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"(e) a person who is of a description specified by the Secretary of State in regulations under subsection (1)"
The noble Baroness said: My Lords, the amendment would enable the Secretary of State to add to the definition of lack of independence. It goes against the grain for me to propose an amendment to allow the Secretary of State to make further regulations, but there we are. If it will meet the point, then I will do so. I beg to move.
Lord Rooker: My Lords, I hope that I will not be accused of misleading the noble Baroness, but this response is nicer. My briefing says "resist" but there is a "but". This is an important matter because there is a problem if one cannot explain clearly in quite short statements to a camera or microphone stuck in front of one's face about the clarity of someone in this position, and one needs to be able to fall back on a process that is rigorous and that people trust. That is what we need to work on.
Amendment No. 49 would enable the Secretary of State to add further exclusions to the people who are independent for the purpose of subsection (2). As it is currently drafted, four groups of people are named in the Bill as being debarred from holding the position of chair, as they are not independent for this purpose. We previously acknowledged that the Bill does not list all
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those people whom we would regard as failing to meet the requirement for independence in relation to subsection (2). It would simply not be practical to do that. The Government have, however, given assurances that we want a genuinely independent chair. We have absolutely no doubt that the role requires someone of real competence, stature and independence. Bain said that the chair should be independent, and Ministers have long said the same.
People outside read what we say, so I want to put it on record that these are reserve powers, and we hope that we will not have to use them. We will not start out with the intention of using these powers, but if we need to draw them down, the Bill requires us to consult before making the regulations. The detailed proposals for the new negotiating body, including the process for appointing the chair, and ensuring that the chair has met the requirement of real independence, would be a matter of regulation.
I had a brief discussion this morning. I asked if ACAS was involved, because there is no such provision in the Bill. Even after public advertisement, using the Nolan principles, with someone from the Office of the Commissioner for Public Appointments sitting at your side going through the shortlist and interview processes, I would still expect such a person to get the imprimatur of ACAS as being someone qualified and experienced—and knowledgeable about negotiations and the kind of issues about which the body will be talking. That would give that extra stamp of approval.
We have to go through a process. We cannot go back to the old days and get a list of the great and the good, however qualified they might be. We probably have to do a bit more work, perhaps by letter rather than on the face of the Bill, to make it clear how serious we are that this person will be genuinely independent. Anybody can be independent—we could pick someone at random. A juror is supposed to be independent, chosen at random from the electoral register. We want someone of competence and stature and experience, who will be trusted by all parties concerned. That will not be an easy task, if we ever have to go down this road, simply because the circumstances of making the appointment would mean that the reserve powers have had to be used. So such a person would also need to be something of a diplomat.
We need to do more work in clarifying what we mean by this. Whether it can be done on the face of the Bill, I do not know, but we will put something extra in writing in the next couple of days to give more of our thoughts on this.
Baroness Hamwee: My Lords, I thank the Minister for that reply. I do not take issue with him about the need to have someone who is right for the job. Taking advice from ACAS or whoever about whether applicants have the right skills is common sense. It is welcome information, but I am not sure that it actually goes to the point of this amendment or the previous
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one. However, I shall wait to see what the Minister has to say over the next couple of days. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 35 [Preservation of existing pension scheme]:
Lord Hanningfield moved Amendment No. 50:
Page 18, line 26, at end insert "except in such cases as may be specified by the Secretary of State in regulations,"
The noble Lord said: My Lords, with Amendment No. 50, we return to the issue of whether Clause 36 unduly restricts the employment of police officers as retained firefighters. This clause penalises the retained part of the fire service in a way 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 a conflict between the duties of the police officer and his or her duties as a firefighter. I do not believe that there have been any examples of any conflict of interest caused by this professional relationship, but I am happy to stand corrected on this point if it helps me understand the Government's position. More importantly, however, I do not understand why a reasoned and rigorous process could not be put in place that could effectively prioritise between potentially conflicting roles. Surely that is not too difficult to implement.
There are many examples in public life where fulfilling the duties of one role ultimately gives way to another. I have no doubt that this choice would have to be made at difficult junctures, such as in emergency situations. That is why a process should be in place so that the police officer and his employers would know exactly where they stood 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 that need not result in what the Government would presumably class as an unacceptable conflict of responsibilities.
With this amendment, we are seeking to allow the Government an opportunity to specify in regulations the circumstances in which it would be possible to be both a police officer and a fire and rescue service employee, while not compromising the main intention of Clause 36. That is a much fairer and more effective way forward for both individual employees and the retained part of the fire service. It also reflects the fact that many of us are able to navigate potential conflicts of interest in many walks of life without undue restriction. I beg to move.
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9.30 p.m.
Lord Rooker: My Lords, I am in some difficulty. The amendment to page 18, line 26, is actually in Clause 35, which is about the preservation of existing pension schemes. The noble Lord's speech related to Clause 36, which talks about the prohibition on the employment of the police. We are on Amendment No. 50. I have a really good speech on the provision of pension schemes, but that was not the issue raised by the noble Lord. I have not got any notes on the prohibition on the employment of police officers.
Lord Hanningfield: My Lords, would it be preferable to remove it totally today and bring it back at Third Reading? I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 [Powers of fire-fighters etc in an emergency etc]:
Baroness Hanham moved Amendment No. 51:
"( ) 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 Baroness said: My Lords, with this amendment, we return to the issue of extending the rights of firefighters to effect entry if they reasonably believe a fire may be about to break out. In Committee, the Minister suggested that we contact the Chief and Assistant Chief Fire Officers Association to back up our argument with examples of where firefighters have been unable to take preventative action that they felt was necessary. We received an interesting response. It is true that they did not have any examples where they felt unable to act, or where they had been subject to a legal challenge. Nevertheless, the association is still of the opinion, as are we, that there may be situations that could render their actions technically illegal, or where erroneous preventative actions could be subject to legal challenge if they are not protected by the amendment.
I hope that noble Lords will indulge me in returning to this issue, if only in order to extract absolute clarity from the Government. It is a reasonable objective, and in this case some question marks remain over the clause. The last time we discussed the issue, the Minister said that the Government had considered it since it was raised in the Commons, but they had decided against amending the Bill because it was felt that the powers were already there. However, while I accept these arguments are made in good faith, I understand that the wording of Clause 43 and the Minister's reply in Hansard are such that they require an event to have occurred already in order to give rise to a reasonable belief that forced entry will help to protect life and property. That is not the point of our amendment, which includes the sense of a reasonable belief based on what might happen if certain conditions obtain.
As I was sitting here, I was trying to think of such a situation, and I am afraid that they are all pretty dire. However, one could think of a situation where someone called the fire brigade because they were
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afraid that a criminal act had been carried out that might end up in a fire; and while there was no fire there, the result of the act was that potentially fire could break out. In those circumstances, the fire brigade would not have the right of entry until the fire had broken out. That is an untenable situation, and it is what this amendment is all about. I am talking about the type of forced entry when it is essential that the fire brigade gets into a building, based on a reasonable belief that a fire was about to break out—although that subsequently proves to be erroneous because a fire does not break out. Could those decisions be subject to a legal challenge, if they were found to be erroneous?
We seek the assurance that the fire service is protected in taking action in anticipation. The fire service believes that it is not protected. The Bill represents a perfect opportunity to put that right, if that is necessary. I refer to when preventive action might be taken and might result in legal action. I beg to move.
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