Baroness Smith of Basildon
Main Page: Baroness Smith of Basildon (Labour - Life peer)Localism Bill
Baroness Smith of Basildon Excerpts
Baroness Smith of Basildon
My Lords, I shall speak also to Amendments 30 and 31. I am seeking some clarity with the probing Amendments 29 and 30. The Bill extends the general powers of fire authorities. We discussed that at Second Reading and we understand the reasons why, but concerns about the power of the Secretary of State to then prevent fire and rescue authorities from using those powers or place conditions as the Secretary of State may dictate by an unamendable order have already been raised by both my noble friend Lord Beecham and the noble Lord, Lord Newton of Braintree. The issues around scrutiny have been well rehearsed and could apply equally to these clauses on the fire service.
I have a few other questions, and seek clarity from the Minister if she is able to assist me on this. In Clause 9, I seek to understand why new Section 5C makes changes to the Fire and Rescue Services Act 2004 and why new Section 5E contains the procedure for the Secretary of State’s orders for new Section 5C. New Section 5C(1) and (2), as the Minister said earlier, ensure that if there is a statutory provision that curtails the new rights and powers of a fire authority, or if something overlaps, they can be removed, and there are procedures for the orders there.
It would be helpful to have an explanation on this. When the Secretary of State is seeking to put forward orders under new Section 5C(1) and (2), he has to follow a procedure. He has to consult and he has to publish a draft of the order and an explanatory document outlining the proposals, giving reasons for the order and outlining any consultation that has been undertaken, any representations that have been made as a result of that consultation and any changes that have been made. However—this is what I fail to understand—that procedure does not apply under new Section 5C(3) and (4). There is no guidance and no provision for the Secretary of State to use those powers—other than to consult—for new subsections (3) and (4). There is no duty to publish the consultation or to give information on any changes that have been made.
New Section 5A, which will be inserted into the 2004 Act, gives new powers to allow the fire authority to do pretty much anything that it thinks is appropriate or incidental to its functions, but it is then constrained by the Secretary of State, who can in effect withdraw that right by order, as long as he consults. I find it difficult to understand why there is no guidance, no process and no criteria by which the Secretary of State’s actions can be judged to be reasonable or appropriate. That could make things extremely difficult for a fire and rescue authority. Having told the authority that there are virtually no boundaries, as long as what it does is appropriate to its functions, however incidental, the Bill then specifies boundaries but does not say what those boundaries are, other than that they can be changed by the whim of the Secretary of State as long as he consults. Issues of parliamentary scrutiny have already been raised, but there are wider implications relating to why the process that is outlined in new Section 5E, which is similar to the process for the new powers of competence given to local authorities, is not applied to new Section 5C(3) and (4).
Will the noble Baroness say what guidance will be published for the fire and rescue services, so that they know what the boundaries are? What criteria will the Secretary of State use? These two new subsections give the Secretary of State the power to prevent fire and rescue services from doing anything that they want to do or allow the Secretary of State to put conditions on that. Unless they and the Secretary of State know what the boundaries are, the Secretary of State seems to be able merely by order to prevent them from doing anything that they have chosen to do.
Will the criteria that are used, whatever they are—they are not in the legislation and I am not sure that they will be published at all—be the same for all fire and rescue authorities or will they be performance related in some way? It would be helpful to know why the procedures provided for the Secretary of State in new Section 5E apply to subsections (1) and (2) of new Section 5C but not to new subsections (3) and (4). I do not understand the logic of that. I understood the noble Baroness to say that the reason for the powers in new subsections (3) and (4) was to safeguard finances but that there were no plans to use them—these situations would be rare. However, I do not think that that is adequate when we are putting into legislation something that we feel we may not often use. I am sorry if the argument is rather complex, but I find it difficult to understand why no process is in place for orders relating to what are in effect more draconian parts of the legislation when there is a process for other parts.
Amendment 30 is a probing amendment to seek clarification on what can be charged for. As noble Lords will understand, since the Fire Services Act 1947, fire and rescue services have been allowed to charge for what are known as special services—those that are not their core services. The 2004 Act endorsed that. The Government then consulted on a specified list of 12 special services that could be charged for at local fire authorities’ discretion. To date, not all authorities have charged for all those services, although I note that, with the downward pressure on the fire and rescue service budget, a number of fire and rescue services are now looking to charge for more services and are putting proposals to the authorities. The current position is that the Secretary of State has to set out by order, following consultation, the services for which a fire and rescue service may charge and who it may charge. Those services which are charged for are quite clear and must be specified. The proposals in the Bill are completely the opposite. They basically say that the fire and rescue authority can charge for anything that is not in the list. It is a very limited list, and it is therefore likely to lead to more authorities charging for more services.
Baroness Hanham
My Lords, I do not think that I can reassure the noble Baroness about everything at this stage, as she asked a lot of detailed questions of which I had no notice. I will ensure that she receives a full reply to the many questions that she has raised. However, that does not mean that I am not going to answer the other points.
Amendment 29 aims to remove the similar provision in Clause 9; that is, in new Section 5A(1). The aim is to provide the appropriate national authority with powers to prevent stand-alone fire and rescue authorities from exercising the general power to do anything specified, or of a specified description or to set conditions around the use of the power. The noble Baroness referred to restrictions on innovative finance, which I mentioned earlier.
The argument for keeping the provision is also strong for fire and rescue authorities. For example, the power could be used to protect firefighter/public safety or the Exchequer from novel or risky financial transactions. This takes us back to the previous discussion on new Section 5A(1). We are most concerned about any financial arrangements or financial transactions which may or may not be justified and over which nobody has any control, although I admit that that is not covered in the Bill. These provisions provide a necessary safeguard, given the breadth of the new power, to ensure that risks are managed and can be managed.
For a new order made under new Sections 5C(3) and 5C(4), the appropriate national authority must consult and adopt the affirmative procedure. This should ensure that the order is subject to rigorous parliamentary scrutiny.
The effect of Amendment 30 would be to remove entirely the charging provisions set out in Clause 10 in new Sections 18A, 18B and 18C. That would mean that the fire and rescue service would not be able to charge for any functions under the Bill. Charging is optional—it is a “may” in the Bill—and subject to a local consultation. It is capped at up to full actual cost; that is, not for profit. This enables the fire and rescue service to cover its costs for providing services, but it particularly excludes individual and domestic premises.
Fire and rescue authorities are funded to maintain an efficient service. There is no explicit funding for ancillary activities that have increasingly fallen to brigades by default. The noble Baroness made some suggestions about cats up trees and cows in ditches. I have here the words “animal rescue”, which probably amounts to the same thing, and reference to the provision or removal of water in non-emergency situations. Flooding would therefore be covered. There would be other provisions along those lines. Indeed, there is increasing demand for the provision of such services, and that is why the existing charging provisions have been updated in the Bill and why the authorities may make charges.
The noble Baroness will know—she made this point—that charging for some functions has been possible since the Fire Services Act 1947. This power was replicated by Section19 of the Fire and Rescue Services Act 2004. Clause 10(3) of the Bill, which is not removed by this amendment, repeals the Section 19 charging powers in the 2004 Act. Removing the inserted provisions in Clause 10 while repealing Section 19 would mean that fire and rescue authorities would be unable to make any charge for these services.
The noble Baroness also inquired about whether any assessment of insurance had been made. Perhaps I may include an answer on that in my written reply, because of the detail involved.
I turn finally to Amendment 31 about education and reducing deaths. I immediately accept what the noble Baroness said about there having been a welcome reduction in death over the past few years. We believe that fire safety education is a cost-effective means of reducing fire deaths and injuries. Community safety campaigns such as Fire Kills have achieved significant success. Under Section 19 of the Fire and Rescue Services Act 2004, fire and rescue authorities can already charge for giving advice to persons in relation to premises where a trade, business or other undertaking is carried out.
However, it was never the Government’s intention to enable charging for community fire safety or prevention activities, and I will reflect on the best way to achieve our aim. However, I owe the noble Baroness an apology because in my recent letter I said that the Fire and Rescue Services Act 2004 covers the promotion of fire safety as a core function. However, the Bill does not repeal this function and, therefore, fire and rescue authorities will not be able to charge for this service. I apologise for the error in my letter. Our intention was that it should not be possible to charge for core functions such as community fire safety prevention. Perhaps I may make that absolutely clear. Fire fighting and emergency medical assistance are highlighted in Clause 10, proposed new Sections 18A and 18B. We have received advice that as community fire safety and prevention is not excluded from the general charging provision, charging is possible. We will seek further and urgent advice. We need to come back to this issue at Report. Given the advice we have received, particularly on this aspect of charging and cost-effective advice to persons and fire safety education, my complete understanding is that we do not want to charge for them, but in order to make that absolutely clear, we will come back to this issue. I hope that the noble Baroness will not press her amendments.
Baroness Smith of Basildon
I am grateful to the Minister for her thoughtful response, which is, I think, confirmation that core functions, as outlined in the 2004 Act, including community safety and fire prevention, would not be charged for. That is extremely helpful. My Amendment 30 was only a probing amendment. It sought clarification on the change from previous statements on what can and cannot be charged for under this legislation. I am grateful to the noble Baroness for her offer to come back and answer my questions in more detail.
What I am trying to get at in Amendment 29—a point she has partially answered, but not entirely—is why the procedures are different in proposed new Section 5C(1) and (2) from those in subsections (3) and (4), under which the Secretary of State can stop a fire and rescue authority doing something or can contain it. I do not understand why the process is different and applies only to fire services, not local authorities. If the noble Baroness can address that issue in her reply, it would be very helpful. I am grateful for the consideration that the noble Baroness has given to my concerns, and I beg leave to withdraw the amendment.