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Lord Rooker: My Lords, given the nature of the noble Baroness's speech in moving the amendment, I do not need to use the incredibly copious notes that I have; she has explained the position clearly. Superficially, it may look as though there is a problem, but we do not believe that there is.
I understand the reasoning behind the amendments but do not feel that, for example, the refusal of an English fire authority to enter into a reinforcement scheme with a Welsh authority warrants the intervention of respective governments. The same situation has existed between England and Scotland since the Scotland Act 1998 devolved the functions of the Secretary of State under the Fire Services Act 1947 to Scottish Ministers. Neither the Secretary of State nor Scottish Ministers have the power at the moment to direct authorities to make a reinforcement scheme involving both English and Scottish fire authorities.
However, this has not stopped authorities having such arrangements. For example, Cumbria has an agreement with the Dumfries and Galloway authority, while Northumberland has one with Lothian and the Borders. These are voluntary arrangements that have been entered into for operational reasons around the provision of a firefighting service rather than for wider national resilience reasons.
Given that there is no existing power of direction between cross-border authorities in Scotland and England, we are not convinced that the situation between Wales and England should be any different. In other words, the arrangement works—and has worked perfectly well—between Scotland and England. We have now got the experience and, therefore, we do not think that there should be any difference between England and Wales.
Baroness Hamwee: My Lords, it may be that relationships across the border are better than they are within the country, but the Minister's argument seems to be that there should not be any power of direction at all. Authorities obviously would be in the best situation and would carry on doing things in a commonsense way; they would not have to be directed.
In the happy world that the Minister has put before the House one would not need all this detail. I am not convinced about the technical aspects but shall not pursue the matter today; those who know more than me will read precisely what the Minister has said.
The noble Lord referred to his "copious" notes. If they provide a technical back-up to what he has said, perhaps he will write to me, put it on the record and share the information.
Lord Rooker: My Lords, I will do that.
Baroness Hamwee: My Lords, on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 28 and 29 not moved.]
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Clause 17 [Directions as to arrangements under section 16]:
[Amendments Nos. 30 and 31 not moved.]
Lord Hanningfield moved Amendment No. 32:
"(1) Subject to the following provisions, a fire and rescue authority may charge a person providing a service to him if—
(a) the authority is authorised, but not required, by an enactment to provide the service to him, and
(b) he has agreed to the provision."
The noble Lord said: My Lords, in moving this amendment, I will also speak to Amendments Nos. 33, 34 and 35. Amendment No. 32 would place fire authorities on a similar footing to other local authorities by placing the discretion for charging in the hands of the relevant fire authority. In Committee, the Minister gave a lengthy response about why the amendment would run into problems. I will tackle one of those arguments because, on reflection, it does not seem so compelling.
The first caveat that the Minister outlined was that the amendment would restrict the services for which the authorities could charge to those that they are not obliged to provide. He said that the amendment would be difficult because, in practice, authorities respond to a fairly large range of requests. However, as the Minister said, the rules of the game have changed so that responses to non-fire incidents have become part of their core functions. Therefore, we would concur that they should not charge for such call-outs. Also, subsection (5)(b) allows them to charge nothing, should they so wish.
The second caveat, which I agree may be problematic, is the need to have express consent from the person to be charged. I recognise that there are various pitfalls that could crop up around the way that this amendment is drafted. However, in most situations, the question of charging arises precisely because a core function is not involved. Because the situation is not deemed to be an emergency in which life or property is in danger, there should be enough time to seek consent.
Amendment No. 33 is designed to bring greater openness, clarity and transparency to the actual process of charging. I disagree with the Minister that the amendment would constrain an authority's ability to exercise its discretion appropriately. The wording of the amendment is helpful. It states:
That implies that the list cannot be exhaustive because it is impossible to list all specific circumstances. However, it can usefully list those that are found to recur, which would presumably help those who may be charged. I do not see why the list cannot be couched in language that alerts people to the nature of a charging regime and that inherently involves discretion and consequent variation in charges. The Government have looked at the amendment and tried to count up
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all the possible things that could go wrong rather than using a little initiative to see the benefit of what could be a very helpful amendment.
On Amendment No. 34, I record my gratitude to the Minister for his helpful letter regarding trading by fire authorities. I am glad that the Government recognise that, where authorities have been charging with an element of profit, they have been acting in good faith. However, although I recognise the arguments concerning the difference between charging and trading, I am concerned that the Government are still ultimately stifling innovation and alternative sources of funding among fire authorities, as well as creating an unfair system that restricts the capacity of certain authorities to charge—compared with the entrepreneurs of Essex to whom I referred earlier. We should remember that moneys gained from charging are ploughed straight back into existing budgets, helping many severely stretched budgets.
Amendment No. 35 is simply designed to increase the breadth of consultation that the Secretary of State must undertake before granting any powers of charging, especially to the groups that will be most affected. Unlike the Minister, I do not think that that means the whole country. The Minister promised in Committee to send me a list of consultees, but I have not received it. Perhaps that is my fault. I do not think that this minor amendment is too onerous. I beg to move.
Lord Rooker: My Lords, this group of amendments deals with charging, which I know is a sensitive issue. Taken together they would constrain charging. Amendment No. 32 is phrased in the same terms as Section 93 of the Local Government Act 2003. We do not consider that Section 93 or a provision in similar terms would be a suitable substitute for the charging provisions that exist in Section 3 of the Fire Services Act 1947, which is why we have brought forward Clause 19.
The first effect of Amendment No. 32, as a mirror of Section 93, would be to restrict the services for which authorities can charge to those which they are not obliged to provide. At present, the only response that authorities are obliged to provide is to fire calls, although in practice they tend to respond to a range of requests. We have made provision in the Bill for that situation to change and have imposed additional response requirements on the service in respect of traffic accidents and other non-fire incidents.
Amendment No. 32 is also likely to have the possibly unintended effect of frustrating the provisions of Clause 19(4). The latter is designed to enable authorities to recover the cost of dealing with an incident from a responsible third party in circumstances where it may not be appropriate to seek to charge the person to whom the supply of the service was made.
Amendment No. 33 would require an authority to compile an exhaustive list of the circumstances in which it might seek to levy a charge that had been specified by order. It would also require an authority
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to specify the circumstances in which it would charge nothing for one of those services. That is an over-restrictive approach and one that might constrain an authority's ability to exercise its discretion appropriately.
We accept that noble Lords opposite wish to see some clear public statement by an authority, perhaps on an annual basis, about how it will go about determining a charge and possibly even what the charge might be in terms of an hourly rate. Some authorities already do that. I do not know what the entrepreneurs in Essex do. I know that they make a lot of money, but I do not know how they go about that. We would be quite happy to see such action by authorities become the norm. Indeed, we suggested in the consultation document some bases on which the charge may be calculated and we see no reason why an authority should not be open about the methodology that it has adopted. However, to require a detailed explanation of how and when the authority will exercise its inherent discretion is a burdensome approach, and we do not want to constrain that discretion.
Amendment No. 34 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. The wording of Section 3 of the 1947 Act caused confusion among authorities about the extent of their powers. To claim that there was unanimity of opinion would be to ignore the evidence submitted by the fire and rescue authorities during the consultation exercise, the results of which will be published soon.
Greater clarity is needed and that is achieved by the clause as we have drafted it. However, we have no wish to create financial difficulties for authorities that have become accustomed, in good faith, to recovering a profit component on some of their activities. For that reason, we announced a concession in Grand Committee when we considered what was then Amendment No. 65. When an authority recovers an element of profit on a given service on or before 1 April this year, the concession will enable them to continue doing so for up to two years after the introduction of a freedoms and flexibilities package under the fire comprehensive performance assessment. 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 comprehensive performance assessment.
When an authority fails to achieve favourable assessments within two years, any trading order under this concession will be withdrawn. I wrote to noble Lords with further details of the concession following Grand Committee and will be happy to do so again.
Amendment No. 35 is unreasonably onerous, because it is very difficult to know how to draw the line at those people "likely" to be affected. As drafted, it could arguably require the Secretary of State to seek out and consult everyone in England, or anyone who might find themselves requiring the assistance of the
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fire service while in England, on the terms of any order he proposed to make. That is excessive. The requirement to consult that is in the Bill is in terms that are tried and tested.
The Government published a consultation document on our proposals for the first order in February and delivered it to a wide range of consultees. There was considerable media interest in the document, so many members of the public were aware of its existence. However, we have received less than 50 responses in total to the consultation. Of those, none was from members of the public.
It is also disappointing to note that only 25 of the 47 fire and rescue authorities in England considered this matter to be worthy of their comment. We expect to publish an analysis of the responses during August—this will necessarily be done during the Recess.
We have made it clear that any proposal to expand the scope of the charging regime, as detailed in the February document, would be the subject of a fresh consultation. That might, of course, make the other 22 fire and rescue authorities wake up to something that affects them.
I hope that I have given a fairly considered response to each of the amendments. As I say, the results of the consultation exercise will be published and, if need be, we will go through a further one later this year.
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