Grand Committee Report of 24 May 2004

Official Report of the Grand Committee on the

  Fire and Rescue Services Bill
  (Fourth Day)
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Elton) in the Chair.]
  Clause 31 [Negotiation bodies]:
  Baroness Turner of Camden moved Amendment No. 109:
  Page 14, line 31, leave out paragraph (c).
  The noble Baroness said: In moving Amendment No. 109, I shall speak also to Amendments Nos. 111 and 112, which deal with the same subject.
  The aim of the first two amendments is to leave out the provision for an independent chairman. Amendment No. 112 indicates what we think should apply instead. The Bill proposes that there should be new negotiating bodies and there is a stipulation that there should be an independent chairman. Who is to appoint this individual? Clause 31(3) states who he or she should not be; presumably the Secretary of State will appoint the individual concerned. If that is so, it is difficult to see how he or she could be accepted as impartial and genuinely independent by the parties represented on the NJC. There is bound to be the suspicion that if this individual does not do what the Secretary of State wants, the appointment will come to an end.
  It is quite usual for the chairman of such a body to be chosen by the parties represented on it, sometimes for a limited period, and sometimes there is a system of rotation. These bodies have to work by consensus or they cannot work at all, so the role of the chairman and his or her acceptability to all concerned is obviously very important.
  Amendment No. 112 sets out an alternative to what is proposed in the Bill. We are suggesting that the chairman should be chosen jointly by the parties represented on the appropriate negotiating body, and, where they cannot agree the Advisory, Conciliation and Arbitration Service should be invited to propose the name. We also suggest that the responsibilities and powers of the chairman should be agreed between the parties.
  I hope that the Government may be persuaded to think again about this. Even if our proposal in Amendment No. 112 is not acceptable, it is surely very important that the arrangements for negotiating jointly should not only he entirely independent of government but should be seen to be so, and should be so regarded
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  by the participants. A so-called "independent" chair who owes his or her position entirely to the Secretary of State will not, in my view, give that impression. I beg to move.
  The Deputy Chairman of Committees (Lord Elton): I have to tell the Committee that if this amendment is agreed to I shall not be able to call Amendment No. 110 by reason of pre-emption.
  Baroness Hanham: I shall speak later to my Amendment No. 110. We are clearly in an area where there is some agreement about the worry over who will be an independent chairman. We do not, in principle, support the noble Baroness's Amendment No. 112. We have worries about the negotiating group getting bogged down from the outset on who will chair the body.
  I hope that I shall be able to move Amendment No. 110 later. At the moment, I merely indicate that I am not happy with the impact of Amendment No. 112.
  Lord Bassam of Brighton: Amendments Nos. 109, 111 and 112 would alter the provisions that provide for an independent chairman of the negotiating body. The Bain review was very clear in its support for an independent, active chair working towards agreement between the parties. Bain stated that there should be an independent chair and secretariat and that they should be actively involved rather than judicial; the chair should be independent but engaged and should play a mediating role to promote agreement as well as conduct negotiations.
  If we are to establish the negotiating bodies outlined in Clause 31, it is essential that the chair is completely independent of government as well as of the fire and rescue service employees and employee representatives. We have also made it clear that we believe the chair must be someone of real ability and stature. The amendments would prevent the Secretary of State from appointing the chair and defining the chair's role. They would place greater importance on an agreement on who should be the chair rather than determining who could fulfil the role most effectively. Furthermore, the amendment relies on ACAS being willing to propose a chair and the parties being willing to accept its proposal. We cannot assume either that ACAS would agree to becoming involved—I am not sure that the noble Baroness, Lady Turner, described how that might happen—or that the parties would necessarily accept ACAS's advice.
  For those reasons, we feel unhappy with the amendments. We want genuine independence and a leadership role for the chair, so that they can work to secure agreement on matters that come before the body. I hope that the noble Baroness, having heard what I had to say, will feel able to withdraw the amendment.
  Baroness Turner of Camden: I thank the Minister for some of what he said. He said that the chair must he independent of government, which is very important. That was what we were aiming for. Also, the person concerned has to be acceptable to the parties; he implied that as well, by saying that an ACAS nominee

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  might not be. There is clearly an area of agreement on the need for genuine independence from government and acceptability by the parties.
  I shall not press the amendment today, obviously; it was intended that it should be probing and that there be discussion about the role of the independent chairman. What the Minister said answered a number of our queries, but I wonder whether, before Report, we could have a little more information about how the independent person would be appointed. Who would be responsible for the appointment? Would there be consultation with anyone? If consultation was not with ACAS, with whom would it be? From where would the person with the necessary stature emerge? In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Hanham Baroness Hanham moved Amendment No. 110:
  Page 14, line 31, at end insert "appointed in accordance with advice to the Secretary of State from the Commissioner for Public Appointments"
  The noble Baroness said: The amendment moves us on to another side of the coin picked up by the noble Baroness, Lady Turner. There are great concerns about the bald statement that there be an independent chairman. Although I am not totally committed to her idea—the involvement of ACAS would be quite a worry—that does not prevent me suggesting that there must be someone or something else involved in the selection of an independent chairman acceptable to both parties.
  The chairman has to be someone genuinely independent, particularly as there is a great need to restore the trust and credibility in the negotiating machinery that went awry during the most recent dispute. It must be someone who stands above all the fray and is wholly above suspicion of bias, political or otherwise.
  The amendment was moved in another place, and the Minister of State gave a form of assurance that any appointment would be in accordance with the Office of the Deputy Prime Minister's usual term of practice, in complying with the code of practice set up by the Commissioner for Public Appointments. I looked that up today to see what it includes. Ultimately, the appointment is a ministerial appointment but, aside from that, it is an appointment on merit, made by a panel with an independent assessor under equal opportunities policy and with a high level of probity.
  All that seems to add up to providing someone of the stature required. However, I do not think that simply referring to an independent chairman in the Bill will do all that, so our amendment suggests that the appointment be done,
  "in accordance with advice to the Secretary of State from the Commissioner for Public Appointments".
  Having looked at the code, I am not sure that "advice" is strong enough. Depending on the Minister's reply, we may have to look at the matter later to see how we could strengthen "advice". In a way, what is required is that the Minister must appoint whomever the panel
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  recommends, unless there is a thoroughly good reason why the Minister or Secretary of State has some concern about it. Having said that, I still think that having the code of practice for the Commissioner for Public Appointments is the correct way to go. It should be in the Bill so that there is no misunderstanding. I beg to move.
  Baroness Maddock: I support the noble Baroness, and in doing so I declare an interest as a member of the Committee on Standards in Public Life. Perhaps I could press the Minister a little farther on this. He may want to come back to us on Report or in between, but he will know that there has been a certain amount of controversy about ministerial appointments and how much Ministers interfere in the lists. We have had a reassurance that this will be completely independent, and therefore we should have a reassurance that there will be no interference with the list that is recommended. It may not be that the Minister can answer that today. I think that he should answer it in future.
  Lord Evans of Temple Guiting: I start by saying that I have some experience of the intent behind this amendment, because I am a panel member for the Department for Culture, Media and Sport on interviewing for people who wish to join public bodies. The noble Baroness, Lady Hanham, expressed great concern about how the ODPM will handle this appointment. I hope that I can totally reassure her.
  The Government believe that the chairman should be someone of the highest competence and appropriate stature to ensure the negotiating body's effective operation. It would not be appropriate to spell out in the Bill the process through which an independent chairman would be appointed. This is a detailed matter more appropriate for regulations. However—this is the key statement—in making public appointments, it is ODPM's policy to follow the principles set out by the Commissioner for Public Appointments, Dame Rennie Fritchie. If an appointment were to be made in this instance, we would comply with those principles. The noble Baroness, Lady Hanham, helpfully read out those seven principles, and I can confirm that they are the principles that will be followed by the ODPM in making this appointment.
  Without a specific brief, but going on my considerable experience of this process, I expect that the Minister would not interfere in the selection process. It is extremely unusual for the recommendation made by the chair of one of these panels to be overturned by a Minister. In fact, I have not heard of a single example of that. I hope that with that categorical reassurance, the noble Baroness will feel able to withdraw her amendment.
  Baroness Hanham: I thank the Minister for that reply. Sadly, I fear that we are not totally in normal circumstances here. Unfortunately, there is a history attached to all this negotiation. It may be that we need to be a bit more sensitive.
  I hear what the Minister says about regulations. That is precisely what subsection (2) says: regulations will set out what is to be done. If it is left to regulations, and it is not in the Bill that this has to be done in accordance with the code of practice, there would still be a feeling that we had not got this right. I would like

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  to think a bit further about what the Minister has said, and I do not promise not to come back to this. For today, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 111 not moved.]
  3.45 p.m.
  Baroness Hanham Baroness Hanham moved Amendment No. 111A:
  Page 14, line 34, at end insert "the Assembly First Secretary or an Assembly Secretary, as defined in section 53 of the Government of Wales Act 1998 (c. 38) (Assembly first secretary and assembly secretaries)"
  The noble Baroness said: This is a little amendment, which would prevent a Member of the Welsh Assembly being appointed as the independent chairman of a negotiating body for the conditions of service of employees of fire and rescue authorities. It could be argued that the amendment is unnecessary, because Section 43(1) of the Government of Wales Act 1998 appears to cover it. However, that interpretation applies only when the Assembly is exercising for itself a function. Thus, the Assembly could not appoint a Minister of the Crown as chairman of the negotiating body for Wales, but the Secretary of State could appoint an Assembly Secretary as chairman of the negotiating body for England.
  That would not seem to meet the test of independence. Moreover, it does not seem certain that Section 43 of the 1998 Act converts the phrase "Minister of the Crown" in Clause 31(3) so that it is read as Assembly Secretary. The only certainty is that it has to be read as "Assembly". While Assembly Secretaries are part of the Assembly, it is doubtful whether they are the same thing as the Assembly. The safest approach is to provide explicitly that Ministers of the Crown and Assembly Secretaries are treated in the same way, so that they are not open for appointment as chairman of the independent body. I beg to move.
  Baroness Hamwee: The noble Baroness's amendment has prompted me to reread Clause 31(3). Can it really be the case that—and only that, which is the implication—the,
  "chairman is independent for the purposes of subsection (2) if he is not"—
  one of the following? Surely, the clause should read:
  "A chairman is not independent if he is"—
  one of the following. I leave the Minister and his advisers with that thought.
  Lord Bassam of Brighton: Yes, brilliant. It could be expressed in the affirmative, if one wished, but we have done it the other way round. It is probably traditional drafting—I can go no further than that.
  I can give the noble Baroness, Lady Hanham, the assurance that Nick Raynsford gave in the other place. Were we obliged to regulate on this issue, we would regulate to ensure that the chairman was genuinely independent and not a Minister of the Crown or the First Secretary in the Welsh Assembly. We would not see those positions as being sufficiently independent to
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  fulfil the role of chairman. Apart from that, I doubt whether those people would deem themselves to have the time, but that is a rather secondary issue.
  There are probably other categories of persons who would be unsuitable to take on the role of independent chair, but we do not feel that we can list them all in the Bill. We have come up with some fairly wide categories as it is. I do not believe that we need to say much more than that on the subject, but I can give a categorical assurance on that point. I am grateful to the noble Baroness for having raised the issue so that I can do that.
  One further point that might be worth making is that, rare though the need for it may be, the clause makes the categorical point that the chairman should be independent. For other similar bodies, that language is not used. We have done it for a specific purpose—to stress the importance of the chairman being independent in these matters. I am also advised that we shall have another look at the drafting of the clause, although I believe that we are content with it. We shall certainly have another look.
  Baroness Hanham: I thank the Minister for his reply. I am reassured, now that it is in Hansard, that there would be no question that a Minister of the Crown or an Assembly Secretary could be appointed as an independent chairman. On that basis, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 112 and 113 not moved.]
  Clause 31 agreed to.
  Baroness Hanham Baroness Hanham moved Amendment No. 114:
  After Clause 31, insert the following new clause—
  "RETAINED FIREFIGHTERS
  (1) The Secretary of State shall by order, within six months of the coming into effect of any Part of this Act, establish a body to be known as the Advisory Panel on the Recruitment and Retention of Retained Firefighters.
  (2) The body shall be made up of such persons as the Secretary of State shall appoint to include—

  (a) at least two persons appearing to the Secretary of State to be representatives of fire and rescue authorities or organisations representing fire and rescue authorities;

  (b) at least two persons appearing to the Secretary of State to be representatives of retained firefighters or organisations representing retained firefighters;

  (c) at least two persons appearing to the Secretary of State to be representatives of private sector employers or organisations representing private sector employers;

  (d) at least two persons appearing to the Secretary of State to be representatives of public sector employers or organisations representing public sector employers.

  (3) The body shall meet as the Secretary of State shall direct to advise the Secretary of State and fire and rescue authorities on all matters relating to the recruitment and retention of retained duty firefighters."
  The noble Baroness said: The amendment would insert a new clause. It would be the first time, I think, that retained firefighters had been mentioned. It would formally recognise the importance of retained firefighters and of the problems of recruiting and retaining them by establishing an advisory panel for the Secretary of State.
  The point of tabling Amendment No. 114 was to formalise the advisory panel as an ongoing body that would advise the Secretary of State on matters relating to retained firefighters and to formalise the membership of the panel so that it included representatives not only of the fire and rescue authorities and the retained firefighters but of employers from the public and private sectors. That is crucial to allowing the retained force to function effectively. We must underline that: it is by the employer's will that a retained firefighter can do the job. I can appreciate that it may sometimes be difficult for them to be released to do the job, but, as with so much else in the public service, it is fundamentally important that they do.
  According to figures produced by the Chartered Institute of Public Finance and Accountancy, the retained firefighting force throughout the country is about 3,000 firefighters or 20 per cent short of its intended strength. Obviously, it is increasingly difficult to find the kind of people who traditionally have worked as retained firefighters or to establish a situation in which employers will release them to do the job. It is therefore imperative that we act. Retained firefighters are arguably the most cost-effective part of the fire service, and failing to recruit and retain enough of them will not only undermine the modernisation programme but will slow down the harvesting of any financial savings.
  The authorities with the largest number of retained firefighters are, almost invariably, those with the least scope for modernisation savings and the smallest slice of the traditional funding that the Office of the Deputy Prime Minister has made available. It is worth saying something here that we have said in the past: we owe the retained firefighters a huge debt of gratitude not only for their refusal to strike during the recent industrial action but for the work that they do. I know that the Government support that view.
  On 15 December, in another place, the Parliamentary Under-Secretary announced that there would be a review of issues relating to retained firefighting and the need to recruit more retained firefighters. I understand that a workshop was arranged for the end of April. It was to have involved the review team, other representatives of the fire and rescue service, organisations that rely on volunteers to provide a service, government departments and employers' organisations from the public and private sectors. With the amendment, we are attempting to do what was done in the other place and press the Minister on how far advanced those discussions are. What indication can he give us of the conclusions or likely conclusions?
  I also want an assurance from the Minister of the Government's continued commitment to the retained firefighting service. That commitment would be underscored by the inclusion of the new clause. I beg to move.
  Baroness Maddock: I have a great deal of sympathy with the sentiments behind the new clause proposed by the noble Baroness. However, we must be careful not to be divisive.
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  As the noble Baroness said, the White Paper identified problems in many areas with recruiting retained firefighters. It identified some of the reasons: the level of pay; lack of pension; lack of development opportunities; and the lack of recognition sometimes of the contribution that retained firefighters make. In Northumbria—Berwick-upon-Tweed, in particular—all our firefighters are retained. We know locally just what a good job they do, and we are grateful to local employers. There are also many self-employed people in the area who take part.
  The matter was discussed in another place. The Minister gave various reassurances about the importance of the role of retained firefighters and about the way in which they should be treated. As reported at col. 302 of Commons Hansard, he said that retained firefighters should be treated in a way that ensured parity with full-time firefighters. We have had commitments from the Government on that. I hope that as part of that they will embark on the sort of operation that the noble Baroness talked about in connection with this clause. The Government have also given a commitment on another important area: the inclusion of retained firefighters in the negotiating process.
  We strongly support the role of retained firefighters. It is extremely important that the issues that have affected them are righted. It is also important that retained firefighters and full-time firefighters are not separated out and that they are treated in exactly the same way. Although I have sympathy with the reasons behind the amendment, I do not think that it will achieve our objective of good working between both types of firemen.
  Lord Evans of Temple Guiting: I join the noble Baronesses, Lady Hanham and Lady Maddock, in expressing a great debt of gratitude to retained firefighters. We wholeheartedly agree with that sentiment. We appreciate the concerns on the recruitment and retention challenges faced by the retained section of the fire and rescue service, which have prompted this interesting new clause.
  However, the noble Baroness is mistaken in suggesting that a statutory body would be an effective method of tackling the issues. The Committee will recall that the Central Fire Brigades Advisory Council also acted as a statutory consultee for the majority of the Secretary of State's regulation-making powers under the 1947 Act. That body has already been criticised for its increasing inability to provide any strategic direction on the future of the fire and rescue service. For example, the independent review of the fire service led by Sir George Bain concluded in paragraph 3.52 that,
  "The CFBAC and its related advisory boards form a group akin to a national policy forum for the Fire Service. But the council and its advisory boards do not have clearly defined roles; are too big to advise or make decisions effectively; and tend to be bureaucratic. slow and consensus driven".
  Bain recommended a new advisory and consultative structure that would widen engagement with stakeholders and ensure a focus on strategic advice rather than executive functions. I am pleased to tell the Committee that we have already put that new, more

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  flexible structure in place. The practitioners' forum and the business and community safety forum are up and running and ensure that both the providers and users of the service can inform the process of modernisation.
  The Committee will be aware that in the White Paper and the draft national framework the Government have recognised the vital contribution of the retained section of the service and have acknowledged the need to find solutions to long-recognised problems of recruitment and retention, as highlighted by the noble Baroness, Lady Hanham. That is why Ministers announced on 15 December last that there would be a review of issues affecting the retained section of the service. Under the more flexible arrangements afforded by the new consultative structure, a team has now been formed to take forward this review.
  The review team's key remit is the examination of factors that contribute to the recruitment and retention challenges faced by the retained section of the fire and rescue service. They will include issues of equality and diversity; public awareness; engagement with the business community; deployment; community participation; and role, reward and conditions of service as they relate to recruitment and retention issues.
  The retained review team met for the first time on 21 January. I have before me a list of the organisations represented at the workshop, ranging from central government, fire and rescue organisations, to the business and voluntary sector. I am happy to pass the list to all those who have spoken in this debate. The membership of the review team has been drawn from across the fire and rescue service community, including representatives of local government, the Chief and Assistant Chief Officers Association, the Retained Firefighters Union, the Fire Brigades Union, ODPM and the Scottish Executive Justice Department.
  While the focus of this review will be the fire and rescue services of England and Wales, the Scottish Executive Justice Department's participation has been invited, and we have just heard that it has accepted that invitation. We feel that the issues which the retained review team will be investigating are relevant to the Scottish Fire Service. ODPM is also liaising with the Northern Ireland fire service about the work of the review team.
  Only the key service stakeholder groups will be directly involved in the review team. However, other organisations, including public and private employers' organisations, are involved in helping to identify a range of options for tackling the recruitment and retention challenges. A recent workshop brought a wide variety of such organisations together to develop practical solutions to the challenges.
  The retained review team will submit its report, with recommendations, along with an implementation and communication strategy and programme for delivery, to the practitioners' forum in July. The practitioners' forum comprises the key professional stakeholders in the fire and rescue service. The forum, as the experts on these issues, will be advising us on how we should proceed. Given the scope of the remit of the retained review team, the broad cross-section of the organisations involved, the undertaking to
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  report back not only with recommendations but also with a programme for delivery, along with the role of the practitioners' forum in providing support and advice, the amendment moved by the noble Baroness, Lady Hanham, is unnecessary.
  I am sorry to have responded at such length, but it reflects the importance we attach to retained firefighters. I hope that, with the explanation I have given, the noble Baroness will feel able to withdraw her amendment.
  4 p.m.
  Baroness Hanham: I thank the Minister for that detailed response which was extremely helpful and, for the most part, encouraging. My amendment sought to flush out what is happening with regard to the working party, and the Minister has given us a fair amount of detail about it.
  However, perhaps I may press the Minister a little further. If the retained review team is to report to the other organisation about which we have not had so much detail—the practitioners' forum that is to meet in July—is it intended that that will be the end of the role of the retained review team or will it develop into the kind of advisory body that we have talked about?
  Lord Evans of Temple Guiting: Whether the review team remains in existence depends largely on what is set out in the report. There may well be a recommendation for the team to remain operative. If that recommendation is right, I am sure that the ODPM will take it very seriously.
  There is no conflict here. We value the work of the retained firefighters, and we want all the issues that have been in the background to be resolved. However, I shall not be able to give the noble Baroness a specific answer until July, when we shall see the recommendations of the working party.
  Baroness Hanham: I am grateful to the Minister for so swift a response. I shall review what the Minister has said before deciding whether to return to this issue at a later stage, but broadly we have been given the assurances we were looking for. For today, I shall withdraw the amendment.
  Amendment, by leave, withdrawn
  [Amendment No. 115 not moved.]
  Clause 32 [Guidance]:
  Baroness Hanham Baroness Hanham moved Amendment No. 116:
  Page 15, line 24, leave out subsection (2).
  The noble Baroness said: Clause 32 is concerned with the guidance that the Secretary of State may issue in respect of negotiating bodies. We believe that the intent of Clause 32 goes far beyond the issuing of simple guidance, giving the Secretary of State once again significant interventionist powers. It appears that the Government are trying to have the best of both worlds by not actually involving themselves in the negotiations, as Bain suggested, but retaining the ability to jump in at the first opportunity if they do not like what is happening.
  I read with interest the remarks of the Minister of State in another place in response to these amendments. I have to say that, like so much of what the Minister of State had to say, I was left more than slightly unsatisfied with his reply. I hope, therefore, that the Minister can give us some reassurance today.
  Amendment No. 116 would remove subsection (2) of the clause. It states:
  "Negotiating bodies must have regard to any guidance issued under this [clause]".
  By removing this subsection, the guidance would become just that—guidance; that is, an indication of what the Secretary of State feels is appropriate. No one disagrees with his entitlement to issue such guidance. However, it would be a steer, rather than something to which regard must be paid when the negotiation process is under way.
  Amendment No. 118, which is grouped with Amendment No. 116, would introduce a more objective test of whether a negotiating body is such a body under the terms of the Bill. At the moment, the definition of a negotiating body in subsection (3)(b) places great weight on whether the arrangements under which that body is constituted,
  "appear to the Secretary of State to be appropriate arrangements for the negotiation of the conditions of service of employees".
  The amendment would reduce that to a requirement that the body is constituted for the purpose of negotiation of the conditions of employment of those employees. In other words, it would be a recognition of the de facto situation. If a body is de facto a body representing employees in the negotiating process, it should be recognised as a negotiating body under those provisions. I beg to move.
  The Deputy Chairman of Committees: If Amendment No. 116 is agreed to, I shall not be able to call Amendment No. 117 by reason of pre-emption.
  Lord Bassam of Brighton: The amendments would have two effects. The first would be to remove completely the requirement for negotiating bodies to have regard to the guidance issued by the Secretary of State, and the second to remove the power of the Secretary of State to determine which negotiating bodies are appropriate for him to issue guidance to. I am almost tempted to comment that this is a wrecking amendment because its effect would be to leave the negotiating bodies in a morass of uncertainty. Even the noble Baroness commented that the Government have a legitimate interest—my words—in the outcome of negotiations, and recent history has demonstrated the importance of that interest. So we shall have to reject any attempt to undermine that particular link.
  The power to issue guidance would allow the Government to set out what they think a negotiating body should take into account in its negotiations. A negotiating body would not have to follow to the letter every aspect of the guidance, and a careful reading of Clause 32 shows that it does not require the body to do so. However, it is important that the body considers the guidance carefully and takes it into account in its
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  deliberations. There also needs to be clarity on who decides which bodies must have regard to government guidance. There is little point in issuing guidance if we are not clear about the bodies to whom the guidance is addressed.
  It is important to understand why the negotiating body should have regard to government guidance. We have a legitimate interest in the outcome of negotiations. We also have a duty to ensure public safety and to ensure that public funds are used appropriately. We hold the public interest, as government. Negotiating bodies need to take account of the Government's position in their negotiations, and the Bain report emphasised that there needs to be a clear link between Ministers and policy makers and the negotiation structures. The negotiating process itself has in the past suffered from a distinct lack of that clarity.
  I thought that Members of the Committee opposite supported our general approach in that regard, so I am a little surprised that they wish to undermine the impact and import of what we are trying to put in place. The guidance will fulfil the Government's commitment to set the framework for negotiations. That was a point on which, again, I believed that there was a degree of consensus.
  It is not about the Government simply telling the negotiating body what to do. The guidance should, however, be one of the factors that any sensible negotiating body would need to consider during its negotiations. The guidance would allow the Government to set out what they believe the body needs to take into account. It will not be a matter of the guidance telling the body what conclusions it might reach.
  I hope that, now that I have made the Government's position plain, and having emphasised the importance of the link between the governing machinery of our country, the way in which negotiations should be conducted and our desire to give a lead in this field, the noble Baroness, Lady Hanham, will feel able to withdraw her amendment.
  Baroness Hanham: I thank the Minister for that reply. I hear what he says, but there may be a bit of a lacuna here between knowing what happened in the past and knowing what we want to happen in future. At some stages in the passage of the previous Bill, the Government's intervention was not helpful, whereas it might be on other occasions. I should like to reflect further. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 117:
  Page 15, line 24, leave out "must have regard to" and insert "may take into account"
  The noble Baroness said: I had some sympathy with the noble Baroness, Lady Hanham, when she said that this clause involved giving the Secretary of State significant interventionist powers. I agree with that—it does. On the other hand, it seems to me that some consideration must be given to the views of the Secretary of State. What we are suggesting is a slightly different wording.
  The present wording in the Bill seems to imply that the guidance must always be acted on, and I am not at all sure that that is reasonable. A negotiating body should not be under instruction to do what the Government say that it must do. My noble friend the Minister will know that throughout the discussion of this Bill and the preceding one, my noble friends and I have been very anxious to maintain the right to free collective bargaining. The present wording, if it remains unamended, tends to frustrate that objective.
  We suggest that, instead of saying that negotiating bodies,
  "must have regard to any guidance",
  we should replace those words with "may take into account". That is more reasonable and much more in line with what we believe the Government themselves are seeking, since we have been repeatedly told in discussion of this Bill and the preceding one that employee and union rights would be fully respected and that the whole principle of free collective bargaining would be honoured and respected. If we amend the wording as we have suggested, that objective is much more likely to be achieved. I beg to move.
  Lord Bassam of Brighton: I dealt with the issues that the noble Baroness raised while moving the amendment when we considered earlier amendments. I accept that this is a different approach, but my view remains the same. The amendment would water down the clarity of the Bill and would weaken and enfeeble the approach that we are seeking to adopt.
  The guidance will enable the Secretary of State to set out what he believes that the negotiating body should take into account in its negotiations. I would argue that, in the past, the lack of clarity about the situation vis-à-vis negotiating bodies has probably not helped. People need to understand where they are. That said, as I said earlier, we would not expect the negotiating body slavishly to follow every aspect of the guidance, and the clause does not require it to do that. However, it is important that the body has regard to the guidance.
  I do not have much more to add, except to say that we do not necessarily want to restrict the issues that will be covered in the guidance. Certainly, however, important issues should be covered, such as affordability and modernisation of the service. The wording that the noble Baroness has suggested involves issues to which some elements within the negotiating bodies would like less emphasis to be given. We believe those issues to be very important if we are to have the sort of fire and rescue service that the public expect and that public protection demands. I hope that, in that light, the noble Baroness will feel able to withdraw her amendment.
  4.15 p.m.
  Baroness Turner of Camden: I thank my noble friend for that explanation, although I am rather disappointed that he cannot accept our wording, because I still think that it is more in line with some of the previous assurances that we were given about trade union rights, the rights of free collective bargaining, and so on.
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  However, I am not going to press the amendment at this stage. We shall have to consider the issue again on Report because, as the clause stands, it involves negotiating bodies having to do what the Secretary of State says that they must do—even though the Minister has said that it does not mean that negotiating bodies have to follow slavishly whatever the Secretary of State says. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 118 not moved.]
  Clause 32 agreed to.
  Clause 33 [Pensions etc]:
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 118A:
  Page 16. line 13, at end insert—
  "(ea) provide for the making of payments to the Secretary of State out of a fund to which contributions have been made under the scheme;"
  The noble Lord said: The amendment rectifies a potential gap in the powers to establish arrangements for the funding of fire and rescue service pensions. The White Paper, Our Fire and Rescue Service, said that we would introduce,
  "alternative arrangements for local authority funding of Service pensions, in consultation with the fire and rescue authorities".
  In 2001, a joint Treasury/Home Office/DTLR team reviewed the current finance arrangements for funding police and firefighter pensions. The recommendations of the review have already been accepted by Home Office Ministers. The underlying principle of a scheme along the lines recommended is that the Government would pay the pensions bills and that employers and employees would pay their contributions to the Government to meet future liabilities.
  In practical terms, authorities would pay pensions from a separate pension account to which employers and employees both contribute. Normally, a payment would be made by the Government to the fire and rescue authorities to balance the account at the end of the year. Provision for those payments could he made under Clause 33(2)(e). However, it is possible that an authority's pensions account will be in surplus at the end of the year—in other words, that the contribution that it and its employees make to future liabilities will exceed its existing pensions payments. Therefore, to ensure that the system works in a fair and consistent way, and to protect the national taxpayer and other authorities, we need to ensure that a balancing payment could be made to central government. The new Clause 33(2)(ea) would permit provision to be made for this. I therefore respectfully request noble Lords to accept this amendment. I beg to move.
  Baroness Hanham: I had not caught up with the fact that there were to be new arrangements for the fire service and the police. They were never fully funded pensions; they were funded from income. They have been a great burden on local authorities and on police and fire authorities. I apologise for not having realised that that was the situation; it is my fault and nobody else's.

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  The situation now is that everything will be funded by general taxation rather than by council tax or local taxation. Payments will be made by the firefighters into a fund that will be their part of the contribution. With the amendment, an overpayment into that fund can be passed to the Secretary of State as part of the pension arrangements. I am just trying to reassure myself that that is what is being said and that the funding is now in the Government's hands rather than in the hands of local authorities or fire authorities. I am happy to have a written reply on that, if the Minister wishes.
  Lord Evans of Temple Guiting: There are two questions, and I would like to put the answers on record because, if I do not, they might come up again on Report.
  The first question is on whether the amendment will mean that people's pension funds are at risk of pilfering by the Government. I know that that is a rather emotive word. With such a finance arrangement, there would be no pension fund, simply a separate pensions account into which employers and employees contributed. At the end of the year, the account would be made to equal zero. In most cases—I stress that—that will mean a payment to the account by central government, as it is more likely that employee and employer contributions will not be sufficient to meet the pensions awarded in a particular year. In some years and for some authorities—we expect such occasions to be very rare—the pensions account may be in surplus. It would be right and proper to protect the national taxpayer by returning the funds to central government for use elsewhere.
  In answer to the specific question, I must say that it is not the case that the fund will be funded from central taxation. It will be a mix of council tax and government grants, as at present. I realise that that is an outline reply. If the noble Baroness, Lady Hanham, would like a more detailed reply, I would be happy to let her have it before Report.
  Baroness Turner of Camden: Does what we have just been told mean that the taxpayer, so to speak, will stand behind the pension promises made to the employees involved?
  Lord Evans of Temple Guiting: Yes. I can confirm that that is the case.
  Baroness Hanham: I would be happy to be directed to wherever the decisions have been made on the new pension scheme. If anyone could take the time to write out for me the detail of how it will work, I would be enormously grateful.
  On Question, amendment agreed to.
  Baroness Hanham Baroness Hanham moved Amendment No. 119:
  Page 16, line 14, leave out paragraph (f).
  The noble Baroness said: This is a simple amendment. It merely seeks to remove the power that paragraph (f) would give, empowering the Secretary of
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  State to intervene in the list of the scheme of pensions. The paragraph is suspiciously vague, as it allows the Secretary of State to substitute,
  "for any purpose of the scheme".
  Perhaps the Minister would enlighten us as to what circumstances he envisages encouraging the Secretary of State to make use of the powers under paragraph (f). I beg to move.
  Lord Bassam of Brighton: The noble Baroness has read too much into the paragraph. It is more benign than she imagines. The amendment would have some unfortunate consequences. Clause 33(2)(f) enables any pension scheme made under the clause to make provision for persons who have been employed by a fire and rescue authority and transfer to central service to remain members of the pension scheme with the same benefits. That is what the clause does. It replicates Section 26(2)(d) of the Fire Services Act 1947, which over the years has enabled the Firemen's Pensions Scheme Order 1992 to make provision relating to the pension arrangements for persons employed on central service—for example, as a member of Her Majesty's Fire Service Inspectorate, or at the Fire Service College.
  If any members of the firefighters' pension scheme could not remain members of the scheme while in the employment of the Secretary of State, it would make being part of the central service somewhat less attractive, and it might well deprive central government—important bodies such as the inspectorate or the Fire Service College—of good-quality candidates for their posts. That is what the clause does, and that is its origin. I hope that that helps the noble Baroness to withdraw her amendment. I assure her that there really is no sinister import.
  Baroness Hanham: I thank the Minister for that explanation. One has some justification for seeing the matter as much wider than the Minister detailed, as one could substitute the Secretary of State "for any purpose" on the scheme. The Minister's reply left it as being a rather limited intervention, which does not seem to be borne out by the clause. I hear what the Minister has to say. I will think about this further. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Hamwee Baroness Hamwee moved Amendment No. 119ZA:
  Page 16, line 31, leave out paragraph (k).
  The noble Baroness said: This amendment removes paragraph (k), which provides that a scheme can exclude or modify rights to compensation or damages. It is a probing amendment. Perhaps the Committee could be told a little more about how compensation would be taken into account. Does this paragraph mean that all compensation or damages might be excluded? I understand that there might be arguments, but I do not think that they would completely answer the case, as firefighters contributing to the scheme will be contributing to compensation. I am unclear about how the pension

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  scheme may inter-relate with provisions for compensation or damages. I would be interested to hear how this is expected to operate. I beg to move.
  Lord Bassam of Brighton: I respect that this is a probing amendment, trying to understand better how the scheme works. As I understand it, it would remove a provision that protects public funds from paying separate benefits to a person for the same injury. Paragraph (k) replicates provision in the Fire Services Act 1947, and one would probably say that it has been accepted as fair and reasonable in the past. It would be helpful if I explained in some detail the purpose of the provision by reference to current practice under the firefighters' pension scheme 1992.
  4.30 p.m.
  I can assure Members of the Committee that pensions are protected. It is accepted that a member of any pension scheme who has paid contributions is entitled to any pension that may come into payment. Pensions are deferred pay. There are very limited circumstances in which a pension may be reduced in connection with a conviction for a criminal offence when, for example, the pensioner has committed the offence in connection with his service as a firefighter.
  However, Clause 33 provides not only for pensions but also for the payment of other benefits, either as part of the pension scheme or in separate schemes. Those benefits are usually related to death or injuries that occur in the course of duty. At present, the firefighters' pension scheme provides for the payment of death and injury benefits, which allow a fire and rescue authority to pay compensation for injuries received in the execution of duty—what is called a qualifying injury. The person is entitled to that, and the fire and rescue authority must be satisfied only that the injury occurred as a result of duty: no element of fault on the part of the authority or its employees must be proved. The injury award is calculated on the basis of loss of earnings capacity.
  However, if the person injured is also entitled to some other benefit, such as incapacity benefit from the Department for Work and Pensions, the fire and rescue authority may reduce the injury benefit payable under the pension scheme by an equivalent amount. That ensures that the state is protected against double payment.
  At present, a firefighter is also entitled under his/her conditions of service to compensation payments for death and serious injury as a result of an accident on duty. That compensation is no-fault and negligence does not have to be proved. We intend as part of our modernisation of the pension and death and injury arrangements to bring the pension and conditions of service compensation payments together in a separate death and injury scheme, which will be made under Clause 33 powers. The conditions of service provisions provide for any compensation to be abated by any damages or compensation which the employee or his dependants may receive. Thus if a person successfully pursues a civil claim against a fire and rescue authority or a property owner, or receives criminal injuries
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  compensation in relation to the same incident, benefits will be reduced accordingly. Any death and injury scheme that we bring forward will be subject to consultation under subsection (5).
  I hope that Members of the Committee will recognise that paragraph (k) is designed, not to enable members of any pension or other scheme to be disadvantaged, but to ensure that there is an appropriate, fair and balanced provision that protects a fire and rescue authority. I hope that, having heard my explanation, the noble Baroness will feel able to withdraw her amendment.
  Baroness Hamwee: That is helpful. One of my concerns was that an injured firefighter might not be able to make a claim because the scheme covers the situation, when he or she would have been paying for the benefit under the scheme. My concern was that such firefighters would have been excluded from claiming outside the scheme or would have to pay in part for their own compensation.
  The Minister's remarks on consultation were helpful. Did I understand him to say that, in bringing together the different elements of the scheme, this would not be operated until the new arrangements were put in place?
  Lord Bassam of Brighton: That is the case.
  Baroness Hamwee: I am grateful. That gives people who understand the situation better than I do the opportunity to talk about it before the provision comes into effect. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Hanham Baroness Hanham moved Amendment No. 119A:
  Page 16, line 35, at end insert—
  "( ) The Secretary of State shall provide a separate flexible pension scheme for firefighters employed on the retained duty system within six months of the enactment of this Bill."
  The noble Baroness said: We have tabled Amendment No. 119A more or less in the same terms as one put forward by the honourable Member for Teignbridge in another place, to again try to press the Government on their intentions for pensions provision for the fire service, in particular retained firefighters.
  The amendment would compel the Secretary of State to provide a pension scheme for retained firefighters within six months of enactment of the Bill. Retained firefighters should have access to a pension scheme in the same way as other employees of a fire and rescue authority. Retained firefighters have been excluded from the current arrangements, although they benefit from the ill health and injury provisions if they are injured while carrying out their duties.
  When the Minister talked about the review team I think he said that pensions would be included in that review. If he said so, I would be grateful if he could confirm it once more. If he did not, can he tell us whether the Government are committed to making

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  proper pension arrangements for retained firefighters? If he could expand on the issue, I would be grateful. I beg to move.
  Lord Evans of Temple Guiting: We are agreed that retained firefighters should have access to a pension scheme in the same way as other employees of a fire and rescue authority. They have been excluded from the current arrangements, although they benefit from the ill health and injury provisions if injured in the course of firefighting duties.
  We believe that retained firefighters should be regarded as part-time employees and should receive the same benefits as those part-time firefighters who work regular hours. That means that we should seek to ensure that they are members of the same pension scheme as other firefighters, whether full or part-time. We indicated that in the note on the regulation-making powers in Clauses 33 and 35 and which we provided for the information of the Committee. In it we said that,
  "we expect that the new scheme will be suitable for regular and retained firefighters alike".
  We will publish for consultation our proposals for new pension arrangements for firefighters later this year. Those proposals will cover the arrangements available for the retained firefighters.
  For the sake of clarity, and going back to the previous amendment, I say to the noble Baroness, Lady Hanham, that it is important to stress that Clause 33(2)(a) to (1) sets out the options for how the new scheme would work. Obviously there will be a period of consultation before the way ahead is mapped out. Given that reassurance, which I hope is fairly watertight, I respectfully ask the noble Baroness to withdraw her amendment.
  Baroness Hanham: I am grateful for that clarification, which is about as clear as it could be. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 33 agreed to.
  Clause 34 [Information in connection with pensions etc]:
  Baroness Hamwee Baroness Hamwee moved Amendment No. 119B:
  Page 17, line 24, at beginning insert "with the consent of the individual concerned"
  The noble Baroness said: In Clause 34(1), a fire and rescue authority is enabled to provide information in connection with questions set out in subsection (2), which are ones about an individual. That is in the "prescribed circumstances" set out in subsection (1). We do not know what those circumstances may be. It is a matter of principle that disclosure of personal information should normally require consent, which is the thrust of my amendment.
  Subsection (2) deals with questions relating to the Financial Services and Markets Act 2000. Having looked at the relevant section, I cannot say that I am hugely the wiser. I rather expected not to be, given the legislation concerned. There may be something particular about the financial services regulations
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  involved; nevertheless, I would be grateful if we could hear from the Minister how the provisions are to operate and whether information about an individual might be given without consent as the clause stands. I beg to move.
  Lord Bassam of Brighton: I understand where the noble Baroness is coming from on the amendment. As a general rule, it has to be right that consent must be given. However, the amendment is unnecessary. The clause is designed to deal with the problem of mis-selling of pension provision. If a firefighter were persuaded to opt out of the firefighters' pension scheme and subsequently realised that he had been misled by the potential benefits of the alternative purchased scheme, he would be entitled to seek redress.
  Action would be initiated by the firefighter, and Clause 34 enables the fire and rescue authority employing him to provide the necessary information for the compensation to be calculated. Once the calculation has been completed, the firefighter's position in the firefighters' pension scheme is restored to what it would have been had he not opted out.
  The amendment is not required to achieve what it seeks because the claim can proceed only by consent. I hope that the noble Baroness will feel able to withdraw her amendment.
  Baroness Hamwee: The claim for mis-selling will obviously proceed only if the firefighter decides to proceed with it. Is that not the same as someone in any employment, where the sanction for not saying to the employer, "Yes, you can hand over information", is that the matter will not get very far? I am not immediately persuaded that this example is any different. As the Minister accepts, there are points of principle here. However, I am clearly not going to pursue the matter today. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 34 agreed to.
  Clause 35 agreed to.
  On Question, Whether Clause 36 shall stand part of the Bill?
  Baroness Hanham: The provisions here are very curious. I am speaking on Clause 36 stand part to flush out from the Government what lies behind them. The clause deals with the prohibition of employment of police officers as firefighters or support staff by fire and rescue authorities. That piece of legislation was repealed once before by the 1958 amendment to the 1947 Act, giving fire authorities the opportunity to appoint police officers to those roles.
  We see very little justification why that rather draconian clause should stand part of the Bill. The White Paper sets out a vision for the fire service that is flexible, effective and diverse. It recognises that retained firefighters currently comprise 30 per cent of the total workforce and are in control of 60 per cent of the appliances at any one time. The clause would again hit the retained service. As we have already discussed, there are severe problems associated with the recruitment and

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  retention of retained firefighters. Surely we should do everything that we can to maintain that aspect of the service.
  There appears to be some variance with Clause 36, which would automatically exclude one group of skilled professionals from employment as retained firefighters. Using Nottinghamshire as an example, there are currently four serving police officers employed by the fire authority in a retained capacity. Plainly they cannot do so while they are acting as police officers, but they are presumably given leave to act in a retained capacity. If the Bill is passed as the Government intend, these people would have to be dismissed, with a resulting drop in the availability of cover and the denial of a valuable service to the public. It would of course affect other authorities which currently employ police officers.
  4.45 p.m.
  The clause will have a direct and immediate impact on emergency and service provision. As I understand it, there have been no examples of any conflict of interest caused by this professional relationship. I hope that the Minister will be able to persuade the Committee of the value of the clause. If he cannot persuade us, perhaps he will rethink the Government's determination that this clause should stand part of the Bill.
  Baroness Hamwee: In the Commons, the Minister said that a member of a police force was someone attested as a constable. The discussion then was about special constables. Can the Minister say whether community support officers are members of police forces for the purpose of this clause? Life has moved on, perhaps, since the Government first began to draft the Bill.
  Lord Bassam of Brighton: It is worth noting that Clause 36 simply re-enacts Section 32 of the Fire Services Act 1947 in providing that no member of a police force may be employed as a firefighter. We have checked on the point made by the noble Baroness, Lady Hanham, about the repeals of 1958 and it is not our advice that the provision was repealed then; that is not our understanding of the situation at all. I appreciate that the noble Baroness is referring to the case in Nottingham, of which we are aware. However, we believe that she has been misadvised.
  We think that there could be a conflict of roles at an incident if an off-duty police constable were employed as a retained or part-time firefighter; there might be confusion over which employer had the primary claim on the officer's services. It should be remembered that an off-duty police constable is expected to assume police duties in the event of witnessing the commission of a crime or a threat to public order. This means that if a member of a police force were able to become a retained or part-time firefighter there would always be the possibility of a conflict between his duties as a police officer, on the one hand, and his duties as a firefighter, on the other.
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  In the other place it was suggested that the provision would exclude the possibility of a fire authority from entering into a contract arrangement with the local police force to discharge some, or perhaps all, of its road traffic authority duties. I want to make it clear that that is not our intention. The prohibition is on employment as a member of the fire and rescue service. The provision is not intended to prohibit a police constable taking secondary employment.
  I take the point about the shortage of retained firefighters but, given the small numbers affected by this provision in, say, Nottinghamshire, we do not feel it is a major issue in the terms suggested by the noble Baroness.
  I reiterate that there could be confusion at times of emergency over which employer had primacy and an ultimate claim on an officer's services. It is worth remembering that retained firefighters can be called out at no notice and that there could therefore be an impact on their ability to perform their next shift of police duty; the one could overlap with the other. The responsibility to provide for medical retirement and ill-health pensions may not be clarified or clearly understood, and the police service may have to cope with the consequence of long-term absence from duty if an officer were injured while employed as a firefighter. There are difficulties. The boundaries between the two jobs require that clarity. That is one of the reasons that the provision was included.
  In response to the noble Baroness, Lady Hamwee, community support officers are not attested in the same way as police constables and so the prohibition does not apply to them. I am grateful to her for raising that useful point.
  Baroness Hanham: I thank the Minister for that short reply. It is our understanding that that aspect of the legislation was repealed by the 1958 amendments, but we need to check that before returning to it. I think that we will return to the matter at a later stage because, although I understand what the Minister says about potential conflicts of interest, we all operate in many walks of life and must understand which hat we are wearing at any given moment. We are talking about only the retained section of the fire service. If police officers were acting as retained firefighters it would have to be abundantly clear that that is what they were doing and by whom they were employed. If there were a conflict of interests, I have no doubt that the police force would not permit them to go. On the other hand, there may be times when off-duty police officers taking part in the retained force would be enormously valuable.
  Such a conflict of interests might not be as sharp between other employees, but it is not far removed from other areas where there are difficulties with pensions and insurance provision.
  The matter needs to remain open to discussion. I hear what the Minister says. We are likely to return to the matter.
  Clause 36 agreed to.
  Clause 37 [Duty to secure water supply etc]:
  Baroness Hanham Baroness Hanham moved Amendment No. 120:
  Page 18, line 37, leave out "(but must pay reasonable compensation for the water)"
  The noble Baroness said: In moving Amendment No. 120, I shall speak also to Amendments Nos. 122, 123 and 124. Their purpose is to remove the burden of cost from fire authorities to water suppliers for the maintenance and decommissioning of fire hydrants where others have caused damage through vandalism or improper use.
  Although water providers are required to install hydrants at the request of fire authorities, the cost of installation, maintenance and decommissioning falls on the fire authority. We are concerned that the cost of maintenance and decommissioning places a large financial burden purely on the fire service despite other users causing damage, either through vandalism or improper use, and the call to decommission fire hydrants coming from the Government in the form of Defra.
  Operational crews have traditionally spent a significant amount of time on fire hydrant inspections. In rural areas, that has meant real costs where retained crews are paid to carry out that work. In full-time areas, the costs are notional, but the real effect is the reduction in time left to carry out other tasks such as fire prevention work.
  Let me illustrate the point. Dorset is a medium-sized brigade with a fire hydrant stock of around 13,000 hydrants. It decided at the start of the last financial year to employ hydrant technicians. The total cost of such a provision, together with administrative costs and the budget for repair and maintenance, is around £125,000 a year. If that figure were then used pro-rata across the 49 brigades in England and Wales, we would be looking at a total cost of around £10 million a year.
  The savings could also be redistributed to pay for preventive measures to support the greater fire safety role of the fire service proposed in the bill. It would also allow crews who used to inspect fire hydrants to devote more time to community fire safety work.
  Such a move would provide transparency of the complete costs of water to rate payers. Ofwat could monitor costs on maintaining fire hydrants to ensure consistency and that communities were not overcharged.
  Amendment No. 120 would remove the burden on a fire authority to pay for the water used in an emergency. That seems a strange situation, and it raises the undignified spectre of the lead fire officer on an appliance carrying his credit card around in case he is called to a fire.
  Amendment No. 121 is a drafting amendment, designed to tighten up the language in the clause by making it clear who is entering into an agreement. Amendments Nos. 122, 123 and 124 are the key amendments that address the issue that I have spoken to and would remove from the fire authority the
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  burden of funding the installation, inspection, maintenance and decommissioning of fire hydrants. I beg to move.
  Lord Bassam of Brighton: I am grateful to the noble Baroness for explaining the thinking behind her amendment and for the Dorset example. As I understand it, the amendment would remove from Clauses 37 and 38 the requirement on a fire and rescue authority to pay for the supply of water for firefighting purposes, except where the provision of free access, as defined by Section 147 of the Water Industry Act 1991, would apply.
  The provisions replicate the statutory position under Section 14 of the Fire Services Act 1947. Removing them would not enable fire and rescue authorities to have free access to water. The purpose of the provision is to require an authority to pay where necessary. Free water from water undertakers is already provided by Section 147 of the Water Industry Act 1991, to which Clauses 37 and 38 refer.
  It is interesting that the noble Baroness should have raised the matter. I recall the legislation being passed in 1991, on her party's watch. There was concern then that the fire and rescue authorities would end up paying for water, where they previously had not. That idea was properly dispelled at the time by the government, who ensured that there was free water.
  Section 147 provides that no charge may be made by any water undertaker in respect of water taken for the purpose of extinguishing fires or for any other emergency purpose; for the testing of apparatus or equipment used for extinguishing fires or for training for firefighting; or for making water available for such purposes. Clause 37(2), however, requires a fire and rescue authority to pay for water obtained from a person other than a water undertaker with whom an authority may enter into an agreement under Clause 40. The exclusions set out in Section 147 of the Water Industry Act 1991 still apply.
  Amendment No. 120 would have the unfortunate consequence of making it unclear whether any agreement that a fire and rescue authority may enter into under Clause 40—namely, to secure the supply of water under the control of a person other than a water undertaker—could provide for the payment of compensation. The present statutory arrangements work well, and we see no need to change them.
  Amendment No. 124 would remove the requirement that expenses incurred by water undertakers in marking the location of a fire hydrant with a notice or distinguishing mark should be paid for by a fire and rescue authority. Water undertakers are obliged by Section 57 of the Water Industry Act 1991 to fix fire hydrants at convenient places at the request of fire and rescue authorities, and, under subsection (5), an authority is required to pay the expenses incurred by an undertaker in installing and maintaining the fire hydrants. It would, therefore, be inconsistent for the water undertaker to carry the cost of marking the location of such hydrants. The noble Baroness explained the mathematics. Although any saving for fire and rescue authorities might be welcome, the

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  balance of responsibilities has been properly struck. I doubt that the water industry would gratefully receive extra burdens on their business.
  I shall be interested to hear what the noble Baroness says in response. I hope that, having heard what I said, she will feel able to withdraw the amendment.
  5 p.m.
  Baroness Hanham: I should like to consider the Minister's response. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Hamwee Baroness Hamwee moved Amendment No. 120A
  Page 18, line 37, at end insert—
  "( ) A fire and rescue authority must take all reasonable measures to ensure that it is provided with equipment suitable to make use of supplies of water available in the circumstances in which it may operate."
  The noble Baroness said: The Minister may wonder where this has come from; it is based entirely on my own experience. The amendment is not very elegant, but it would ensure that an authority must,
  "take reasonable measures to ensure that it is provided with equipment suitable to make use of supplies of water available".
  Some years ago I was in Scotland for New Year's Eve. We had planned to go out to dinner at a hotel on the edge of a loch. As we were driving towards the hotel we saw a glow in the sky. As we got closer, the glow was that of an hotel going up in flames. However, we had booked at the hotel next door, so we did have our dinner, if somewhat later than planned. However, what was unnerving was the fact that the fire appliance was fitted with a hose to enable it to take water from the loch, but it was not long enough and could not reach the water.
  Obviously I am talking about a remote location and about an incident that would not occur very often. However, it made one wonder how that situation had come about. I look forward to any comments the Minister may wish to make. I beg to move.
  Lord Evans of Temple Guiting: As we have heard, this amendment is concerned that fire and rescue authorities, having secured an adequate supply of water, also secure the equipment needed to use it for fighting fires or for their other duties.
  Clauses 7 and 8, which deal with firefighting and road traffic accidents, already state that an authority must secure the provision of the equipment necessary efficiently to meet all normal requirements. A hose that can reach from a loch to the nearest building would be a normal requirement. Any order under Clause 9 may also require an authority to secure the provision of the appropriate equipment.
  I can therefore reassure the noble Baroness, Lady Hamwee, that the provision of equipment to utilise a water supply is already covered by other clauses in the Bill, and hence the amendment is unnecessary. However, perhaps I may cite an example that is not a million miles away from the experience of the noble Baroness. Let us take the case of a fire and rescue
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  authority covering a remote area with extensive moorland or forest. It may require the use of helicopters or other specialist equipment to transport water. Would that authority have the power to acquire such equipment?
  It is the responsibility of the fire and rescue authority to make an assessment of the equipment required to meet all normal requirements for extinguishing fires in its area and protecting life and property in the event of fires breaking out. If the authority believes that it may need specialist equipment, it must make arrangements for it to be available either on a permanent basis or as the need arises.
  I hope that, with my explanation, the noble Baroness will feel able to withdraw her amendment.
  Baroness Hamwee: I had hoped that I was going to be told that this was covered elsewhere in the Bill. The term "power" has just been used, but we are talking here about more than a power, we are referring to a duty. That is the language used in Part 2. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 121 and 122 not moved.]
  Clause 37 agreed to.
  Clause 38 [Supply of water by water undertakers]:
  [Amendment No. 123 not moved.]
  Clause 38 agreed to.
  Clauses 39 and 40 agreed to.
  Clause 41 [Fire hydrants]:
  [Amendment No. 124 not moved.]
  Lord Hanningfield moved Amendment No. 125:
  Page 20, line 12, after "authority" insert "authorised by an agreement made under section 38"
  The noble Lord said: This amendment would amend subsection (6) dealing with the circumstances in which a hydrant is permitted to be used other than for the purposes of firefighting. Hydrants are used primarily for firefighting, but they can be used for other purposes such as in construction works or by local authorities.
  Water undertakers are commercial businesses. If they enter into arrangements with people who want to use their water supplies, they should make a commercial charge for allowing them to do so. There is no problem with that. However, subsection (6) limits the offence to anyone taking water from a fire hydrant other than,
  "(a) for the purposes of fire-fighting or for any other purposes of a fire and rescue authority, or
  (b) for any purpose authorised by the water undertaker or other person to whom the hydrant belongs".
  Therefore the Bill seems to create a gap. Fire and rescue authorities can take water without agreement or consent for firefighting purposes, as has always been the case, while others can take water for any purpose that has been agreed with the statutory undertaker or the owner of the fire hydrant. However, the subsection

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  creates a situation in which a fire and rescue authority can take water by right for any purpose, such as filling someone's swimming pool, so there is an anomaly.
  At present, a fire and rescue authority would be able to take water without paying for it. That could give the authority a commercial advantage over other suppliers. This amendment would remedy that by limiting the right of a fire and rescue authority to take a supply of water for purposes other than firefighting to circumstances in which it had entered into an agreement with the water undertaker under Clause 38. I welcome the Minister's thoughts on this issue. I beg to move.
  Lord Bassam of Brighton: This amendment to Clause 41(6), which itself criminalises the use of a fire hydrant other than for firefighting or other authority purposes, would have the effect of requiring any agreement between a fire and rescue authority and a water undertaker under Clause 38 to specify the purposes other than firefighting for which a hydrant may be used.
  The authority would have no authority under Clause 38 to secure water for other purposes and no agreement could go further. If an authority wished to use water from a hydrant for purposes other than firefighting, it would require the consent of the water undertaker and would have to pay for the water in the same way as any other licensed user of a hydrant.
  I understand that some honourable Members in another place were concerned about the anomaly of firefighters using hydrants to fill ornamental lakes or swimming pools. Such activities are not part of the statutory functions of a fire and rescue authority and I do not imagine that it is usual for firefighters to spend time on such activities. If they did, however, it could be done only with the authority of the water undertaker or other person to whom the hydrant might belong, and a charge could be made for the water.
  We do not think that there is an anomaly here. I am grateful to the noble Lord for pursuing the point, but we believe that any mischief that might arise is adequately covered.
  Lord Hanningfield: I thank the Minister for those comments, although I do not think that they totally clarify the situation. If the Minister recognises that there is an anomaly, then it is clear that we do not want one to be there. Firefighters have been known to do things without necessarily securing a triple authorisation. Circumstances could arise where water might be used for the wrong purposes.
  I shall look at the response given by the Minister and we shall consider whether we want to return to this further along the road. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 41 agreed to
  Clause 42 agreed to.
  Clause 43 [Powers of fire-fighters etc in an emergency etc]:
  Lord Hanningfield Lord Hanningfield moved Amendment No. 126:
  Page 21. line 2, at end insert—
  "( ) if he reasonably believes a fire to be about to break out, for the purpose of preventing the fire or protecting life or property:"
  The noble Lord said: Clause 43 deals with the powers of firefighters in an emergency. Amendment No. 126 is intended to provide an essential extension to the powers proposed in the Bill. It would enable firefighters to deal with a situation in which a fire was about to break out.
  Powers are provided in the Bill for a firefighter to,
  "do anything he reasonably believes to be necessary—
  (a) if he reasonably believes a fire to have broken out, for the purpose of extinguishing the fire or protecting life or property".
  There are similar provisions in relation to road traffic accidents and other emergencies. Subsection (1)(d) refers to acting,
  "for the purpose of preventing or limiting damage to property resulting from action taken as mentioned in paragraph (a), (b) or (c)".
  However, what is not provided for in the case that I have mind is breaking into premises to prevent the outbreak of a fire. In the other place, the Minister for Local and Regional Government expressed a sympathetic disposition towards the principle behind Amendment No. 126 when it was tabled there. He said:
  "we are prepared to be convinced by stronger evidence and I would welcome any further operational examples of how the existing powers may be insufficient to enable firefighters to deal with a threat of fire. If such evidence is provided and proves to be robust, I would be more than happy to explore the issue further with a view to amending the Bill to accommodate the wish behind [the amendment)".—[Official Report, Commons Standing Committee G, 2/3/04: col. 355.]
  I accept that the example in which a firefighter becomes aware that a gas leak has occurred on some premises and that there is also a source of a naked flame, and that he or she needs to break in to do something about it, is not a particularly compelling illustration of the work that firefighters carry out in the 21st century. But, in order to try to persuade the Government on this, I have been in touch with representatives of the Chief and Assistant Chief Fire Officers Association, who have told me that they would like to see the amendment adopted.
  They say that it is often vital to enter neighbouring premises to those in which a fire has occurred in order to ensure that the fire is not spreading. A fire may spread via a common roof void, chimneybreast or other opening in a party wall. These "holes" are more common in old buildings and often pipe work going through a wall is a source of the hole, particularly if it is not fire-stopped properly. The pipes may also transmit the heat and ignite combustible material on the other side.
  In the example that I have been given courtesy of the chief fire officer of my own Essex Fire Authority, he recalls attending a fire on Canvey Island at an industrial unit, where the burning building had a metal roof. The roof became so hot that it ignited roof insulation material

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  in a neighbouring unit, which fell burning onto combustible goods, starting another fire. He needed entry to every unit in the block urgently hut, as it was a Sunday, there were no key holders present. Fire authorities would need power of entry in such cases, and it would be absurd if in similar situations firefighters had to wait outside until they first saw the fire before breaking into the premises and dealing with the situation. That would not be in anyone's interests.
  The Essex Fire Authority chief fire officer has also indicated to me that people passing a property and who hear a smoke or fire alarm sounding often call the fire service. The firefighters attend and no one answers the door—they may be out or they have been overcome by smoke and are unconscious—but. because the firefighters cannot see the smoke or the fire, should they wait until they can?
  The power sought by Amendment No. 126 is essential; if it does not exist, firefighters must have it. We must avoid putting firefighters in a situation in which they have to stand by and watch something disastrous happen or act outside the law. But that is what could happen under the Bill as currently drafted. Fire authorities have told us that they need this power and that its absence is a gap in the panoply of powers that Clause 43 confers on them.
  Representatives of fire authorities have told me that Clause 43 is a good codification of their powers but that they need to be able to take preventive action as well. The amendment is needed to provide a robust means of preventing a legal challenge to the actions of the fire service in circumstances that would logically require a legitimate and proactive intervention to prevent harm to life or damage to property. This falls in well with the whole thrust of the Bill—prevention and acting before fires occur as opposed to regarding the fire service simply as an organisation that extinguishes fires and deals with the after-effects of a disaster.
  I recognise that those who drafted the legislation were perhaps a little concerned that this might be too wide a power and could be used injudiciously. Clearly one expects the fire services to use such a power judiciously.
  Amendment No. 127 deals with a slightly different point in relation to subsection (1)(c). That subsection gives powers to firefighters in case of an emergency of another kind in respect of which functions have been conferred on the fire and rescue authority. It is called a "Section 9 emergency", in respect of which the Secretary of State has conferred functions on the authority. The powers given under subsection (1)(c) are,
  "for the purpose of discharging any function conferred on the fire and rescue authority in relation to the emergency".
  So unless the conferring of a function specifically includes the function of protecting life and property, that power could not be exercised under the provisions of that subsection to protect life and property.
  The Minister may envisage that every function that he confers under Clause 9 will include the specific function of protecting life and property. The amendment would make that a general provision, so that whatever the function established under Clause 9, be it a function of preventing, of rescuing people from flooding, or cleaning up the aftereffects of nuclear or chemical contamination, there would always be an overarching reference to the function of protecting life and property. It would authorise a member of a fire and rescue authority in the way envisaged in the clause and return the focus to the principal purpose that a fire and rescue authority and its employees must have in mind—protecting life and property. I hope that the Minister accepts that the amendment focuses on that prime responsibility.
  Finally, Amendment No. 128 is a probing amendment designed to elicit from the Government whether power conferred on fire authorities in subsection (1)(c) would allow them to deal effectively and proactively with a flooding emergency. For example, would they be able to break into flooded premises to prevent the flooding of a neighbouring premises? I beg to move.
  5.15 p.m.
  Baroness Hamwee: When this issue was debated in Committee in the Commons, the Minister said that there may be circumstances in which it was thought that there was a risk of fire but it would be more effective for other emergency services to effect an entry. He went on to say that the police had such powers in certain cases. Had he not gone on to that second sentence, this reader at least might have felt a little more reassured. Could we be told in what cases the police do not have the relevant powers?
  Will the Minister confirm, too, that action can he taken in respect of another property, and that the fire does not have to be in the property in question? That is how I read the Bill. The employee,
  "may do anything he reasonably believes to be necessary",
  if he believes a fire to have broken out,
  "for the purpose of … protecting life or property".
  Surely, that must extend to other situations. For example, someone living in a neighbouring property might know of someone who is disabled, who would have difficulty getting out and is endangered by a fire next door. Will the Minister confirm that the Bill is as I read it?
  Baroness Turner of Camden: I listened with great attention to the noble Lord, Lord Hanningfield, who is clearly quoting from the extensive briefing that I received from the Chief and Assistant Chief Fire Officers Association. It is a very impressive briefing; clearly, these people know what they are talking about and clearly they are anxious to protect their members from any legal challenge when they are attempting to act to prevent fires breaking out. I would therefore like to hear from the Minister that the matter has been given serious consideration, because it is very important.
  Lord Bassam of Brighton: My colleague in another place was right to express some sympathy for this

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  amendment. Obviously, one wants to err on the side of caution in these instances. I am grateful to the noble Lord, Lord Hanningfield, for bringing us his Essex example. There has been some reflection on this matter since the Committee stage in another place, but we do not feel that the amendment as it is, is required. I felt reasonably reassured by studying the words in Clause 43 and, in part, by listening to what the noble Baroness, Lady Hamwee, had to say about it.
  I understand the concern that firefighters should have the powers necessary to deal with emergencies, but, as a bottom line, we believe that Clause 43 gives them sufficient powers to deal with pretty much any eventuality that can be thought of—whether it be a fire, a road traffic accident or another emergency—or when there is a reasonable belief that such an event has occurred. The words "reasonable belief" are important in the clause.
  We are aware, because the Chief and Assistant Chief Fire Officers Association has made us aware, of some concerns that the association has about the need to have a power to enter premises by force, if necessary—
  Lord Hanningfield: The association has its own legal advice, of course. It is not only the chief fire officers who are coming up with this; legal advice that has been given to them expresses doubts about the matter. That is why I hoped that the Government might be able to strengthen the wording, or do something at least in that regard. One does not want any doubt at all, as I believe all Members of the Committee agree. If the association's legal advisers have expressed doubt, there must be something to worry about.
  Lord Bassam of Brighton: Sure, that is a fair point. However, we do not have any doubt. I thought that the example that the noble Lord gave of a situation in Canvey was not persuasive, because I cannot see in those circumstances why the fire officers felt that they did not have sufficient powers to act. Clearly, they had reasonable belief and there was a threat to property and life. I cannot really see that they did not have a power to make a direct intervention, in those circumstances.
  We are not unsympathetic, but what the amendment proposes would be a substantial extension of powers of entry for firefighters, and we remain to be convinced that the power is needed. We believe that the clause covers the eventualities such as described by the noble Lord. Although the briefing is interesting, we do not believe that a robust case has been made or has been sufficiently persuasive. However, it is always right to reflect some more on such matters.
  Amendment No. 127 would add the words,
  "and for the purpose of protecting life and property",
  to Clause 43(1)(c), which deals with the powers of firefighters to deal with emergencies, other than fires or road traffic accidents. Amendment No. 128 would add a new subsection to deal with the danger of flooded premises threatening other properties.
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  The powers in Clause 43(1) are limited to those necessary for fire and rescue authorities to be able to discharge their duties under Clauses 7, 8 and 9, and we do not believe that it would not be appropriate to go further. Thus paragraphs (a) and (b) of subsection (1) follow the wording of the duties imposed by Clauses 7 and 8. Subsection (1)(c) limits the emergency powers to the function imposed by Clause 9. The nature of the duty imposed will determine whether it is appropriate to empower firefighters to do anything that they reasonably believe to be necessary to protect life and property. Amendments Nos. 127 and 128 would not appear to be necessary or appropriate for the type of emergency envisaged by the provisions, and paragraph (c) should provide sufficient powers. We are not aware of any difficulties in the past with the way in which the earlier legislation worked.
  I can take an example of a situation in which a firefighter would have sufficient powers to break into a house or flat—if the householder had been locked out and was concerned that a pan of cooking oil was heating on a cooker. That is a reasonable example, because it is a fairly common cause of domestic fire. In those circumstances, yes, the householder, or any person acting on the householder's behalf, would be able to authorise the firefighter to enter the premises. We genuinely feel that we have more than adequate powers to cover any case of that sort.
  The noble Baroness, Lady Hamwee, raised the question of police powers. Our understanding is that the police have broad powers to protect life and limb under the Police and Criminal Evidence Act 1984, but perhaps we should check to confirm that that is the case. Having some familiarity with the matter, that is at least my understanding of it.
  I am grateful to the noble Lord for raising this important issue. However, we think that we have adequate powers, and that chief officers will be able to act in the circumstances that the noble Lord has described.
  Lord Hanningfield: I thank the Minister for his response. I will reflect on what he has said and consult the chief fire officers' organisations, because they expressed doubts about the matter.
  Lord Bassam of Brighton: Perhaps, in doing so, the noble Lord could ask them to bring forward examples of where they have been unable to take action and have simply had to stand there. If that had happened, we would be much more persuaded. But we are not aware of any circumstances having arisen that fall into that category.
  Lord Hanningfield: Chief fire officers fear that the Bill's provisions in this regard might be weaker than the current powers. That is one of the big issues that must be considered. In the light of this debate, we will discuss the matter with those concerned. I am sure that the Minister will talk to his advisers about it. I hope that the Government reflect on the issue, and I am sure that we will return to it. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 127 and 128 not moved.]
  Baroness Hamwee Baroness Hamwee moved Amendment No. 128A:
  Page 21, line 17, at end insert—
  "( ) An employee may be authorised for the purposes of subsection (1) by means of a general authorisation relating to any or all of the circumstances the subject of subsection (1) and may be contained in the employee's terms of employment."
  The noble Baroness said: This is a probing amendment. Clause 43(1) refers to an employee authorised in writing. I am sure that that cannot be on a case-by-case basis; it simply would not work that way. My amendment, which would provide for general authorisation that could be contained in a contract of employment or in the terms of employment, is designed to obtain that assurance. I beg to move.
  Lord Evans of Temple Guiting: Amendment No. 128A seeks clarification of the form that authorisation would take under subsection (1). We have deliberately not been specific about the form of any authorisation. What any employee may be permitted to do at an emergency incident will depend on their role, the competences that they have gained through training and experience, and any specialist skills they may have developed.
  With certain functions that authorisation may be contained in a fire and rescue authority's standard terms and conditions of appointment or in a letter of appointment. However, as a person may acquire additional competences through training and experience which may be specifically designed to qualify them to take on new tasks at an incident, it would be necessary for the authority to issue additional written authorisation.
  I hope that Members of the Committee will accept our need to be as flexible as possible about the form of any authorisation. I hope that the noble Baroness, Lady Hamwee, having heard that, will withdraw her amendment.
  Baroness Hamwee: With appropriate flexibility I beg leave to do so.
  Amendment, by leave, withdrawn.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 129:
  Page 21, line 22, at end insert—
  "(5) The designated officer in charge at the scene of the fire, road traffic accident or emergency is required to take command and to direct and control the deployment of fire and rescue service personnel and resources including—

  (a) the positioning of fire and rescue service vehicles and equipment,

  (b) the allocation of operational and tactical tasks and responsibilities, and

  (c) the establishment of command functions under his control."

  The noble Lord said: The amendment would adapt the powers currently bestowed by Section 30(3) of the 1947 Act. It is important in the light of Clauses 8 and 9, which make the role of firefighters—when dealing with road traffic accidents and emergencies respectively—statutory responsibilities.
  5.30 p.m.
  Section 30(3) of the 1947 Act establishes that the senior officer present at the scene of a fire is required to take,
  "sole charge and control of all operations for the extinction of the fire, including the fixing of the positions of fire engines and apparatus, the attaching of hose to any water pipes or the use of any water supply, and the selection of the parts of the premises, object or place where the fire is, or of adjoining premises, objects or places, against which the water is to be directed".
  We are deeply concerned that in the rush to give the Secretary of State as many powers as possible, the Bill has neglected the operational imperatives as they pertain on the ground. No provision bestows any specific powers or responsibilities on the most senior officer present or the designated officer in charge of an incident. No account has been taken of the inherent command responsibilities of the officer in charge of an incident in relation to Clauses 8 and 9.
  The need to recognise the "incident officer" in charge of fire and rescue resources is essential for effective command and control at the scene of operations. The officer at the scene will be expected to command the operational and tactical response of the fire and rescue service to complete the functions specified under Clauses 7 and 8.
  The authority of the incident officer in charge would also need to be established in relation to an assigned function that could include the ability to direct the activities of other agencies engaged in the completion of that function under Clause 9. In response to incidents concerning regional and national resilience, where operations will probably be large and complex, having an officer in charge will be essential to better facilitate inter-agency co-ordination.
  We will listen to the Minister's response with interest, but whether or not this lacuna is the result of an oversight in the drafting process, one does not need to spend too long imagining some of the very serious problems that may be encountered if the issue is not adequately addressed. Put simply, there must be no room for ambiguity at the scene of an incident. Clarity of role in relation to all aspects of command, control and inter-agency co-ordination may literally mean the difference between life and death.
  This is a very serious issue. I hope that the Minister will see that we are trying to be constructive. It is not a party political point but a serious issue on which all sides should be able to agree. The Chief and Assistant Chief Fire Officers Association brought the matter to our attention, so I can assure the Minister that it is endorsed from an operational perspective. I hope that the Government will give the amendment the proper consideration it deserves. I beg to move.
  Lord Bassam of Brighton: Amendment No. 129 would re-enact Section 30(3) of the Fire Services Act 1947. The difference is that responsibility for an incident would rest with a designated officer rather than a senior officer. The amendment would also add road traffic accidents and other emergencies alongside fire as incidents to which the provision applies.

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  I take on board the noble Lord's point that the amendment is moved in a spirit of consensus and a desire to be helpful, but we do not see it as necessary. Clauses 7 and 8, and orders made under Clause 9, place a duty on fire and rescue authorities to make provision to discharge their responsibilities with regard to fires, road traffic accidents and other emergencies. It is implicit that, in meeting that obligation, a fire and rescue authority must have in place appropriate command and control arrangements.
  It is vital that fire and rescue authorities have in place effective command and control arrangements to ensure that often life-threatening incidents are managed appropriately and can react to circumstances on the ground. That objective is already achieved through protocols that fire and rescue authorities are required to have in place to discharge their core operational duties.
  I recognise the spirit in which the amendment has been tabled, but it appears to serve no purpose other than to add an "avoidance of doubt" measure, which is generally regarded as unhelpful. In fact, the amendment arguably creates doubt. It is not clear precisely who the "designated officer" is or might be, and whether that person is a member of a fire and rescue authority, another emergency service or even the Armed Forces. This could, as it is drafted, result in some confusion and overlap. I am sure that the noble Lord will not forget our earlier debate, when we made it clear that from the Government's perspective we feel that the fire and rescue authority employees already have effective—some might say far-reaching—powers to respond to circumstances on the ground and in so doing ensure effective discharge of their duties.
  The amendment might add a layer of confusion. It is much better that there are effective protocols in place to deal with a wide range of emergency situations. We do not think that a specific designation, though moved in a spirit of trying to ensure that there is clarity, necessarily achieves that clarity. I suggest to the noble Lord that although some chief fire officers think that it might be necessary, there is some debate and discussion among chief fire officers, and they are not all agreed or signed up to that approach. I hope that the noble Lord will reflect further on what I have said and will withdraw his amendment.
  Lord Hanningfield: I thank the Minister for his reply. Everyone would agree that there must be some clarity about who is in charge when there is an incident. Where some horrific accident, or a big fire, has occurred, someone must be in charge of directing operations. That is what everyone wants clarity about. I have heard what the Minister said today. We need to reflect on it, and read it again for the future. Everyone would agree that no one wants any doubt about that. Someone must be in charge on the ground at these incidents. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  On Question, Whether Clause 43 shall stand part of the Bill?
  Baroness Hamwee: I wonder if I could ask a question. I apologise for not having given notice of it, but it has only just occurred to me. It is in connection with the level of penalty that can be imposed if someone is found to have obstructed action taken to deal with fires. A maximum of level 3 on the standard scale, which I think is £1,000, does not seem to be that significant an amount. The maximum penalty for false alarm is level 4, which is £2,500 or imprisonment. There is quite a disparity between the two. It is probably not fair to ask for an explanation at this point, although work is going on rather fast behind the Minister. I would be interested at some point to have an answer.
  Lord Bassam of Brighton: I have taken advice, and it is fair to say that it is a standard amount. The noble Baroness is right in her assessment that it is £1,000. I wanted to know whether there had been any representations about whether it was an appropriate level. We have received no representations. The point raised by the noble Baroness is interesting, and no doubt we will think on about it.
  Clause 43 agreed to.
  Clause 44 [Obtaining information and investigating fires]:
  Baroness Hamwee Baroness Hamwee moved Amendment No. 129A:
  Page 21, line 29, at end insert "or did not progress more than it did or cause more significant damage"
  The noble Baroness said: Clause 44 allows an authorised officer to enter premises, among other matters, to investigate what caused a fire or why it progressed as it did—quite right too. Does that cover not progressing any more—I suppose that it would—or causing more significant damage? One wants to be sure that the effects of preventative or limiting measures can be assessed. This suggests—although I am reading it more as a novel than as a technical piece of work—that the authority is limited to when a fire does progress and cause significant damage. We are all interested in seeing that fires do not. I beg to move.
  Lord Bassam of Brighton: The amendment would make explicit what is already implicit in Clause 44(1)(b). When officers investigate a fire we expect them to look closely at reasons for the lack of its progression. The advice that I have been given is that that is routinely done by officers and that nothing in the clause prevents them doing so. For that reason, the amendment is not necessary or required. However, it was a useful point to raise.
  Baroness Hamwee: I am grateful. If the matter is implicit, that is fine. As long as specific statutory authorisation to the extent needed is covered by paragraph (b), I am happy. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 130:
  Page 21, line 35, leave out from "admission" to "dwelling" in line 37 and insert "by virtue of his powers under subsection ( I) to any premises occupied as a"
  The noble Lord said: Clause 44 deals with powers of entry other than in cases of emergency. Subsection (1) sets out the scope of those powers—the obtaining of necessary information for the discharge of the functions of a fire and rescue authority or the work of investigating a fire. Subsection (3) then sets out a limitation on those powers of entry in respect of dwellings. It is in that area that the amendments bite.
  Amendment No. 130 seeks to remove the reference to admission "as of right", which seems very broad and sweeping. The claim "as of right" suggests something superior to any mere body of legislation, yet it seems that any powers exercised would not be "as of right" but by virtue of powers granted under subsection (1). The amendment would replace the sweeping expression with,
  "by virtue of … subsection (1)".
  That is a much more reasoned approach.
  Amendment No. 130 would furthermore remove the reference to "a private dwelling", substituting simply "a dwelling". Subsections (3) and (4) refer to a "private dwelling" and subsections (7) and (8) to a "dwelling". That appears inconsistent. It is simple logic that a dwelling is a dwelling; it is a place where someone lives; who owns it is immaterial. I would be grateful if the Minister could shed some light on the inconsistency throughout the clause.
  Amendment No. 131 is a consequential amendment that attempts to deal with the same issue of power of entry in relation to subsection (4).
  Amendment No. 132 would restrict the right of entry by warrant to a dwelling in a non-emergency situation to during a "reasonable" time. It is sensible to have the power to get a warrant to obtain entry to a dwelling by force if necessary, but there is no obvious reason why such entry should not be limited so that it may occur only at a reasonable time. Surely we do not want to create a regime under which entry can be effected by force in the middle of the night unless there are compelling reasons and in emergencies. Why would it not be appropriate to add such a restriction? I beg to move.
  Lord Bassam of Brighton: The purpose of Clause 44 is formally to authorise activities that the fire service undertakes now for the public good. Those could otherwise amount to trespass. The clause provides a number of safeguards to ensure that a proper balance is drawn between the rights of occupiers of dwellings and the public interest in ensuring that the causes of fires are investigated quickly and effectively.
  Subsection (3) provides that an officer may not, in exercising his powers of entry under subsection (1),
  "demand admission as of right to premises occupied as a private dwelling",
  without first giving 24 hours' written notice to the occupier. The words "as of right" refer to the officer's powers under subsection (1), and Amendment No. 130 is to that extent unnecessary.
  GC 438
  The term "private" is used in the clause in relation to dwellings to differentiate between private living accommodation, which a person should be able to occupy without undue interference, and common areas to which others might have access but which form part of premises that might be considered dwellings. Removal of "private" is therefore undesirable.
  5.45 p.m.
  Amendment No. 131 would have absolutely no effect on the clause. It would simply add words that achieve the same outcome as the original wording of the clause. Clause 46(4) places a limit on the powers of entry listed in subsection (1) and already refers back to that part of the clause.
  On Amendment No. 132, subsections (7) and (8) provide that a justice of the peace may authorise entry to dwellings without first giving 24 hours' notice in writing, or where forcible entry is needed. Although those subsections allow the justice to authorise entry at any time —and by force, if necessary—the purpose of the subsections is to provide a method of disapplying the restrictions on entry under subsections (3) and (4). They do not affect the basic position provided for in subsection (1) that the officer may enter only at a reasonable time. What is reasonable will vary according to the circumstances and will be for the justice to determine. The amendment is therefore unnecessary.
  I hope that, having heard that, the noble Lord will feel able to withdraw his amendment.
  Lord Hanningfield: I hear what the Minister says. I did not quite follow his remarks on private dwellings but no doubt I will do so after reading Hansard. We may return to the matter at a later stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 131 and 132 not moved.]
  Clause 44 agreed to.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 133:
  After Clause 44, insert the following new clause—
  "EXCEPTIONAL POWER OF ENTRY TO PRESERVE EVIDENCE
  (1) An authorised officer may enter premises in which I fire has occurred which are (or were before the fire) occupied as ) private dwelling (by force, if necessary) notwithstanding the provisions of section 44(3) and (4) if it is necessary to do so for the purposes of section 44(1)(b), and—

  (a) the entry to be effected takes place within 24 hours of the departure of fire and rescue authority employees from the premises immediately following the extinction of the fire;

  (b) an authorised officer reasonably believes that there is a serious risk of evidence being destroyed if entry is not effected with less than 24 hours notice; and

  (c) the occupier (or the person who was the occupier immediately before the fire) is unable to give consent to entry as a result of medical incapacity arising from the fire.

  GC 439
  (2) At the time of an entry authorised by this section, notice shall be given in the manner prescribed in section 44 to the occupier (or the person who was the occupier immediately before the fire) notifying him of the entry and stating the reasons for it."
  The noble Lord said: Amendment No. 133 would empower an employee of a fire and rescue authority to enter premises where a fire has occurred for the purpose of investigation within a set timeframe. For the purposes of a full and detailed investigation of a fire, it is crucial that the investigating officer can access the property in question as soon as practical after the fire has occurred. Vital evidence could be lost if a delay were to impede the investigation.
  The amendment would allow the investigating officer to enter the premises within 24 hours of a fire without undue hindrance and without first having recourse to seeking written permission. The amendment therefore establishes the principle that an officer may enter the premises only if a fire has occurred that needs investigation, rather than his simply being able to gain access to any private property on suspicion or after having given 24 hours' written notice.
  As discussed earlier, we are strongly reluctant to see included in the Bill the power to enter any property at any time without a clear basis and grounds for doing so. However, where a fire has occurred that merits an investigation, the property in question is more than likely to be unoccupied and unfit for human inhabitation. Therefore such a concern would not arise under this amendment.
  The purpose of the amendment is to remove much of what we perceive as unnecessary bureaucracy in the existing clause before entry to premises can be achieved. However, were the Minister to give some kind of assurance that the power that the amendment seeks was already suitably catered for in the clause, we would consider withdrawing the amendment. I beg to move.
  Lord Bassam of Brighton: Amendment No. 133 would disapply safeguards provided for by Clause 44. As I explained earlier, Clause 44 is intended to deal with situations where the person responsible for the premises is not available to give permission for a fire investigation to take place or is unwilling to do so.
  The clause recognises the individual's right to privacy and balances that against the public interest considerations to which fire safety investigation makes an important contribution. The use of a warrant procedure introduces the safeguard of third-party consideration by a justice of the peace. The proposed new clause would remove that safeguard in cases where the person responsible for the premises had been medically incapacitated as a result of the fire. Such a person would enjoy a lesser level of protection of their rights than they would have if they had not been injured.
  Although we recognise that there will be cases where it is necessary to protect evidence or where speed of investigation is imperative, the protection of rights is equally important. A warrant can be obtained quickly; indeed, it could be sought even before firefighting
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  operations had ceased and the fire and rescue service have ceased to have control of the property. In our view, the provision proposed is unnecessary. We think the removal of the protection is highly undesirable. For those reasons, I urge the noble Lord to withdraw the amendment.
  Lord Hanningfield: I thank the Minister for that response. We obviously want to protect the rights of the individual. We are trying to establish the right for an investigating officer to act very quickly rather than to have to wait for warrants and so on, particularly if people have been injured. If people are in hospital, we want the investigating fire officer to have the right to come to conclusions as quickly as possible. We do not want to take away any rights from individuals; in fact, we are trying to protect them. We will have to examine this important area again. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 45 [Supplementary powers]:
  Lord Hanningfield Lord Hanningfield moved Amendment No. 134:
  Page 22, line 38, after "records" insert "which he reasonably believes to be relevant to the investigation"
  The noble Lord said: Clause 45 gives significant powers of intervention and investigation to employees of a fire and rescue authority on premises that they have entered. The intention of Amendments Nos. 134 and 135 is to introduce a degree of restraint and clarity to the clause and to ensure that the powers can be exercised only when they are directly relevant to an investigation or the matter in hand. It may be argued that the authorised person must act reasonably in any event because these powers are for the purpose of investigating the cause of a fire. However, nowhere in the clause is that intention made clear. That is why the amendments are needed.
  Amendment No. 134 would limit the powers over documents to those that the employee reasonably believes to be relevant to his investigation. At present there is no restriction and the authorised officer can inspect and copy any documents and records on the premises or remove them from the premises. I cannot see any qualifying provision anywhere that the documents and records must be relevant, or reasonably believed to be relevant, to the investigation or other matter under way.
  Amendment No. 135 relates to the powers of inspection and testing and, again, seeks to limit these powers to matters reasonably considered necessary to the investigation. I beg to move.
  Lord Bassam of Brighton: The amendments seek to clarify when the powers provided under Clause 45 might be used. In our view, Amendment No. 134 is unnecessary because the powers are exercisable only for investigating the cause of a fire or fire spread pursuant to the power of entry for that purpose provided by Clause 44(1).
  The authorised person must act reasonably in any event. Reasonableness is implicit in Clause 44(1), and consequently in Clause 45, as fire authorities are public

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  bodies subject to judicial review. Taking away records not relevant to an investigation is likely to be unreasonable.
  Amendment No. 135 seeks to make explicit that which is already implicit. It is unnecessary because the limitation proposed is already contained in Clause 44(1)(b) and the powers under Clause 44(2) are exercisable only for the purpose of investigating the cause of a fire or the reason it progressed as it did.
  I am grateful to the noble Lord for having raised the issue, but we think that his desire for further detailed clarity is not necessary. The eventualities that the noble Lord seems to foresee are covered already in the legislation.
  Lord Hanningfield: I thank the Minister for that answer. There are some areas that I may need to look at again, particularly in regard to the taking of documents and so on which are not relevant. I have heard what the Minister said and I will consider further his suggestions. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 135 not moved.]
  Clause 45 agreed to.
  Clauses 46 to 52 agreed to.
  Schedule 1 [Minor and consequential amendments]:
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 135A:
  Page 36, line 20, after "authority" insert "or a Scottish fire authority"
  The noble Lord said: Amendments Nos. 135A and 135B would amend Schedule 1 to make minor consequential amendments to the Pensions (Increase) Act 1971 and to the Severn Bridges Act 1992. Unfortunately, they were not picked up at an earlier stage in the drafting. I apologise to the Committee. I beg to move.
  On Question, amendment agreed to.
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 135B:
  Page 45, line 4, at end insert—
  "Severn Bridges Act 1992 (c. 3)
  78A In section 8 of the Severn Bridges Act 1992 (vehicles subject to tolls), in subsection (5)(a) for "fire authority under the Fire Services Acts 1947 to 1959" substitute "fire and rescue authority"."
  On Question, amendment agreed to.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 135C:
  Page 47, line 21, at end insert—
  "92A In section 99 of the Local Government Act 2000 (c. 22) (allowances and pensions for certain local authority members), after subsection (2) insert—
  "(2A) A fire and rescue authority constituted by a scheme under section 2 of the Fire and Rescue Services Act 2004 or a scheme to which section 4 of that Act applies shall be treated as a local authority for the purposes of subsection (1).""
  The noble Lord said: This amendment would allow the allowances of members of fire and rescue authorities to be pensionable in England and Wales. The Welsh Assembly has identified that Section 99 of the Local Government Act 2000 does not permit such pensions. Welsh fire authorities have repeatedly called for consistency of treatment with pensions in respect of allowances received by county councillors and for the allowances of fire authority members to be pensionable.
  I believe that the OPDM is aware of the issue and is,
  "exploring what the appropriate legislative vehicle for taking it forward may be".
  The answer appears to be simple: this Fire and Rescue Services Bill is the ideal vehicle to make the modest amendment to the 2000 Act that is required. Perhaps the Minister could indicate whether he accepts the principle that the allowances should be pensionable and that this Bill is an appropriate vehicle to enable this in legislation. I beg to move.
  Lord Bassam of Brighton: I am grateful to the noble Lord for moving this amendment, which will enable us to reflect on what is quite an important issue for local authority members. I am rather envious, now that I am no longer a local authority member, of the fact that allowances are pensionable. That certainly was not the case in my time.
  For allowances paid by fire authorities to be pensionable, an additional similar amendment to Section 18 of the Local Government and Housing Act 1989 would be required. Section 18 contains the powers under which the regulations governing members' allowances are made. Those regulations permit certain local authorities to include in their scheme of allowances provisions for determining which members are entitled to pensions and which allowances are pensionable.
  As the noble Lord has made clear, the category of such authorities in Section 18 of the Local Government and Housing Act 1989 does not at present include fire authorities. Only by including fire authorities in this category would those authorities be able to pay allowances to their members that were pensionable.
  We are not convinced that a change is necessary or desirable at present. I can confirm that the Government will be reviewing members' allowances more generally later in the year and if, following that review, a change were considered appropriate, we would consider making the necessary legislative changes at that juncture. So it is not right simply to import a provision via this legislation. We need to look at the matter across the board and take all the issues into consideration. At that point we would make a judgment, one which no doubt would be actively informed by the LGA and the fire authorities by their representations.
  With those words, I hope that the noble Lord will feel able to withdraw his amendment.
  Baroness Hamwee: We have not been told why it is not appropriate to deal with this here. I accept that the Government may want more time, but that is a pity.

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  We have the perfect vehicle in this legislation. My noble friend and I very rarely suggest making regulations, but if the Government are not able to make up their mind now, would not the sensible course be to put an enabling power into this legislation so that when they do make up their mind, the provision is ready-to-use rather than waiting for another local government Bill? Although they do come along fairly frequently, we might find ourselves waiting for the bus, which can also happen sometimes.
  6 p.m.
  Lord Bassam of Brighton: The simple and short explanation is that there is the complex issue of double accounting. It is likely that if you are a fire authority you will be a member of a local authority. There is an inter-relationship and we need to address more thought towards this issue.
  Lord Hanningfield: I accept that there is an issue of double accounting. However, there is still a problem, particularly for our friends in Wales who raised the matter with me. The noble Baroness, Lady Hamwee, made a very valid point when she said that we could insert an enabling provision allowing it to be dealt with later. However, I understand the reasons behind the Minister's answer and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Schedule 1, as amended, agreed to.
  Clause 53 agreed to.
  Schedule 2 agreed to.
  Clause 54 [Pre-commencement consultation]:
  Lord Hanningfield Lord Hanningfield moved Amendment No. 136:
  Page 26, line 6, after "force" insert "but after this Act has received Royal Assent"
  The noble Lord said: Clause 54 legitimises the consultation that takes place before the relevant provisions of the Bill come into force. The purpose of Amendment No. 136 is clear: it seeks to prevent the situation whereby consultation and discussion that took place last year or the year before can be used in support of a claim that adequate consultation has taken place in respect of some matter dealt with by the Bill.
  We reluctantly concede the principle of pre-commencement consultation in the interests of speeding up matters, but it must take place after the Bill has received Royal Assent. The context in which it takes place will be relevant to the responses received and the consultees must be able to see that context. That means that the Act of Parliament must be completed even if the relevant sections have not commenced. I hope the Minister will confirm that no consultation prior to Royal Assent will be treated as pre-commencement consultation for the purposes of the clause. I beg to move.
  Lord Bassam of Brighton: The amendment would mean that the Bill would not recognise any consultation on the provisions in the Bill carried out
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  before Royal Assent. In our view, it is vital that consultation before Royal Assent on the provisions in the Bill in respect of matters such as charging, core duties under Clause 9 and the national framework is recognised. In effect, the amendment would mean that we would have to start all consultations on these important issues and provisions from scratch after the Bill receives Royal Assent. Depending on when that is, it could have significant negative effects on a fire and rescue authority's business and operational planning.
  In the case of charging, it could also mean that there would be quite a time lag between the 1947 Act being repealed and the enforcement of the new charging orders given effect to by the Bill. That would mean there would be a period of time when fire and rescue authorities could not charge for anything.
  I do not think the amendment is terribly helpful. It could have some unintended adverse effects on lire authorities. I hope that the noble Lord will feel able to withdraw the amendment.
  Lord Hanningfield: I think that such an amendment should be part of every piece of legislation. I view this issue very much from the local government side. Increasingly, the Government are working on the assumption that the powers they want in the legislation will be there right from the beginning, without going through the democratic processes of both Houses of Parliament. One saw it earlier with the planning Bill. The amendment seeks to ensure that a government— any government—do not assume that they will be able to pass legislation without going through the proper processes.
  Enactment of parts of the Bill could be delayed while the consultation takes place. I accept that consultation is going on in regard to charging and so on, but I think that that is a mistake. It would be right to carry out a proper consultation once the legislation is law. The Government would then be acting with the force of new legislative powers.
  I understand what is going on. This is an area that we need to explore further as time goes on, not only in regard to this Bill but also other Bills. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 54 agreed to.
  Clauses 55 to 57 agreed to.
  Clause 58 [Orders and regulations]:
  Baroness Hamwee Baroness Hamwee moved Amendment No. 137:
  Page 26, line 28, leave out "or regulations" and insert regulations or prescriptions"
  The noble Baroness said: I am sure that I should know the answer to this question. The subsection provides for references to subordinate legislation being,
  "to an order or regulations".
  In one or two places we are told that matters may be prescribed. Does that mean that they are by order and therefore within Clause 58(1)? "Prescriptions" was as good a noun as I could find. I beg to move.
  Lord Bassam of Brighton: The understanding that I have is that the term "prescribed" is used only in Clause 34, which deals with the provision of information in connection with pensions. Clause 34(6) defines "prescribed" as "prescribed by regulations". I hope that that helps the noble Baroness.
  Baroness Hamwee: I have not done a word check, but I take the Minister's word for it. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 58 agreed to.
  Clause 59 agreed to.
  Clause 60 [Wales]:
  Lord Hanningfield Lord Hanningfield moved Amendment No. 137A:
  Page 27, line 13, leave out paragraph (a) and insert—

  "(a) Parts 1 to 3;

  (aa) section 31 and 32;

  (ab) Parts 5 and 6;"

  The noble Lord said: The amendment would ensure that the Welsh Assembly did not have the powers in Part 4 of the Bill that relate to pensions. It is clear that, despite pensions being a reserved matter, the Bill does not in fact respect this boundary in giving the devolved government in Wales significant powers in this area.
  My honourable friend the Member for Runnymede and Weybridge raised this very same issue in another place. but did not receive a satisfactory reply. It is highly inappropriate that the Welsh Assembly should have the powers in respect of pensions in Clauses 33 to 35 when the Scottish Executive are not given such powers, even though the clauses extend to Scotland. The issue raises serious constitutional questions, and I would have hoped that the Government could have tabled their own amendment. I await the Minister's reply with some interest. I beg to move.
  Lord Evans of Temple Guiting: As the government spokesman for both Wales and Scotland in the House of Lords, it is a great pleasure to resist this amendment.
  The principal objective of the amendment is to reserve to Westminster an issue that we are seeking, in line with the recommendations of the Bain report and our commitment in the fire and rescue service White Paper, to devolve to Wales. As Members of the Committee will be aware, the fire service has long operated under separate Scottish arrangements. That separate approach has worked well, and we have every confidence that the more limited devolution to Wales provided by the Bill will work equally well.
  The approach that the Bill takes to pensions reflects the differences in the Scottish and Welsh devolution settlements. It extends pension provisions to Scotland because under the Scotland Act 1998 they are a reserved matter requiring a transfer of functions order. Devolution to Wales, by contrast, will be effected by the passage of this Bill itself. The routes are different, but the destination is the same. However, devolution is not independence. Pay, pensions and conditions of
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  service are currently dealt with on a UK-wide basis, and there is no reason to expect that that will change. The difference is that the common approach will in future be based on voluntary co-operation between the devolved administrations and the Westminster Parliament.
  The amendment would prevent that. It asserts that there are no circumstances in which different provisions for pensions could ever be made in Wales. The Government believe that if it were the wish of the elected Assembly to make its own separate arrangements, and if the Assembly were willing to meet any consequent funding requirements, that would be a decision for the Assembly. That, simply, is what devolution means. I hope that I have managed to allay the fears and concerns of the noble Lord, Lord Hanningfield.
  I was going to leave out the last paragraph of my brief, which points out that the Conservative Party opposed the decision to create a Scottish Parliament and a Welsh Assembly, and this amendment is consistent with that opposition. That is a bit below the belt, I think.
  Lord Hanningfield: We accept that the Scottish Parliament and the National Assembly for Wales have been created, so now we just want to make them work. One is not disputing that they are now there. We tabled this amendment because we wanted some clarity about the Welsh situation. We have already discussed some Welsh issues and some of the border issues about how the new legislation might work. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 60 [Wales]:
  On Question, Whether Clause 60 shall stand part of the Bill?
  Baroness Hamwee: I apologise for raising this matter at a late stage, or at any rate for not tabling an amendment. I was contacted—but too late to table an amendment for this stage—by the fire authority for north Wales, on behalf of itself and the two other fire authorities in Wales, which raised the issue of the appointment of members of combined fire authorities. Although it was too late to table an amendment, I thought that it might be worth airing the issue briefly at this stage.
  As drafted, the Bill would allow the National Assembly for Wales to appoint some members of combined fire authorities. I understand that the Welsh fire authorities believe that all members of fire and rescue authorities in Wales should continue to be appointed by county and county borough councils. They do not believe that the power for the Assembly to appoint fire authority members is consistent with its local government scheme under Section 113 of the Government of Wales Act.
  I am also informed that creating a new power of this nature would potentially diminish local government accountability and autonomy and would be in conflict with the Assembly's duty to have a scheme that sets out how it proposes in the exercise of its functions to sustain and promote local government in Wales. No

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  explicit reference to Wales was made in the White Paper, but in paragraph 4.18 there is a reference to allowing the Secretary of State to nominate some of the members. However, this was not understood to mean the Assembly in the case of Wales.
  I did not realise that we were going to have the benefit of the expertise of the noble Lord, Lord Evans, this afternoon. Is he aware of any representations having been made, either by fire authorities or by the Welsh Assembly, on whether the Government have addressed the issue of the powers of the Assembly? I apologise for raising the point without notice. At least it gives the Minister forewarning for next time, if it cannot be dealt with now.
  Lord Evans of Temple Guiting: The purpose of Clause 60 is to ensure that the powers exercisable by the Secretary of State in relation to English fire and rescue authorities are exercisable by the National Assembly for Wales in relation to their Welsh fire and rescue authorities. The fact that we are devolving the power does not necessarily mean that the Assembly will use it. If the Welsh identify the need, they can do the same, but it is up to them to take that course of action. I hope that that explanation will mean that we will not be returning to the matter on Report.
  Baroness Hamwee: I need to read back to Clause 3(3)(a), which relates to the scheme for combined fire and rescue authorities. It allows provision to be made for the appointment of members by the Secretary of State or by the National Assembly for Wales. I will talk to the fire authorities about this point. I am grateful to the Minister for his presence as well as his comments.
  Clause 60 agreed to.
  Clause 61 [Extent]:
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 138:
  Page 27, line 32, leave out from "to" to end of line 34 and insert—

  "(i) sections 46 and 61 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (c. 65),

  (ii) paragraph 8(b) of Schedule 4 to the Gaming Act 1968 (c. 65),

  (iii) Schedule 2 to the Pensions (Increase) Act 1971 (c. 56), and

  (iv) the Superannuation Act 1972 (c. 11 ). section 52(1) and Schedule 1:"

  The noble Lord said: Amendments Nos. 138 and 139 are government amendments. They would amend Clause 61 so that all the provisions in Schedules 1 and 2 that amend or repeal pension legislation extend to Scotland. Unfortunately, that was not picked up at an earlier stage of drafting. I apologise for that and beg to move.
  On Question, amendment agreed to.
  Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 139:
  Page 27. line 38, at end insert—
  "( )the Pensions (Increase) Act 1971,"
  On Question, amendment agreed to.
  Clause 61, as amended, agreed to.
  Clause 62 agreed to.
  Bill reported with amendments.
  Committee adjourned at sixteen minutes past six o'clock.