Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 107, in

clause 29, page 12, line 37, at end insert—

'(1A) An order under subsection (1) may only be made where one or more fire and rescue authorities is or is considered by the Secretary of State to be likely to become, unable to discharge its functions under sections 7, 8 or 9.'.

Clause 29 re-enacts in slightly different wording a major chunk of the Fire Services Act 2003, not including the most controversial section 1(1)(a)—the sunset clause. The clause gives power to direct

''the use or disposal of property or facilities''

of a fire and rescue authority.

In general, we agree, as we did during passage of 2003 Act, that it is sensible to have such a power for use in an extreme situation—for example, in a strike or industrial dispute situation—so that we never again see troops struggling to manage with grossly inadequate and, as some would say, even dangerous 50-year-old civil defence fire tenders when perfectly good, ''state of the art'' red fire engines are locked up, apparently under the control of the people who are on strike. It raised the gall of many during the dispute—I believe from comments that I heard that the Deputy Prime Minister was among them—to see red fire engines behind locked doors and firefighters warming themselves on fire authority premises while troops had to make do with draughty Territorial Army drill halls and the like as a base for their operations. It has to be acknowledged that during the dispute some authorities clearly lacked either the political will or the backbone to confront the union over access to equipment and premises.

I debated the subject with my own chief fire officer during the dispute to find out what was going on on my patch. As the Under-Secretary will know, the situation is a little more complicated than the knee-jerk reaction of passing motorists to seeing firefighters in possession of publicly owned fire stations while on strike. During the strike, the practical consideration in many areas—in fact, I think, in all areas without exception—was that firefighters turned out for real emergencies. The judgment of the chief fire office in my area was that if firefighters were not allowed to congregate on fire authority premises and, effectively, to keep possession of their equipment, they would not be in a position to turn out.

Such matters are easier to discuss in the cool light of day than they were in the heat of the dispute. Then, there was a feeling that the unions were being allowed to gain a propaganda victory by retaining possession of their equipment—I have slipped into the terminology myself; I should have said retaining possession of the fire authority's equipment—and then turning out as heroes if required to effect a rescue or put out a particularly serious fire.

Ministers' first duty must be to secure the safety of the public. However galling it is, the Minister must consider carefully whether public safety would be

better protected by allowing striking firefighters to retain control of equipment on the basis that they will turn out when it is absolutely necessary. I am slightly nervous that, in the hothouse atmosphere of a dispute, the powers under the clause might be used as a knee-jerk reaction in a way that could damage public safety.

One issue that inevitably comes up is that, as the draft framework makes clear, the 19,000 military personnel who were available during the last dispute would almost certainly not be available again, owing to military overstretch, cuts in numbers and even—possibly—privatisation of parts of the defence fire services, denuding it of the specialist skills required. So, the issue in another industrial dispute might not so much be access to red fire engines but who the heck will drive them.

I think that the 2003 Act was sabre rattling with a purpose; the dispute had still not been resolved. The outcome of the strike vote was, to some extent, secured by the expression of determination to draw a line under the issue in the form of the 2003 Bill. The Minister of State, however, went to great lengths during debates on that Bill to emphasise the temporary nature of the powers that he was taking. Time considerations mean that I will not reach into my pile of papers and quote the numerous times when he referred to the time limit that the Government accepted on the powers in the 2003 Act.

It is technically true that nothing that the Minister of State said during the 2003 debate precluded a re-enactment of precisely the same powers in a new Bill. It is not often that I would spend much of my time defending the position of the hon. Member for Hayes and Harlington (John McDonnell), but when the Minister sought to reassure him and other Labour Members who rebelled against the Government in the vote on that Bill, he conveyed the impression that the matters subject to the 2003 Act would be reviewed and that new, permanent proposals would be made in the White Paper and this Bill. Nothing that the Minister said would have prepared the reasonable, independent observer for the wholesale re-enactment of those time-limited powers—except for very minor changes in the wording. A question of openness arises about the intention that the Government had. The clause will be accepted by the Committee with only a little probing now, but I suspect that the Government will find that their back Benchers will want to express their sense of betrayal that measures that were said to be time-limited in 2003 have been brought back as permanent legislation.

Amendment No. 107 would limit the use of the powers to the circumstances in which Ministers say that they are needed. It provides for the use by the Secretary of State of the powers in the clause when either a fire authority cannot, or he reasonably expects that it will not be able to, discharge its functions under clauses 7, 8 and 9 covering fire, road traffic accidents and other emergencies—typically, a situation such as an industrial dispute or some other paralysis that affects the fire and rescue authority.

Including such a provision would allay the fears of those who spoke during the 2003 debate about the possible use of the powers to privatise fire service facilities and to require the disposal of property and the passing of equipment and facilities to other service providers. As the Secretary of State intends to use the clause only in the case of an industrial dispute or similar emergency when a fire authority cannot discharge its functions, I urge the Under-Secretary, regardless of whether he accepts my amendment, to tighten the wording to reassure a sceptical micro-public on his Back Benches that that is the intention—making the wording fit the stated intention. If the Under-Secretary will not accept such a restriction, he will need to tell us when a fire and rescue authority would be discharging, and would be expected to be able to continue to discharge, its statutory functions but it would be considered legitimate to use the powers in the clause.

Once again, I emphasise the Opposition's belief that fire and rescue authorities must have the primary responsibility for the discharge of their functions. It is right and proper that the Secretary of State should have the power to intervene when they fail to discharge those functions either because they are incompetent-—that is dealt with elsewhere in the Bill—or because something such as a strike prevents them from doing so. It is also proper that he should be constrained not to interfere in that way if they are discharging their functions fully and effectively. The Bill, with the clause but without the amendment, gives too wide a power of intervention. I look forward to hearing how the Under-Secretary will respond to those concerns.

Mr Phil Hope (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Corby, Labour/Co-operative)

I can provide the assurance that the hon. Gentleman seeks, but, unfortunately, I cannot accept his amendment.

The hon. Gentleman is right that the clause was specifically drafted to ensure that in the event of industrial action the Secretary of State could act swiftly to secure assets and facilities—for example, appliances—for those providing emergency fire and rescue cover. Clearly, that is not dealt with under other provisions in the Bill. I echo his point that we are not repeating the measures in the 2003 Act to impose a pay settlement on the fire service. That was the issue of most concern when the Fire Services Bill was considered in Parliament. The power that we are carrying over into this Bill is more restricted than that passed in the 2003 Act because it relates only to public safety.

I am pleased to say that negotiations between the employers and the Fire Brigades Union continue to make good progress. We hope that all parties move forward with a fresh start. The reason for the clause is that the Government have a duty to ensure that public safety is foremost in fire service actions. The amendment would undermine the Secretary of State's ability to take action, which is critical to ensuring public safety.

The hon. Gentleman makes a good point about the requisition of vehicles during a strike when some firefighters turn out in an emergency. We would

consider that carefully in the event of a dispute because it is true that some firefighters did turn out in an emergency. As he recognises, however, that might or might not be so in a future dispute, so it is important to have fall-back measures to use sensitively at the time.

Amendment No. 107 would make the failure or anticipated failure of a fire and rescue authority to discharge its core operational functions under clauses 7, 8 and 9 the trigger for the powers of intervention. It would create further delay, thereby preventing critical preparatory work were industrial action proposed. It would leave the Secretary of State vulnerable to a legal challenge by a recalcitrant fire and rescue authority that refused to allow its assets and facilities to be used by others.

Historically, fire and rescue authorities have argued that their duty to make provision to deal with fires in normal circumstances does not extend to industrial action. They took that view in the most recent dispute. In making failure to discharge an operational function the trigger, there is a real risk that, in the event of fires or road traffic accidents, the Secretary of State's powers to secure assets will be frustrated.

I want to assure the hon. Gentleman that the Secretary of State intends to use the powers only as a last resort and where absolutely necessary to ensure public safety in the event of industrial action. We expect that, in practice, most if not all authorities would co-operate if their property or facilities were needed to provide emergency cover.

Those planning for emergency cover need the assurance that they will be able to obtain equipment at relatively short notice. Those providing cover need to have access to the most appropriate equipment for their own safety and that of the public. The amendment would remove that assurance and create a serious delay in accessing vital equipment, which would result in a reduction in public safety. I understand that we agree on the clause, but I ask the hon. Gentleman to withdraw the amendment.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I do not think that we disagree on very much at all, but the Under-Secretary has made an important point, which I had not appreciated. If I understand him correctly, he presents a technical argument in which the legal view is that failure to deliver the service may not be failure to discharge the functions of a fire and rescue authority. Therefore, the test that I seek to impose might not work because even though no fire cover were provided, the authority could be deemed to be discharging its functions.

A broader issue is raised, and the Under-Secretary might consider whether the Bill presents a good opportunity to make it crystal clear that there is no ambiguity about the matter. Elsewhere in the Bill reference is made to the Secretary of State dealing with failures by fire and rescue authorities to discharge their functions—at least I had read those provisions in such terms. Perhaps it would be useful at a later stage to think about defining ''discharge of functions'', to make it absolutely clear—for reasons of allowing the intervention of the appropriate Secretary of State for failure to discharge—that a failure to provide a service

because of what might be deemed a force majeure event affecting the fire authority is effectively a failure to perform its function. However, I accept what the Under-Secretary says, and I am glad that he acknowledges the complex issues involved. Some very careful decisions would have to be taken before such powers were used in any broad way, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I have two specific questions for the Under-Secretary. I know that parliamentary drafting is very precise, so there must be a reason for the wording of the 2003 Act, as used in the second line of clause 29(1) of this Bill. The 2003 Act refers to giving ''specific or general directions'', while the Bill refers to giving ''general or specific directions''. I know that that could not be an accidental inversion of words, because parliamentary drafting does not work by accident. Someone has decided since 2003 that it must be ''general or specific'' rather than ''specific or general''.

Secondly, will the Under-Secretary tell us whom he would expect to consult under subsection (4)? The wording—used repeatedly in this Bill—is entirely unacceptable. It states:

''the Secretary of State must consult any persons he considers appropriate.''

Having to consult whoever he thinks he should consult is not much of an onerous task. That does not impose any burden at all, so will the hon. Gentleman tell us who will be consulted?

Mr Phil Hope (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Corby, Labour/Co-operative)

I will have to seek clarification on why the wording is the reverse of that in the Fire Services Act. I will write to the hon. Gentleman if I can find an answer.

On subsection (4), throughout the Bill we have endeavoured to restrain ourselves from listing lots of people and organisations whom we would consult because there will always be some people who are missed off any such list.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Owing to the particular circumstances in which the clause would be likely to be invoked, the question is whether the Minister would consult the union carrying out industrial action when he needed to use the powers.

Mr Phil Hope (Parliamentary Under-Secretary, Office of the Deputy Prime Minister; Corby, Labour/Co-operative)

We would consult all fire and rescue authorities and anyone else whom the Secretary of State thought was appropriate at that time. That may or may not include the union, and it may include other authorities. It is a comprehensive measure, which gives the Secretary of State the flexibility to consult whomever he believes it is important to consult when a decision must be made.

Question put and agreed to.

Clause 29 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Jim Murphy.]

Adjourned accordingly at twenty-four minutes past Eleven o'clock till this day at half-past Two o'clock.