, and we have not decided whether we would seek to use the powers. The Government believe that, should we decide to use the powers, it would be more appropriate that detailed arrangements be addressed through regulations. The Bill makes it clear that, prior to making regulations, we would consult stakeholders. We hope that the issue that the noble Lord raises would come to fruition in a consultation process.
  I must clarify our intention on the issue of employee representation on a statutory negotiating body. Under the current arrangements, the Fire Brigades Union is, as the noble Lord said, the only union that sits on the negotiating body for non-principal fire officers. As we all know, the Bain review, to which the noble Lord referred, recommended that union representation should be widened. We agree. We believe that more diverse representation of employee interests in negotiations is important. Clause 31 would allow us to ensure that the range of voices across the work force was heard at the negotiating table.
  As was made clear in another place, I can also confirm that the Government have no intention of naming the individuals who would represent either the employee or employer side on any new negotiating body. We simply seek powers to make regulations about the organisations that would be involved, not the individuals.

  GC 399
  All I can say on the position of retained firefighters is that we want there to be a voice for them. We hope that the process will get us there, and we hope that the current discussions and consultations through the employers will enable that to happen. Obviously, it would be desirable if we could get there through agreement, rather than by using a reserved power.
  Lord Hanningfield: I must press the Minister a little more on the issue. I repeat what I said: large areas of the country are serviced totally by retained firefighters. It is unfair that they should not be involved. Chunks of Devon and Suffolk are covered totally by retained fire services. It is right that they should be involved. Can the Minister confirm that he thinks that that should happen?
  Lord Bassam of Brighton: I thought that I had made it clear that we wanted to get there. The noble Lord knows how sensitive the issues are. The FBU represents retained firefighters in part, as the noble Lord probably knows. I pay tribute to them. They do a great job. In my part of the world, they play a valiant
  GC 400
  role, not so much in East Sussex but certainly in West Sussex. They make up a substantial part of the work force. I am familiar with the issue that the noble Lord has raised.
  We hope that the review process will deliver. Clearly, there will be more consultation and discussion before we get there. It would be much better if we could get there through agreement.
  Lord Hanningfield: Following that discussion, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Rooker: This may be a convenient moment for the Committee to adjourn until Monday at 3.30 p.m. I apologise in advance for my unavoidable absence that day.
  The Deputy Chairman of Committees (Baroness Fookes): The Committee stands adjourned until Monday 24 May at 3.30 p.m.
  The Committee adjourned at half-past seven o'clock.