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Baroness Hamwee: My Lords, I raised the matter in Committee, but I do not think that I need add anything to the debate.
Lord Rooker: My Lords, I shall do my best to respond. I do not claim to be speaking for Wales, but I am certainly speaking for the Assembly. No one is arguing with the fact that the National Assembly for Wales has not sought to exclude the power, and we have not sought to impose it. The Bill has obviously been drafted in full consultation with the National Assembly, and we take the view that the Assembly should in the end judge whether the power should be used, not this House.
I take the point made by the noble Lord, Lord Roberts, regarding the White Paper. However, that White Paper does not go into sufficient detail on such issues. At the relevant point, it states that the remaining responsibilities should be devolved, which implies that the National Assembly for Wales would have the same powers as the UK Secretary of State in relation to England, not a selection from the menu. In other words, the responsibilities are devolved from Westminster.
The North Wales Fire Authority has raised a point regarding an alleged conflict with Section 113 of the Government of Wales Act 1998. It was suggested that what we proposed went against the sustaining and promotion of local government in Wales. That is a somewhat tenuous observation. Section 113 simply requires the Assembly to establish a partnership council. It nowhere suggests that local authorities alone must decide on everyone sitting on local government bodies. Indeed, the composition of the partnership council itself, including the balance between the National Assembly for Wales and the local authority members, is to be decided by the National Assembly. That is under Schedule 11 to the Act. The Opposition can pray in aid those issues, by all means, but they are not sufficient for us to accept that we should change the legislation.
We hope that the situation never happens. I make it clear that the powers are those of last resort. It would be highly unusual for the situation to happen, but the fire and rescue service is an emergency service—as much so in Wales as in England. When designing the legislation, we need to ensure that the power exists for
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any situation that we can foresee or contemplate. If there is complete failure and breakdown of a combined authority, there may well be a need to appoint to the new authority people with experience of failing organisations and a track record of ability to turn them round. That is not an unimportant point to make.
Should such appointments have to be made, safeguards for local democracy are built into the clause, including the appointees being in a minority and excluded from votes on precepting. We have given assurances—I repeat them—that we are not talking about men and women being put in place on the body. The posts will be publicly advertised under the Nolan principles. If the power is ever used, its use will be transparent.
I say with due deference that we have not heard an argument in Committee or today that persuades us that there could never be a need for the power. However, as my noble friend Lord Evans said in Committee, it is a power, not an obligation. It is not the norm, so we do not expect things to start with it. Those with overall responsibility for the fire and rescue service—be they in England or Wales—should not be denied it as a last resort, a reserve power when there has been clear and transparent failure.
Although there is a difference between the parties, if there were a proposal by a Conservative government for a reorganisation, I genuinely believe that they would build in the kind of safeguards that would make us as an opposition say, "What's that for? Why do you need that power?". The answer would be, "We don't use it as the norm but, just in case there's a problem, we wouldn't have to come back to Parliament with primary legislation". The power is a last-resort, reserved power that we would not expect to be the norm.
Lord Hanningfield: My Lords, one can see from the amendment moved by my noble friend Lady Hanham just now and from this one that there is considerable concern. Mine is very relevant to the appointment of fire authorities in Wales. The Minister seems to suggest that there could be masses of failing fire authorities. I do not think that the evidence is that many fire authorities, if any, have failed at all. Other issues have normally caused the problems of the fire service.
There is a process now. Fire authorities are appointed from local authorities—they are not the entire local authority. If the fire authority were failing, the best process would be for other members of that local authority to be appointed. That is certainly what would happen in the local authorities of which I know. If people on it were not thought good enough, other people would be put on it. They would be elected councillors. We seem to be getting the message that we want to get away from having elected councillors on fire authorities. I am concerned about that. They are local services, and there should be local authority members on them. It is important that we pick the best local authority members to be on the fire authority.
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As the Minister will understand—he has obviously had correspondence on the subject, too—there is some feeling about the matter in Wales. People were not consulted about it, and the provision suddenly appeared in the legislation. In Wales, it is felt to be a very anti-local government move. I am concerned about it, as are several Members of this House. We might have to return to it on Third Reading. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 13 and 14 not moved.]
Baroness Hamwee moved Amendment No. 15:
"( ) If a scheme under section 2 provides for members of a combined authority to be appointed by the Secretary of State, it must also provide that the members to be so appointed are not employees of a fire and rescue authority."
The noble Baroness said: My Lords, I move Amendment No. 15 at the request of the Welsh fire authorities, which are seeking clarification. The effect of Section 80 of the Local Government Act 1972 is that someone cannot be an employee and a member of the same authority, but it is not clear whether that section applies to combined authorities. Perhaps the Minister can tell the House whether there are plans to include in orders provisions that a firefighter who is a councillor may not be appointed as a member of the fire authority that employs him.
The fire authorities feel that it would be adequate to have an assurance from the Dispatch Box that Ministers are not planning to use powers in a scheme under Clause 2 to appoint employees. We believe that that should appear in the Bill, but I shall be happy to hear the Minister's reply. I beg to move.
Lord Hanningfield: My Lords, I support the noble Baroness, Lady Hamwee. There is a long-standing requirement in Section 80 of the Local Government Act 1972 that employees of local government should not be members of the same authority. We are all familiar with that, particularly in relation to teachers and so forth. However, it is not clear whether that section applies to combined fire authorities. It certainly applies to fire and civil defence authorities in metropolitan areas and London because they are joint authorities for the purpose of Section 80. Are there plans to amend combination orders to make it clear that a fire fighter who is a councillor may not be appointed as a member of the fire authority which employs him? It is an important issue which should be clarified.
Lord Rooker: My Lords, we have no plans to appoint fire and rescue authority employees to a combined fire authority, but we would not wish to impose artificial restrictions that would prevent it doing so in all circumstances. The amendment is restrictive because it would ensure that no employee of a fire and rescue authority could be appointed by the Secretary of State to be a member of a combined fire and rescue authority. The amendment does not
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distinguish between employees of the fire and rescue authority in question and those who are employed by another fire and rescue authority. It is therefore an absolute prohibition and for that reason I must resist it.
I realise that there are grave misgivings—putting it politely, but that is what it says here—about the basic proposition that the Secretary of State should have these powers. That has been the theme throughout more than one Bill I have dealt with, and we have also debated that matter. Whether or not we have convinced noble Lords opposite, the power to appoint could in some circumstances be vital to ensure that the authority can take crucial decisions essential to the modernisation of the fire service—which is what the Bill is all about—they want to probe further what kind of people we might want to appoint if the situation arose.
We would not necessarily want to use the power to appoint to these authorities, which I have made clear. It sounds repetitious, but that is the case. Much will depend on the reasons for the combination scheme in the first place, but we are clear that we can envisage circumstances in which the constituent authorities have demonstrated that they lack the capacity to carry through change either because of insufficient expertise or a failure of leadership—not an unimportant point. The provisions allowing the Secretary of State to appoint a minority of members could then come into play.
References have been made to other legislation, some of which imposed political restrictions on fire and rescue authority employees which would prevent them becoming an elected member of their own authority. But that is not an argument for preventing an employee sitting on an authority in a non-political capacity. Many public bodies have executive directors; for example, it is proposed that the Northern Ireland fire chief automatically is a member of the Northern Ireland fire and rescue service board.
A prohibition on the officers of another authority being appointed could be quite restrictive; for example, we can envisage the circumstances where we might wish to appoint, say, a chief fire officer of a neighbouring authority to sit on a combined fire and rescue authority which we would be establishing. As I say, we have no plans to do so, but we can envisage circumstances in which that might be helpful to all concerned from the point of view of expertise, leadership and experience. It would therefore be negative absolutely to rule out such an opportunity, as proposed in the amendment.
We have said that appointments to fire and rescue authorities will be subject to an open appointment process. The order which establishes the authority will set out the process, including such matters as the public advertisement of the roles and an independent assessor. It follows therefore that we would not simply appoint an existing employee without open competition and advertisement. It is not as though the department and the Secretary of State can act on a whim, putting people on the authorities behind closed
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doors. It would not be like that. It will follow public advertisement with an independent assessment—but only in the kind of circumstances I have said we can envisage. It would not be the norm.
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