HL Deb 20 July 2004 vol 664 cc111-27

4.5 p.m.

Read a third time.

Clause 2 [Power to create combined fire and rescue authorities]:

Lord Rooker moved Amendment No. 1:

Page 2, line 27, after "question," insert— (aa) any local authority all or part of whose area forms part of the combined area,

The noble Lord said: My Lords, with this amendment I will speak also to government Amendments Nos. 2, 5 and 12. The amendments have been tabled in response to arguments put forward in both Houses of Parliament. There has been considerable debate about whether local authorities, as well as fire and rescue authorities themselves, should be included in the list of those to be consulted on the making, variation or revocation of combined schemes. To allay concerns expressed, we have stated our aim to allow for the widest possible involvement of all affected stakeholders, including local authorities.

We did not wish, however, to list in the legislation every category of organisation that should be consulted on a scheme on the basis that such a list could never be exhaustive. That said, we recognise that local authorities are in a unique position. That point was made from all sides of the House. We think that the Bill should reflect this. They are democratically elected bodies representing people of the areas involved in any proposed combination scheme, and they are also bodies from which the existing fire and rescue authorities are constituted. The amendments therefore add an explicit requirement for the Secretary of State to consult local authorities on the making, variation or revocation of combination schemes where all or part of an area forms part of the area which would be or is covered by the scheme. I hope that that demonstrates our commitment to an inclusive approach.

Amendment No. 12 adds a new clause in order to define "local authority" for the purposes of the Bill. I therefore respectfully request noble Lords to accept the amendments in the spirit in which they are moved. They are born out of experience in this House and in the other place. I beg to move.

Baroness Hanham

My Lords, I welcome the amendments. As the Minister said, they are the result of considerable debate and it seems to us that they are wholly sensible and much more inclusive than the previous structure of the Bill. I thank the Minister for listening on these aspects and I welcome their inclusion.

Baroness Hamwee

My Lords, I, too, thank the Minister. He always knows how to take the Opposition by surprise, and he did so last time when he grinned at me and said that he would have some good news next time for the noble Baroness. The drafting is so much better than mine and I am happy to welcome the amendments.

On Question, amendment agreed to.

Lord Rooker moved Amendment No. 2:

Page 2, line 34, after "affected," insert— (ba) any local authority all or part of whose area forms part of the combined area or would, under the scheme as varied, form part of the combined area,

On Question, amendment agreed to.

Baroness Hanham moved Amendment No. 3:

After Clause 2, insert the following new clause—

"COMPOSITION OF COMBINED FIRE AND RESCUE AUTHORITIES

(1) Membership of a combined authority, made under section 2, will be made up of elected members from those authorities that constitute the combined fire and rescue authority.

(2) In Wales, a scheme under section 2 may not make provision for the appointment of members by the National Assembly for Wales unless the Assembly has consulted the Partnership Council for Wales established under section 113(2) of the Government of Wales Act 1998 (c. 38) (relations with local government )."

The noble Baroness said: My Lords, this amendment returns to the matter that we discussed last time. It is now a new clause on the composition of a combined fire authority. I will also speak to the amendment dealing with changes to Clause 3, which is consequential to the new clause.

Hand in hand with regionalisation, the Bill gives almost unprecedented powers to the Secretary of State, as we have discussed over and over again. Indeed, the two themes of regionalisation and centralisation run throughout the Bill. Coming from the Government, who have little opportunity to proclaim their belief in localism, I still find this slightly puzzling. We see that manifestation again here in black and white, with the power of the Secretary of State to appoint up to 49 per cent of members to a combined fire and rescue authority.

We have rehearsed the arguments in some detail at each stage of the Bill. Suffice it to say that our minds have not changed. We do not believe that, for a local service, the provision is democratically acceptable. It will do nothing to improve local accountability. Throughout the passage of the Bill, the Minister has claimed that the power is there as a last resort and would be used in the instance of a failing authority. I have the highest regard for the noble Lord in person, but my experience of watching the Government in operation tends to allow me to take a slightly sceptical view, when I see something like that in a Bill.

The arguments are well known, and I will not detain the House with detail that has already been aired. I suspect that, on this point, we will have to disagree. I will, however, touch quickly on two distinct aspects of the new clause. The first is that it would ensure that each combined fire authority was made up of elected members from the constituent authorities. That seems a sensible way forward that would guarantee accountability and representation at local level.

The second part of the new clause deals with the issue that we touched on last week, with regard to the power of the Welsh Assembly to appoint members to Welsh fire authorities. It seems to us that the provisions of Section 113 of the Government of Wales Act 1998 will be meaningless if the Government continue to legislate in new ways for the Assembly to reduce the power, autonomy and accountability of local government in Wales. Subsection (2) of the new clause, therefore, would insert a requirement for the Assembly to consult the Partnership Council for Wales, before making any provision for the Assembly to appoint members of a fire authority. That will ensure that the Assembly's proposals are discussed with senior representatives of local government in a public forum. It may not guarantee that the Assembly will listen, but it would be an appropriate safeguard to ensure that the Assembly's scheme to sustain and promote local government is respected.

As I mentioned, the amendment to Clause 3 is consequential and would remove reference to the involvement of the Secretary of State in the appointment of members of the authority and the reference to different voting rights for different categories of member. That would not exist under our new clause. I beg to move.

Lord Roberts of Conwy

My Lords, I support my noble friend on the Front Bench, as I did on Report, with particular regard to the new clause. I am particularly concerned about the situation in Wales and would insist that the Assembly should be under an obligation to consult local authorities.

There is a tendency in the legislation coming from the National Assembly Government to ride roughshod over local authorities. This is not the only Bill in which that tendency is detectable. It is patent in the draft Bill relating to transport in Wales that was recently considered by the Select Committee on Welsh Affairs in the other place. Suffice it to say that the Select Committee's report states: the draft Bill does give the appearance, if not the intention, of an overbearing National Assembly influence over Local Transport Plans". I have made my point: there is such a tendency. I hope that the Government will accept my noble friend's reasonable and moderate amendment, in the interests of good relations and harmony between Welsh local authorities and the National Assembly. I hope that the Government will see their way clear to showing their respect for the spirit behind the Government of Wales Act 1998—Section 113 in particular.

4.15 p.m.

Baroness Hamwee

My Lords, we have stood together with the noble Baroness, Lady Hanham, throughout on these issues. I congratulate her on finding a way of bringing the amendment back. We did not get quite enough people through the Division Lobby on the previous occasion. I say, "Well done", and I must remember to have Wales as a back-up, when I want to divide the House again or, at any rate, bring some matter before it again. That makes my position on Amendment No. 3 clear enough.

Amendment No. 4 would alter the detail of a scheme made under Clause 2, as set out in Clause 3. I had a look back to see what the Government had to say about differential voting—if I can put it that way—at previous stages. We tabled an amendment that would have taken that bit out, and it did not seem to me that it was spoken to. I see no justification for giving different weight to the votes of members of pretty much any sort of authority. It leads to trouble, and it will not enable the members of an authority to work together easily and productively.

I did not read through Hansard for the Commons, but there seemed to be no justification for the move in Hansard for this House. I am grateful to the noble Baroness for giving the Minister an opportunity to justify it to those of us who are hanging on his words.

Lord Rooker

My Lords, I too am grateful to the noble Baroness for bringing the matter back, for reasons that I will explain in a while. I note what the noble Lord, Lord Roberts of Conwy, said. I know nothing about the Assembly riding roughshod—his words, not mine—over local government, but local government always claims that somebody is riding roughshod over it, when it cannot get its own way. For centuries, the call has been, "It's the Westminster Parliament riding roughshod over us"—not any more. That central change has taken place.

Amendments Nos. 3 and 4 would challenge the power in the Bill for the Secretary to State to combine authorities. I realise that that has been a sore throughout; I fully accept that. The amendments would remove the provision about how members are chosen, while restricting membership of combined authorities to elected members of constituent authorities. The amendments would leave us in an untenable position.

Amendment No. 4 would remove powers for a combination scheme to provide for the composition of the combined authority and for how the members are chosen. The Secretary of State would not be able to specify the maximum number of members who should sit on an authority, a power that he rightly has at present for combination schemes under the 1947 Act. Reading the amendment alongside Amendment No. 3, we assume that the intention is that existing authorities will retain the power that they now have to appoint members. The basis on which those appointments would be made is not at all clear from the new clause. For example, how will the balance of membership be determined? Will authorities be represented equally or in proportion to their size? The new clause is silent on such important matters.

As we have argued, we believe that the Secretary of State must have the power to make appointments to fire and rescue authorities. The Government's motivation in seeking the power to appoint is not to enhance central control but to improve the delivery of a public service. It is essential that fire and rescue authorities collaborate effectively with each other in order to deliver the modernised, efficient and effective service that we need. This Bill and the national framework give authorities ample scope to collaborate voluntarily to deliver what is required. That is the point: it is in their gift to get it right and do it themselves, without any involvement of the Secretary of State. We are not seeking to get involved. Combination would therefore be a last resort, in the event that authorities failed to collaborate effectively. In other words, if they fail to do the job, we are responsible for making sure that the job is done.

Authorities might fail to collaborate effectively because of lack of capacity, lack of will or lack of leadership. Given the new statutory framework, organisational obstacles are unlikely to be the sole cause of failure, so combining them, without more, would not necessarily resolve the problem. That is why we are insisting that it is essential for the Secretary of State to be able to appoint a minority of members should it be necessary to do so to overcome the previous problems. In such circumstances, the Secretary of State in making the combination scheme would make provision for the appointment of a number—less than half—of the members, who would be statutory officers under the Crown. The scheme would provide for the appointment of the remaining members by the constituent authorities of the new combined fire authority.

Should such appointments have to be made there are none the less considerable safeguards for local democracy built into the clause, including appointees being in a minority and their being excluded from votes on precepting. That would be left to those democratically elected. We have given assurances to both Houses that appointments would be publicly advertised under the Nolan principles. So in the event of the power being invoked it would be used in a transparent and proportionate manner.

Amendment No. 3 would limit membership of a combined authority to elected members of the constituent authorities only. As we have argued, the Secretary of State must have the flexibility to address a failure to collaborate by fire and rescue authorities by having the power to appoint. It is vital that the power is not restricted to appointing the elected members of the failing authorities. That would be barmy. It would be absurd to leave it to the fire and rescue members who had proved lacking in will, capacity or leadership to provide the new combined authority with the will, capacity or leadership needed to turn the situation around. Those people will have failed and have been given every chance. It is a last resort, not a first resort.

Indeed, we do not want to see any restriction placed on the type of person who might need to be appointed to a new combined authority. The Secretary of State needs flexibility to make a judgment based on the reasons for the combination. He needs to be able to appoint people chosen for their ability. I assured noble Lords on Report that we had no plans to appoint lire and rescue authority employees to a combined fire authority.

I can, however, now go further—which is why I am glad the debate is taking place—and assure noble Lords, in the light of detailed legal advice, that the Bill does not give the Secretary of State the power to override the absolute restriction on an employee of a fire and rescue authority being a member of that fire and rescue authority, under Sections 79 to 81 of the Local Government Act 1972. Nor does the Bill override the provisions of Section 1 of the Local Government Act 1989, which prevents anyone who holds a politically restricted post from becoming a member of any fire and rescue authority. The latter provision would prevent all but very junior employees of a fire and rescue authority from being members of any fire and rescue authority. So there would, after all, be no question of appointing a chief fire officer.

Amendment No. 3 also requires the National Assembly for Wales to consult the Partnership Council for Wales on the appointment of members. The Government have already conceded that local authorities should be explicitly listed as consultees on the making, variation or revocation of combination schemes—that was our first debate a few minutes ago. Our fears were that the list of potential consultees to those schemes could go on and on, and so it proves. The Government have already stated their position, which is that we are committed to the widest possible consultation on the matter. We cannot keep adding bodies to be consulted to the Bill, but I assure the House that our intention remains to consult as widely as possible.

Furthermore, it is our intention that the Bill should apply to Wales in exactly the same way as it does to England. The amendment would impose a further duty that would apply to Wales alone, a situation that we have carefully avoided. It is for the National Assembly for Wales to determine which bodies it should consult, in the same way that that responsibility falls to the Secretary of State in England. The principle of consulting as widely as possible remains, however, and I hope that Members of the Committee accept this assurance.

I used a phrase earlier when I was talking about the people who would be appointed as statutory officers under the Crown. I previously said that, we are insisting that it is essential for the Secretary of State to be able to appoint a minority of members should it be necessary to do so to overcome the previous problems. In such circumstances, the Secretary of State in making the combination scheme would make provision for the appointment of a number—less than half—of the members, who would be statutory officers under the Crown. The scheme would provide for the appointment or the remaining members by the constituent authorities of the new combined fire authority". I am reliably informed that "statutory officers under the Crown" is not correct, so I am not sure what status they would have. However, as I put it on the record and I am now told that it is incorrect, I am removing it. In due course I shall no doubt receive a further clarification. This issue has now been raised at every stage and I fully understand why. The Government have moved on the issue, but I repeat that it is a last resort; the Secretary of State will use those powers only if people fail to organise themselves properly and efficiently. Central Government are not coming in and reorganising and combining fire authorities. It is a power of last resort.

If it were a power used when there had been a failure it would not make sense to allow the same groups of people who failed previously to sort it out in the future, because they would have had more than adequate opportunity.

Baroness Hanham

My Lords, before the Minister sits down, will he answer a question that we raised at another stage? I am not sure what the answer was. How will the local authority members who are to be appointed be confined to elected members? As the Bill stands it says that local authorities can appoint, but are they going to appoint anyone outside or is the intention, which we have been trying to get specifically in the Bill—it would be enormously helpful if the Minister could place it on the record—that those members would be local authority elected members; that is, the 51 per cent?

Lord Rooker

My Lords, the final sentence of the paragraph I just repeated was, The scheme would provide for the appointment of the remaining members"— that is, the 51 per cent— by constituent authorities"— that is, the local authorities— of the new combined fire authority". I cannot see the local councils appointing anyone other than their elected members. The intention under the scheme in Clause 2 is that they would be members; that is, elected councillors.

There would be no justification for non-elected councillors being appointed, bearing in mind that the extra influx from the Secretary of State could make up for that and it is right that they are the constituent authorities. It is true we are saying that they have failed, but nevertheless they would have the right to appoint and they would appoint councillors—people elected from those constituent authorities. That is our intention.

Baroness Hanham

My Lords, I am glad to have the Minister's confirmation on the record. As we have discussed in the past, there are many occasions where local authorities make appointments and those appointees do not have to be elected members. If the Minister has now placed on the record that those members appointed to the fire authority will be from the council and will be councillors, that is enormously helpful. It does not totally respond to the amendment that I tabled, but it takes us forward.

We have discussed the composition of the fire and rescue authorities at length in the past. I have returned to the matter to try to ensure that the question of elected members is placed on the record. I am still not happy about the appointment of 49 per cent by the Secretary of State. I expect and hope that that would happen only in a moribund and difficult situation where fire authorities were being brought together in order to resolve a particular problem.

We have rehearsed again the question of Wales because it is important in matters relating to the Assembly that there is a clear understanding of the position of the people who will be on that fire authority. We have now more or less reached the position that I wanted. The 49 per cent will have to stand. I have taken the matter as far as I can and therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Clause 3 [Creation of combined fire and rescue authorities: supplementary]:

[Amendment No. 4 not moved.]

Clause 4 [Combined authorities under the Fire Services Act 1947]:

Lord Rooker moved Amendment No. 5:

Page 4, line 36, after "affected," insert— (ba) any local authority all or part of whose area forms part of the combined area or would, under the scheme as varied, form part of the combined area,

On Question, amendment agreed to.

Clause 19 [Charging]:

Baroness Hanham moved Amendment No. 6:

Page 10, line 10, leave out subsection (6).

The noble Baroness said: My Lords, the amendment would remove from the Bill the requirement that the charges set by an authority do no more than recover the full annual cost of providing the service in question.

On Report the Minister went over the ground that he covered in his letter dated 14 June. That dealt with the Government's concession in Committee which allowed for an authority to continue recovering an element of profit on a given service if it had been doing so on or before 1 April this year for up to two years after the introduction of a freedoms and flexibilities package under the fire CPA. Although we were pleased with that concession we feel that the Government have not made the case for restricting fire authorities in the manner proposed by Clause 19(6).

The Government's decision to restrict charging for services, even taking into account the concession, is bad for innovation in local government—my noble friend Lord Hanningfield, who is unable to be here this afternoon, waxed lyrical about Essex's innovative powers—and will unfairly close down possible sources of income. This loss of income will have to be paid for by the council tax payer. The Government's plans introduce a serious opportunity cost to the taxpayer, and will get worse over time. We do not agree with the Government's intentions and their interference with fire authorities' charging regimes. The Government have failed to articulate why it is so important that the present system should change. The capacity to charge more than the cost of a service is important in terms of future innovation and motive. I beg to move.

Baroness Hamwee

My Lords, we take a similar view, although the noble Lord, Lord Hanningfield, always waxes lyrical when he talks about Essex. On the last occasion that this issue was debated in Grand Committee the Minister referred us to an order to be made under the Local Government Act 2003 and we have recently seen the first wave of such orders. We on these Benches very much dislike the CPA procedures and allowing freedoms and flexibilities for certain authorities only. But much as I would like to see all fire and rescue services able to charge at their discretion, I understand the Government's logic in treating them like other local authorities for this purpose. I hope that I have correctly understood the Government's position, although I may be corrected in a moment. It is a pity that they are doing that for any local authorities at all.

Lord Rooker

My Lords, for the final time we have come to what I shall call the "Essex amendment". I do not wish to interfere in Essex. It is a well run authority with an excellent leader.

Baroness Hanham

My Lords, from our party.

Lord Rooker

My Lords, thanks very much. I often wonder if those people who pay the charges to the Essex fire brigade realise that they are not paying a charge, but a tax, because it is obviously used as a revenue raiser. I do not know what is on the invoices or the bills or how that fact is advertised—"We have this extra way of raising funds and keeping the council tax down. We are ripping off people"—some people might say, although others, not I, would use that term—"We are not paying for the cost of this charge, we are putting something on top of it because we need more revenue". I do not know how open and transparent that is, but one thing is certain—it is trading that is not carried out via a company. By and large when local government trades it has to set up a company properly, with accounts, because trading without a company structure is anti-competitive, I am told.

However, I do not wish to discuss again the issue of different fire brigades fighting fires in each others' areas. I shall not even suggest that that might be looked at in the Lyons review because this relates to fire service, not local government, funding—although in this case it is used as a means of local government funding and, regarding the question that the noble Lord, Lord Biffen, asked me earlier, it may be a source of revenue. I do not know.

The amendment is identical to earlier amendments and my argument is exactly the same. We have made a concession openly and in good spirit. It is true that the wording of Section 3 of the 1947 Act has caused confusion among authorities about the extent of their powers to recover more than the cost of providing a service. That is certainly the picture to emerge from fire and rescue authorities during the recent consultation exercise on charging. We want greater clarity on the issue and that is precisely what the clause as drafted achieves. But I and my ministerial colleagues in the other place have repeatedly made clear that we have no wish to create financial difficulties for authorities such as Essex that have become accustomed, in good faith, to recovering a profit component on some of their activities.

That is precisely why we announced a concession in Grand Committee when considering the then Amendment No. 65. I shall put on record again that as a result, where an authority was recovering an element of profit on a given service on or before 1 April this year, the concession will enable it to continue doing so for up to two years after the introduction of a freedoms and flexibilities package under fire comprehensive performance assessment (CPA). That will be achieved by means of an order under Section 95 of the Local Government Act 2003 and will require authorities to conduct their trading activities through a company. Authorities will not be allowed to expand into new areas of trading under the concession but may be allowed to do so if they achieve a favourable CPA. Where an authority fails to achieve a favourable assessment within two years any trading order under this concession will be withdrawn.

Our objective throughout has been to draw a line under the previous uncertainty. It is obviously a certainty in Essex and there might be other areas where that is the case, although none have come to my attention. But we wish to remain sensitive to authorities such as Essex that currently recover a profit element. We do not wish to damage them in any way. Our approach provides clarity about the way forward. With those assurances, I hope that the amendment will be withdrawn for the final time.

Baroness Hanham

My Lords, I thank the Minister for that reply. I shall certainly pass the Minister's comments on to my noble friend Lord Hanningfield regarding his abilities, with which I agree. Perhaps this time he may not have totally convinced the Minister about this matter but the commitment given in Grand Committee took us some of the way. I do not think that we will go the rest of the way today; therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rooker moved Amendment No. 7:

After Clause 22, insert the following new clause—

"INTERVENTION PROTOCOL

(1) The Secretary of State must prepare, and may revise, a protocol about the exercise of his power to make an order under section 22(2).

(2) The protocol must in particular make provision about persons or descriptions of persons that the Secretary of State will consult before exercising that power.

(3) The Secretary of State must have regard to the protocol in exercising that power.

(4) In preparing the protocol, or any revisions to it which appear to him to be significant, the Secretary of State—

  1. (a) must consult fire and rescue authorities or persons considered by him to represent them;
  2. (b) must consult persons considered by him to represent employees of fire and rescue authorities;
  3. (c) may consult any other persons he considers appropriate.

(5) The Secretary of State must publish the protocol for the time being in force in the manner he considers appropriate."

The noble Lord said: My Lords, the amendment places on the face of the Bill a requirement for the Secretary of State to consult on and publish an intervention protocol under which the powers to intervene under Clause 22 will be exercised. We have always said that we would be more than happy to follow the provisions of the local government intervention protocol in exercising those powers.

We therefore propose to consult fire and rescue service stakeholders on the application of the local government intervention protocol to the powers contained in Clause 22. This will give the fire and rescue authorities and other stakeholders the opportunity to comment on the procedures that we will follow should intervention under Clause 22 prove necessary.

Since the local government intervention protocol is specifically designed to address the needs of poorly performing authorities, we believe that it is appropriate to apply it to the powers contained in Clause 22. However, the amendment gives us the opportunity to review the protocol if, following consultation, it becomes clear that there are additional factors that need to be taken into account. Following all necessary consultation, we will publish the protocol that has been agreed.

Coupled with this amendment is Amendment No. 8, tabled by the noble Lord, Lord Hanningfield, and the noble Baroness, Lady Hanham. This is an opposition amendment that goes further than the government amendment. It requires that an intervention code be published that will apply to all direction-making powers in the Bill and not just those in Clause 22. We do not think that that is necessary or desirable. The powers in Clause 22 are different from other "intervention powers" elsewhere in the Bill. They are specifically designed to deal with poor performance, so we need a protocol which reflects that, as the existing protocol, developed for the use of best value intervention powers, does.

Other intervention powers in the Bill will, for the most part, be used to deal with specific circumstances rather than poor performance. For example, the power under Clause 29 will allow us to access equipment to ensure public safety in the event of industrial action. There are other issues, so a "one-size-fits-all" protocol would not work.

I have more material, but I hope that I have made the point that our amendment relates the protocol to the issues specific to Clause 22. The opposition amendment goes widely across the Bill, dealing with other matters, which is not desirable. I beg to move.

Baroness Hanham

My Lords, I never lose an opportunity to try to be all-encompassing. However, I recall the Minister saying in Committee that he would consider the matter, and my amendment was tabled in case he forgot to do that or forgot that he was being careful and helpful. Clearly, that is not the case.

The intervention code under the Minister's amendment does not go so far as ours, but it sets the parameters that we wanted to see. We wanted to ensure that there was a protocol on the intervention procedures that people understood—what should be involved and who should be consulted. I am happy to rest on that and to withdraw my amendment. I thank the Minister for having considered our original approach and for having brought forward that satisfactory amendment.

Baroness Hamwee

My Lords, I am grateful to the Minister for explaining the matter. He confirmed that the protocol referred to in his amendment will be the same protocol that operates now in equivalent areas.

I understand that a report to be published in the autumn by Inlogov on the engagement process is taking place with the application of the current protocol. It is obviously important to consider what lessons have been learnt since it was set up. The amendment provides, rightly, for consultation with a number of organisations and people. I am sorry to bowl this one unexpectedly at the Minister, but it would be interesting if he could explain how the work that is going on separately will interlock with the consultation provided by the amendment.

Lord Rooker

My Lords, it would be interesting if I could, but I cannot. However, I am certain that one will dovetail the other and not contradict it.

On Question, amendment agreed to.

[Amendment No. 8 not moved.]

4.45 p.m.

Clause 36 [Prohibition on employment of police]:

Baroness Hanham moved Amendment No. 9:

Page 18, line 42, at end insert "except in such cases as may be specified by the Secretary of State in regulations"

The noble Baroness said: My Lords, the amendment has been brought back today because we were unable to pursue it on Report owing to a line error. The Minister had the wrong dates and we had the wrong indications of what we were talking about.

The amendment concerns whether Clause 36 unduly restricts the employment of police officers as retained firefighters. The clause penalises the retained part of the fire service in a way that is inconsistent with the stated aims of the Bill to make the fire and rescue services flexible, effective and diverse.

In Committee, the Minister said that there would always be a possibility of conflict between the duties of a police officer and his or her duties as a firefighter. I do not believe that there have been any examples of a conflict of interest caused by this professional relationship but I am happy to stand corrected on that point if it helps me to understand the Government's position. More importantly, I do not understand why there cannot be a reasoned and rigorous process put in place that could effectively prioritise between potentially conflicting roles.

Surely, that would not be difficult to implement. There are many examples in public life where fulfilling the duty of one role ultimately gives way to another. I have no doubt that that choice would have to be made at difficult junctures, such as in emergencies, but that is why a process could be in place so that the police officer and his employers would know exactly where they stand in advance of such a situation arising.

I am also concerned that Clause 36 seems to restrict all employment with a fire and rescue service whereas the 1947 Act dealt only with employment with a fire brigade. For example, under Clause 36, a part-time police constable could not be employed as a part-time fire control room operator or in a part-time administrative role. That suggests that the clause is not only an unnecessarily wide prohibition on a police officer's right to secondary employment, but also that there may be circumstances which need not result in what the Government would presumably class as an unacceptable conflict of responsibilities.

The amendment would allow the Government an opportunity to specify in regulations the circumstances in which it will be possible to be both a police officer and fire and rescue services employee while not compromising the main intention of Clause 36. We feel that that would be a much fairer and more effective way forward for both individual employees and the retained part of the fire service, as well as reflecting the fact that many of us are able to navigate potential conflicts of interest in many walks of life without undue restriction. I understand that many people are already in that position and would be jeopardised by the clause. I beg to move.

Baroness Hamwee

My Lords, we support the amendment. It seems to be reasonable as it would not remove the restriction altogether, but allows for sensible, practical arrangements to be put in place. I have been unable throughout to understand the complete restriction, given what we have heard about recruitment difficulties in some areas, and those who undertake a civilian role in the police, or those who are not on shift duty for the police service providing support for the fire service. I hope that the Minister can accept the amendment. The noble Baroness is not asking him to put detail into the Bill. The amendment would allow for reflection and detailed consultation with the two services, which is important. I am sure that the police have something to say. I am aware that we have been hearing from the fire service, not from the police on the issue. The opportunity is there for the Government and I hope that they will take it.

Lord Rooker

My Lords, I hope that I can give further clarification. The noble Baroness, Lady Hamwee, said that we have not heard from the police, but we shall hear from the police and the Home Office now.

The noble Baroness, Lady Hanham, said that the clause was too restrictive and would prevent a person who is also a police officer being employed for any purposes, and not just firefighting. She gave examples of part-time working in a fire control room or in an administrative role. It was also suggested that a process could be in place so that a police officer and his employer would know in advance what his position would be at an emergency incident.

We are very concerned here with the duties that a person holding the office of constable might be required to perform if employed by a fire and rescue authority. I want to make it absolutely clear that the prohibition would not affect special constables or community support officers, who, of course, are employed by police authorities, or the civilian administrative staff of police authorities. We are talking about police constables.

We remain satisfied that there could be a conflict of roles at an incident if an off-duty police constable were employed as a retained part-time firefighter and confusion over which employer had the primary claim on the officer's services. I do not think that it would be practical to agree responsibilities in advance because by its very nature an emergency is unpredictable and police officers and firefighters have to make decisions in difficult and dangerous situations. It is better, therefore, to make a clear distinction.

Furthermore, the Association of Chief Police Officers has made it clear that it would wish the present prohibition, which has been in place since 1947, to remain, not only because of its concerns about confusion at times of emergency over primacy of role, but also because retained firefighters can be called out at no notice, which could impact upon police constables' ability to perform their next tour of police duty, with consequences for the efficiency of the police service.

We have reflected on the possibility of accepting the amendment. There have been internal discussions in government and we have had discussions with our colleagues in the Home Office. However, we have taken the view that it would be wrong to introduce the power to make a change by regulation when we have no intention of exercising that power.

As I said, the prohibition impacts only on persons who hold the office of constable. I have not seen any examples of where such a situation would occur, but this is not a change that we are prepared to make. The Association of Chief Police Officers is against it and I believe that we should take account of that advice.

Baroness Hanham

My Lords, we have been around this circuit a few times. I do not understand the logic put forward by the Minister. If a police officer acts as a retained firefighter, he acts as a retained firefighter and not as a police constable. I am certain that he would understand that he wore that hat. The possibility that I believe is being suggested by the Minister that a police constable who acts as a retained fire fighter would suddenly decide that he was a police officer, and leap into the breach when he was fighting a fire, or acting under command, seems to me to be absolutely ludicrous. I am certain that this happens at the moment, that police officers supplement retained firefighters in one way or another, even if they are not in the front line of fighting fires. I believe that it is a great pity that the Government are taking their present line.

Lord Rooker

My Lords, the noble Baroness has not addressed the issue of a police constable being a retained firefighter. One does not know how long it will take to fight a fire and what brigades will turn up to it. Such a constable may not be able to turn up for his next shift as a police officer. We have to consider that because of the nature of the areas concerned.

We are talking about police officers, who are not on duty, undertaking this job. However, police officers are never off duty. Whatever they do, they are always police officers. They may do something in their spare time—when they are not clocked on—but the noble Baroness has not addressed the issue of police officers who are not fit, or who are too tired or not available to turn up for their shifts as police officers the next morning or later the same day or for the night shift, undertaking such jobs. This is not an unimportant point and it is not one that we should ignore.

Baroness Hamwee

My Lords, before the noble Baroness replies and with the leave of the House, perhaps I can ask whether this is a matter for the forces involved rather than Parliament trying to dictate how the matter would work. Any employee in any situation will look at how it will work in practice. I feel very uneasy, sitting in London SW1, suggesting the detail of the matter. That is why I support the amendment.

Baroness Hanham

My Lords, I did not address the point, but retained firefighters are made up of all kinds of people who have all kinds of responsibilities within the community. The only reason we are addressing police officers is that they are the only people mentioned. The Government may just as well restrict nurses, doctors or anyone in the community who has a specific role to play and a specific responsibility. Presumably everyone else is entitled and can make that decision and the employers can make the decision.

It seems to me very strange indeed that police officers will be excluded in such a way by definition specifically because, as I understand it, the Government are afraid that such people may forget which hat they are wearing and suddenly become police officers. That is what the Minister says. I do not intend to test the opinion of the House but I remain unhappy about the Minister's response.

Amendment, by leave, withdrawn.

Clause 43 [Powers of fire-fighters etc in an emergency etc]:

Lord Rooker moved Amendment No. 10:

Page 21, line 12, after "out" insert "or to be about to break out"

The noble Lord said: My Lords, in moving Amendment No. 10, I shall speak also to government Amendment No. 11. These amendments have been prepared in response to the concerns expressed by the noble Baroness, Lady Hanham, on Report, and which had been raised at earlier stages of the passage of the Bill in both Houses: that Clause 43 as drafted would not allow a firefighter to make an appropriate response to situations in which, while there was as yet no evidence of fire, there was clear evidence that the ingredients for a fire were present.

In consideration in Committee in the other place, the Minister for Local Government and the Regions challenged those who considered that the scope of the clause was too limited, to provide better examples of the type of incident which could cause such problems. As I made clear on Report, all the examples received both in this House and the other place are, in our view, satisfactorily covered by the powers already provided in the clause and no extension of the powers seem to be necessary.

While the House accepted that point in relation to the specific examples given, a concern remained that an opportunity to plug a potentially serious gap was being missed. My ministerial colleagues and I have reflected further on the point alongside our objective of ensuring firefighters are equipped with adequate powers to deal with the often life-threatening incidents that they face.

While the likelihood of such an event occurring remains in our view small, we believe that it would be prudent to take the opportunity offered by the Bill to give firefighters this modest but potentially important extension of powers. The power could be exercised only where the firefighter had a reasonable belief that a fire is about to break out and, without it, there might be occasions on which a police officer had to be called before action could be taken, unnecessarily distracting the officer from other duties and perhaps increasing the risk of a more serious emergency developing because of the delay in taking action.

We have listened to what was said on the previous occasion and we believe that it is right to make these very modest changes. It is an opportunity that it would be silly to miss. The clause already gives a firefighter power to do anything necessary when a fire has broken out and this amendment will allow intervention if he reasonably believes that a fire is about to break out. Any action that he takes will have to be justified by the circumstances of the case. I beg to move.

Baroness Hanham

My Lords, I am delighted that my powers of persuasion or my wearing down has finally brought us to this extremely sensible outcome. Once again, I am grateful to the Minister for being so responsive in this matter. While I appreciate that he has not been totally responsive on all matters, I am glad to have a victory on one or two points. This is an important amendment and an important concession. I am grateful to the Minister.

On Question, amendment agreed to.

5 p.m.

Lord Rooker moved Amendment No. 11:

Page 21, line 13, after "extinguishing" insert "or preventing"

On Question, amendment agreed to.

Lord Rooker moved Amendment No. 12:

After Clause 55, insert the following new clause—

"MEANING OF "LOCAL AUTHORITY"

In this Act "local authority" means any of these—

  1. (a) a district council;
  2. (b) a county council;
  3. (c) a county borough council;
  4. (d) a London borough council;
  5. (e) the Greater London Authority;
  6. (f) the Common Council of the City of London;
  7. (g) the Council of the Isles of Scilly."

On Question, amendment agreed to.

Schedule 1 [Minor and consequential amendments]:

Lord Rooker moved Amendment No. 13:

Page 41, line 17, at end insert— 60A In paragraph 5(a) of Schedule 11 (police and fire services: derelict petroleum tanks), for "fire authority" substitute "fire and rescue authority".

The noble Lord said: My Lords, this is a consequential amendment to the Local Government Act 1985, which, I am afraid, was not picked up at an earlier stage. It simply changes a reference to "fire authority" in the Act to "fire and rescue authority". I therefore respectfully request noble Lords to accept the amendment. I beg to move.

On Question, amendment agreed to.

Lord Rooker

My Lords, I beg to move that this Bill do now pass.

Moved, that the Bill do now pass.—(Lord Rooker.)

On Question, Bill passed, and returned to the Commons with amendments.