Justice 2 Committee, 25 Jan 2005

Meeting date: Tuesday, January 25, 2005

Official Report 312KB pdf

---

Fire (Scotland) Bill: Stage 2

Item 3 on the agenda is our continued stage 2 consideration of the Fire (Scotland) Bill. We will not allow the minister to feel bereft and assailed by a panic attack. We will wait to ask questions until he is supported by his advisers.

No, it is okay. I am quite happy to fly solo, convener.

I welcome the minister's advisers on the Fire (Scotland) Bill. They are Rosemary Whaley, Alison Coull—there does not seem to be a name-plate for her, but I see that someone is nodding in appreciation—Jill Clark, Brian McKenzie and Johann MacDougall.

Once again, members should have the marshalled list of amendments and the groupings. We have quite a number of amendments to consider. Although some are essentially technical and drafting amendments, I am nonetheless conscious that we have a big agenda before us this afternoon; item 4 is also quite substantive. Therefore, I suggest that we have only brief debates on amendments that are moved by members and that members take no more than three minutes when they speak to amendments before moving them. I will then allow members who are so minded to speak briefly to amendments before I allow the minister to comment briefly, again for no more than three minutes. In that way, I hope that we can make solid progress through the amendments.

Section 49—Duties of employers to employees

Amendment 34 is grouped with amendments 48, 35, 36, 85, 86, 37 and 87 to 90.

I notice that members' amendments are very rare in the marshalled list, so I will take delight in moving one of the three amendments to which I will speak today.

On first sight, it might seem remarkable that amendment 34 seeks to delete the word "reasonably" from section 49, when the law places so much emphasis on reasonableness. However, I understand that recent health and safety legislation from the European Parliament prefers to apply a much stiffer test on such matters than the "reasonably practicable" test that would apply under the bill.

The approach of European regulations and directives requires a risk assessment and calculation of perceived danger in that risk. In other words, although employers might say that such and such an approach to health and safety precautions would be too costly when measured against the low risk involved, European directives in effect overrule that approach in favour of a much higher standard of safety. Under the European approach, any practice that is unsafe or that involves personnel or property being unable to be protected against danger ought not to continue, irrespective of the cost. The emphasis should be not on an economic test but on putting people's safety first.

In my view, the term "reasonably practicable"—which is notably not used often in the bill—does not reflect the change in opinion that has occurred in our approach to health and safety matters, and is insufficient to meet current European legislation. By deleting the word "reasonably" while leaving "practicable", amendment 34 would let the much higher standard of safety cover of the European directives apply.

I have delight in moving amendment 34.

Colin Fox has made it clear that the intention behind amendment 34 is to ensure that there is no doubt about the matter, but I am not sure that the phrase is not perhaps tautological. Does "practicable" not imply "reasonable"? I know where Colin Fox is coming from—we all want to ensure that the i's are dotted and the t's crossed, but I am not certain that the phrase is anything more than tautological.

Earlier, for one exhilarating moment, I thought that I had slipped my minders for the afternoon, but they have encased me again.

To some extent, Bill Butler is right to say that a degree of tautology is involved. However, the words that we are discussing also have significant legal implications. The use of the phrase "reasonably practicable" was raised in evidence by the Fire Brigades Union; it was suggested that the Executive and Parliament were acting ultra vires. Following that union's oral evidence on 14 September, my officials wrote to the committee to advise that the Executive is content that the approach that has been adopted in the bill will correctly implement the framework directive and is within Parliament's legislative competence. I know that the matter has been the subject of discussions between law officers in Scotland and in England.

The sections in part 3 reflect the duty that is placed on employers in relation to other aspects of health and safety at work by the Health and Safety at Work etc Act 1974, which the United Kingdom regards as being the legislation that currently implements the appropriate 1989 European Council directive. If amendments 34 and 37 were agreed to, the employer's duty would be to ensure the safety of his or her employees as far as is practicable rather than as far as is "reasonably practicable", as the bill currently provides. That would mean that employers' duties in respect of fire safety in the workplace differed from their duties in relation to other health and safety at work issues. Employers' duties in Scotland would also differ from the duties of employers in England, which could cause confusion. I do not believe that the issue caused concern or was identified as being a major problem by the FBU when the law was considered at Westminster. We could find ourselves acting out of concert with other parts of the United Kingdom on the definition of what is required at work.

It is our aim to simplify the fire safety regime, not to complicate matters unnecessarily. It is worth while to point out that the United Kingdom's record on health and safety at work is among the best in Europe. An unfair burden could be imposed, in that employers could be required to take measures where practicable but without any assessment's being made of whether the measures were reasonable in the circumstances. In other words, an employer could be required to carry out disproportionate work at disproportionate cost on a minor issue, regardless of whether that work was needed, simply because of the deletion of the word "reasonably". I do not believe that that is the proper way to proceed.

We work within a very strict health and safety at work regime, which is right. I understand the sentiments behind amendment 34, but it would leave us out of line with other aspects of health and safety at work regulations and out of step with what is happening in the rest of the United Kingdom in relation to fire safety. I do not believe that the amendment is necessary.

Do you wish me to discuss the other amendments in the group?

I would be happy if you would speak to amendment 48 and the other amendments in the group. You have another three minutes in which to do so.

Do you want me to speak to amendments 35 and 36?

Yes—if you have something to say about them.

Amendments 35 and 36 appear to have been lodged in an attempt to address concerns that were expressed during stage 1 that the bill would make industrial action by firefighters unlawful. I addressed that issue when I gave evidence to the committee—

I am sorry to interrupt the minister, but I want to raise an issue of procedure. Amendments 35 and 36 are separate amendments. Amendment 35 is in my name. I wish to be courteous to the minister, but surely I am entitled to speak to the amendment before the minister replies. I seek guidance on this point from the convener.

Amendment 34 is in your name, Mr Fox, and you have been asked to move it and to speak to the other amendments in the group. I assume that you have done so.

I spoke to amendments 34 and 37 because they are on the same issue. I did not take the opportunity to speak to amendments 35 and 36 because they are on separate issues.

I am advised by the clerk that the amendments are in the same group and have to be dealt with at the same time. We will let the minister deal with the amendments and return to you to wind up. At that point you can cover the points.

I apologise for the interruption.

I suggest that, for the flow of argument, I do not refer to amendments 35 and 36. I can address the others and come back to them. I am entirely in your hands, convener.

There might be logic in that, if you are happy to do that, minister.

Okay—I shall do that.

Amendment 48 will remove an unnecessary enabling power. It was the intention to include—under the fire safety regulations in section 54—provisions on electrical luminous tube signs. In order to replicate the existing provisions in the Electrical Luminous Tube Signs (Scotland) Regulations 1990, an offence provision was necessary. It has been agreed that building regulations are a more appropriate vehicle for those provisions so the offence provision, which was included only for that particular purpose, is no longer required.

Amendments 85 and 86 will extend disapplication of the due diligence defence that is set out in section 67(9) to any other duties that are specified in the fire safety regulations. For example, the power might be used in relation to the duty to eliminate or reduce risk from dangerous substances. Failure to fulfil that duty could have serious consequences.

Amendments 87 and 88 will enable Scottish ministers to apply the reverse burden of proof, that is set out in section 67(10), to proceedings for offences that are set out in regulations. As with amendments 85 and 86, that power may be used in relation to the duty to eliminate or to reduce risk from dangerous substances. In the event of non-compliance, we might want to apply the reverse burden of proof in relation to the offence.

Amendment 89 aims to address the situation in which a person with duties under part 3 has committed an offence, but where its commission by that person was due to action or inaction by a third party. The amendment provides for prosecution of that third party, regardless of whether the person with the duties under part 3 is prosecuted or not. The provision is equivalent to section 24 of the Fire Precautions Act 1971.

Amendment 90 will extend the provision at section 69 to other persons who will be specified in regulations. Section 69 will ensure that the fact that an offence was caused by the acts or omissions of employees will not afford an employer a defence in proceedings for an offence. Amendment 90 will also apply the provision to those persons who are specified in regulations. For example, if an employer assigns fire safety assistance duties to a competent person under draft regulation 18 of the fire safety regulations, the regulations will specify that the employer cannot rely on a breach of the fire safety duties by that person as a defence.

Thank you minister. Colin Fox may now speak to the other amendments in the group and wind up on amendment 34. I ask him thereafter to confirm whether he wants to press or withdraw the amendment.

I am grateful, convener. To maintain the logic of the argument, perhaps I should reply to the section that we have discussed rather than open up another front with the minister.

The minister and Bill Butler made the point that there are significant legal implications in the matter of health and safety. Deletion of the word "reasonably" will make clear the practicable standard. We are talking about a higher practicable standard, in my view.

The minister suggests that if amendment 34 were agreed to, it would take us out of line with UK legislation. I contend that to leave the word in will take us out of line with best practice in Europe. If the minister is saying that we have some of the best health and safety standards in Europe, we should welcome and protect that, not reduce it by accepting a lower standard than the health and safety directives that are coming out of Europe suggest. I will therefore press amendment 34. Do you want me to speak to amendment 35?

Yes.

Amendment 35 is a response to questions that I put to the deputy minister in committee and in the stage 1 debate. Although I welcome the assurances that the minister gave on both occasions, the Executive has failed, in my view, to provide a cast-iron assurance that it has no intention of outlawing strike action in pursuit of a legal industrial dispute.

I had hoped that the minister would have lodged his own amendment to stipulate that the provisions of section 67 would not apply, and would not be seen to apply under any circumstances, to individuals who are involved in lawful industrial action. The minister may say that the Executive has no intention of outlawing strike action but, as the bill stands, the question is left open to legal challenge and the decision will ultimately not be for ministers, but the courts. My amendments seek to close the door firmly on any prohibition or outlawing of strike action and to ensure that the right to lawful industrial action is protected.

The question is, that amendment 34 be agreed to. Are we all agreed?

No.

There will be a division.

For

Fox, Colin (Lothians) (SSP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Macmillan, Maureen (Highlands and Islands) (Lab)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Pringle, Mike (Edinburgh South) (LD)

The result of the division is: For 1, Against 6, Abstentions 0.

Amendment 34 disagreed to.

Amendment 38 is in the name of the Minister for Justice and is grouped with amendments 39 to 44, 52, 58, 71 and 76.

Ten of the amendments in the group will insert an improved form of words in a number of places and will clarify what "safety" means—namely, "safety in respect of harm caused by fire"—so that there is no doubt that that incorporates fire precautions and fire prevention.

Amendment 42 is simply a tidying-up amendment that will remove unnecessary wording and bring the reference at section 50(4) into line with similar references elsewhere in the bill.

I move amendment 38.

Amendment 38 agreed to.

Amendment 39 moved—[Hugh Henry]—and agreed to.

Section 49, as amended, agreed to.

Schedule 2 agreed to.

Section 50—Duties in relation to relevant premises

Amendments 40 to 44 moved—[Hugh Henry]—and agreed to.

Section 50, as amended, agreed to.

Section 51 agreed to.

Section 52—Duties of employees

Amendment 45, in the name of the minister, is grouped with amendments 46, 95 and 96.

I would like to link amendments 45 and 46 to Colin Fox's comments on amendments 35 and 36, to which I could not respond. Can I do that?

That is acceptable.

Thank you. Amendments 35 and 36 relate to the allegation that what we are doing would make industrial action by firefighters unlawful. When I gave evidence to the committee, I categorically denied that. I refuted the allegation again during the stage 1 debate and I am happy to repeat today that what is suggested is not the case.

I am disappointed that some people have made public comment not only to Fire Brigades Union members, but to the public, to raise fear, concern and alarm that we were trying to make strikes illegal. That is categorically untrue. The people who say that have misunderstood the situation or are trying for their own malign reasons to portray such a situation.

We have never intended to make strikes illegal. We have said specifically and categorically that that is not our intention. I have said that more than once. Nothing in the bill can be construed in that manner. However, as I promised the committee—I do not remember whether Maureen Macmillan or someone else raised the issue before—we have reflected on whether we could do more to enhance that assurance. That is why we have lodged amendments 45 and 46. The amendments clarify the extent of employees' duties to take reasonable care for their own and other people's safety in the event of a fire. The duty will apply when employees are at work, wherever they are at work.

We hope that the amendments will also clarify that the offence provisions in section 67(2) are linked to the employee's duties when at work. As someone who is engaged in lawful industrial action is not at work, there is no way that section 67 offences would unintentionally catch someone who was on strike. As I said categorically in winding up the stage 1 debate,

"the Executive has no intention of making industrial action unlawful".

It is incorrect to interpret sections 67 and 52 in that way. I also said:

"Nothing that we are doing will provide any opportunity for powers to be used in the suggested way. That is not our intention and would not have our support."—[Official Report, 18 November 2004; c 12033.]

As I said, I am disappointed that some have, for their own reasons, sought to interpret the bill in a completely different way. Some comments that have been made in the local and national press are completely untrue. I have written to the convener—I do not know whether the letter has been issued—to clarify the situation. If the letter has not been issued, I will ensure that that happens immediately after the committee meeting. I will also take the step of trying to assure board employees that the allegations are completely untrue. In the light of the further amendments, I hope that Colin Fox will accept the assurances that I have given.

Amendments 95 and 96 will tidy the definitions in section 73. Amendment 45 will introduce the term "at work" and a definition will be added to cover that. The definition of a workplace will be adjusted to make it clear that it also applies to the employer's employees.

I move amendment 45.

I take the opportunity to welcome the minister's public statement here today. I know that he is not talking about me, with regard to any public statements that have been made outside the committee on the matter.

I am happy to confirm that.

I welcome the minister's remarks, as it seems to me that he is saying categorically that the Executive has no intention whatsoever to make strikes illegal. I welcome amendments 45 and 46. I said earlier that I hoped that the Executive would come forward and clarify the situation and I believe that the amendments do that. I will be happy not to press my amendments 35 and 36.

I thank the minister for lodging amendments 45 and 46; they clarify the situation and I am grateful for that. Although I do not believe that the Executive ever had any intention of making strikes illegal, I thought that it was important for it to clarify the intention of the bill and put the matter beyond doubt.

Amendment 45 agreed to.

Amendment 46 moved—[Hugh Henry]—and agreed to.

Section 52, as amended, agreed to.

Section 53—Risk assessments: power to make regulations

Amendment 47, in the name of the minister, is in a group on its own.

Amendment 47 is merely a tidying amendment that removes an unnecessary enabling power. The general enabling power at section 53(1) is sufficient for the purposes and it will be relied upon instead, if required.

I move amendment 47.

Amendment 47 agreed to.

Section 53, as amended, agreed to.

Section 54—Scottish Ministers' power to make regulations about fire safety

Amendment 48 moved—[Hugh Henry]—and agreed to.

Section 54, as amended, agreed to.

After section 54

Amendment 49, in the name of the minister, is in a group on its own.

Amendment 49 will enable Scottish ministers to apply a provision for the safeguarding of firefighters to areas that are used in common by the occupants of private dwellings. The amendment will ensure that measures that are provided to protect firefighters are properly maintained; it addresses the safety and protection of firefighters when they attend fires and other operational incidents.

Examples of the equipment or facilities that may be covered by the power are rising mains, smoke outlets, ventilators and firefighting lifts. In recognition of the fact that many blocks of flats, for example, have such equipment in their common areas, subsection (2) of the new section allows the maintenance provision in regulations to be applied to such common areas.

I move amendment 49.

Amendment 49 agreed to.

Section 55—Special case: temporary suspension of Chapter 1 duties

Amendment 50, in the name of the minister, is grouped with amendments 51 and 53.

Amendments 50 and 53 are intended to clarify that the circumstances in which fire safety duties are to be temporarily suspended are when the persons who are mentioned in the section, such as constables, are at work in that capacity and are actively undertaking duties that are connected with their work.

Amendment 51 is intended to clarify that a temporary suspension of duties will operate only when a constable, rather than a

"member of a police force",

is undertaking their duties. The amendment also confers a power to apply the section to other persons, which will enable the effect of the section to be extended to situations where other services are operating.

I move amendment 50.

Amendment 50 agreed to.

Amendments 51 to 53 moved—[Hugh Henry]—and agreed to.

Section 55, as amended, agreed to.

Section 56—Enforcing authorities

Amendment 54 is grouped with amendments 56, 57 and 59 to 61.

Currently, Her Majesty's chief inspector of fire services, who has responsibility for inspections on Crown premises, may enter into an agreement with a fire and rescue authority that will enable the authority to carry out inspections on that person's behalf. Amendment 54 simply ensures that the chief inspector has continuing power to enter into those arrangements.

Amendments 56 and 57 are minor tidying amendments, the first of which ensures clarity, as well as consistency in language, and the second of which clarifies and improves understanding of the section. Amendments 59 and 60 will place an obligation on enforcement officers who exercise their powers to carry out inspections and to measure and test premises or articles to do so in the presence of the person who has the chapter 1 duties, if that person so requests. The amendments bring the section in line with powers to dismantle an article and ensure a consistent approach across the powers in the bill.

Amendment 61 addresses an anomaly in the bill whereby an enforcement officer exercising powers to take samples of an article for testing is obliged to leave a notice, whereas an enforcement officer exercising powers to remove an article in its entirety is not obliged to leave a notice.

I move amendment 54.

Amendment 54 agreed to.

Amendment 55 is grouped with amendments 63, 91 to 94, 97 and 108.

Amendment 55 will allow for the making of regulations to modify the identities of enforcing authorities. Amendment 97 makes that new regulation-making power, and the regulation-making power at section 72(6), subject to the affirmative procedure.

Amendment 63 is a minor tidying amendment, which links the reference to licensed houses in multiple occupation to the definition of relevant premises, rather than duplicating the definition in the body of the section.

Amendments 91 to 94 and 108 set out more clearly the "relevant premises" that are caught by part 3 of the bill. By using the definition of "domestic premises" used in the Health and Safety at Work etc Act 1974, we effectively made shared or common areas of private dwellings subject to the fire safety regime. That would have meant, for example, that if two homes shared a common driveway, that driveway would have been caught by the part 3 provisions. That was clearly not our intention and would, in any case, be unenforceable. We have therefore recast the definition of "relevant premises" to exclude private dwellings and their shared areas and to make clear the premises that are to be covered by the part 3 provisions.

I move amendment 55.

Amendment 55 agreed to.

Section 56, as amended, agreed to.

Section 57—Powers of enforcement officers

Amendments 56 to 61 moved—[Hugh Henry]—and agreed to.

Section 57, as amended, agreed to.

Section 58—Prohibition notices

Amendment 62 is grouped with amendments 64 to 70, 72 to 75, 77 to 81 and 84.

Amendment 62 clarifies the point at which an enforcing authority's power to issue a prohibition notice will be triggered. The intention is that a notice will be issued only if, in the opinion of the enforcing authority, the use of those premises involves a risk of death or injury so serious that the use needs to be prohibited or restricted. The bill as it stands does not specify how prohibition, enforcement or alterations notices may be withdrawn and may therefore be subject to confusion and misinterpretation. Amendments 64, 68 to 70 and 78 clarify that such notices may be withdrawn in writing, which reflects current practice.

Amendment 65 is intended to tidy up the language in relation to the contents of an enforcement notice and to improve readability. Amendments 66 and 67 have been lodged to reflect in the consultation duty the terminology that is used in the Building (Scotland) Act 2003, the provisions of which will come into force in advance of those of part 3 of the bill.

Amendments 72 to 75 and 77 are intended to clarify the alterations notice procedure, which, as the bill stands, may be difficult to follow. The amendments clarify that the trigger of the duty to notify under an alterations notice is where the change is one that is listed in section 60(5) and that, if made, would constitute a serious risk to relevant persons. Because the alterations notice process is about notifying an enforcing authority in advance of a proposed change, the amendments make it clearer that the notification should be sent to the enforcing authority before the change is made.

Amendments 79 and 80 are tidying amendments that address anomalies in the appeals process. Amendment 79 will enable anyone who has a legitimate interest in the premises through having either section 49 or 50 duties—for example, the owner of the premises—to appeal against the service of a prohibition notice. Amendment 80 clarifies the circumstances in which a suspension order will cease to have effect if it has not been recalled by the sheriff.

Amendment 81 sets out how the determination process will interact with potential enforcement action, which will make both the benefits and impact of a determination clear. Amendment 84 provides consistency between the language that is used about prohibition notices in section 58 and that used in the linked offence provision in section 67(4)(d).

I move amendment 62.

Amendment 64 reads:

"In section 58, page 30, page 13".

For the record, I clarify that it should state "line 13" instead of "page 13".

That is correct.

Amendment 62 agreed to.

Amendments 63 and 64 moved—[Hugh Henry]—and agreed to.

Section 58, as amended, agreed to.

Section 59—Enforcement notices

Amendments 65 to 70 moved—[Hugh Henry]—and agreed to.

Section 59, as amended, agreed to.

Section 60—Alterations notices

Amendments 71 to 78 moved—[Hugh Henry]—and agreed to.

Section 60, as amended, agreed to.

Section 61—Appeals

Amendments 79 and 80 moved—[Hugh Henry]—and agreed to.

Section 61, as amended, agreed to.

Section 62—Determination of disputes

Amendment 81 moved—[Hugh Henry]—and agreed to.

Section 62, as amended, agreed to.

Sections 63 and 64 agreed to.

Section 65—Consequential restriction of application of Part I of Health and Safety at Work etc Act 1974

Amendment 82, in the name of the minister, is grouped with amendment 83.

Amendments 82 and 83 are technical and are related to the interaction between the reserved and devolved elements of fire safety legislation. As the committee is aware, that issue is complex and has been the subject of on-going consideration and discussion.

At present, section 65 of the bill provides that part I of the Health and Safety at Work etc Act 1974 has effect in relation to fire safety only in so far as it applies to reserved matters. That was intended to clarify that part 3 of the bill and related subordinate legislation would, once in force, provide for all aspects of general fire safety as devolved to the Scottish Parliament. I hope that those few remarks satisfy the committee.

I move amendment 82.

Amendment 82 agreed to.

Section 65, as amended, agreed to.

After section 65

Amendment 109, in the name of the minister, is in a group on its own.

Amendment 109 ensures that fire safety matters are dealt with under part 3 of the bill and related regulations, not in licensing, certification or registration provisions.

I move amendment 109.

Amendment 109 agreed to.

Section 66—Consequential restriction of application of certain other enactments

Amendment 83 moved—[Hugh Henry]—and agreed to.

Section 67—Offences

Amendment 35 not moved.

Amendment 84 moved—[Hugh Henry]—and agreed to.

Amendment 36 not moved.

Amendments 85 and 86 moved—[Hugh Henry]—and agreed to.

Amendment 37 not moved.

Amendments 87 and 88 moved—[Hugh Henry]—and agreed to.

Section 67, as amended, agreed to.

Section 68 agreed to.

After section 68

Amendment 89 moved—[Hugh Henry]—and agreed to.

Section 69—Employee's act or omission not to afford employer defence

Amendment 90 moved—[Hugh Henry]—and agreed to.

Section 69, as amended, agreed to.

Sections 70 and 71 agreed to.

Section 72—Meaning of "relevant premises"

Amendments 91 to 94 moved—[Hugh Henry]—and agreed to.

Section 72, as amended, agreed to.

Section 73—Interpretation of Part 3

Amendment 110, in the name of Bill Butler, is grouped with amendment 111.

I am delighted to speak to both amendments in the group.

The purpose of amendment 110 is to insert a definition of "operational task" into the interpretation section for part 3 of the bill. It aims to define an "operational task" for an employee of a relevant authority in relation to carrying out designated functions as set out in section 8, which is on firefighting, in section 9, which is on road traffic accidents, and in an order under section 10, which is on additional functions. The associated amendment 111 aims to limit the exclusion of employees of relevant authorities from the definition of relevant persons. If we agree to the amendment, the exclusion would be restricted to those undertaking operational tasks as defined in amendment 110. The effect would be to ensure that the fire safety duties that are owed to relevant persons will also be owed to employees of relevant authorities who are not undertaking operational tasks as defined.

The amendments were lodged to ensure that firefighters who are legitimately on premises in pursuit of fire authority duties that are not connected with firefighting—such as operational intelligence collecting, giving advice and conducting fire safety inspections—will not be excluded from protection. The effect of the two amendments would be to restrict the categories of persons who are excluded from the definition of a "relevant person" to those actively undertaking operational tasks. I wanted to clear up the point that was made by the FBU down south and by the Chief Fire Officers Association.

I move amendment 110.

Bill Butler is right to say that the issue was first raised by the Fire Brigades Union and by the Chief Fire Officers Association. Amendments 110 and 111 are sensible and they extend necessary protection to employees of relevant authorities who had been unintentionally—I stress, unintentionally—excluded from the definition of a "relevant person".

So they were missed out and they are now being included.

The sense of the amendments is compelling and I hope that members agree. I press my amendment.

Amendment 110 agreed to.

Amendment 111 moved—[Bill Butler]—and agreed to.

Amendments 95 and 96 moved—[Hugh Henry]—and agreed to.

Section 73, as amended, agreed to.

Sections 74 to 77 agreed to.

Section 78—Abolition of Scottish Central Fire Brigades Advisory Council

Amendment 112, in the name of Colin Fox, is in a group on its own.

I notice that the minister has finally accepted amendments from a member of a committee so I hope that we are on a roll.

Amendment 112 seeks to ensure that the replacement for the current Scottish Central Fire Brigades Advisory Council, which the minister has assured the committee and the Parliament will be a more dynamic body, has teeth by having statutory weight and recognition and by retaining the direct involvement of the minister.

This area of the committee's scrutiny has been a curious one. We heard evidence that the SCFBAC was set up 50 years ago and that all the players in the fire service are represented. We found that few people were able to point to one piece of good work that the SCFBAC has produced. I am sure that the committee recognises that the public probably takes a dim view of the picture painted, of a body that involves many professionals in a one-day meeting, three times a year and which has a relatively poor output.

Nonetheless, as things stand, the minister is under a statutory obligation to consult the relevant fire authorities and fire employees and, in turn, to advise Parliament. The bill proposes many additional powers for the minister in areas such as fire safety, yet it reduces the obligation on the minister to ensure that the necessary expertise is available to advise him on operational requirements. In the light of the promise of a more dynamic replacement for the current advisory council, which, it seems, will have less involvement from the minister, who will have fewer powers, amendment 112 seeks to ensure that the replacement body has greater teeth, can fully advise the minister and involves him in its functions. The promise of a more dynamic replacement suggests more teeth; let us hope that it is not a hollow promise.

I move amendment 112.

I accept what the minister has said, in particular in the stage 1 debate, but the bill as it stands leaves what appears to be a bit of a vacuum. It proposes the abolition of the advisory council but gives no real idea of what, if anything, will replace it.

Amendment 112 is not unreasonable in that it would provide for the setting up of a replacement body by regulations. I expressed my views on the matter in the stage 1 debate. I will shed no tears at the loss of the SCFBAC, but if we are to have a more modern, dynamic, flexible body along the lines that the minister described, it would be reasonable for that body to be placed on a statutory footing. Amendment 112 would allow that to happen. If the minister intends to oppose the amendment, I will be interested to hear his reasons.

When Colin Fox described the advisory council, I thought that he was making the case for complete abolition rather than for the retention in statute of such a council. As Stewart Maxwell indicated, I have made it clear that we acknowledge the continuing need for an advisory council. However, we want a council that is appropriate to modern circumstances. We are consulting on the most appropriate structure for the future and the consultation period will not conclude until early March. We are talking to the relevant stakeholders and to anyone who has an interest in the fire service, to ascertain their views on how an advisory body should operate. As I have explained, I am not convinced that the establishment in statute of such a body is the right way forward. That approach would be too restrictive and would not allow for change to happen quickly or easily, if change were to be required as circumstances alter. Stewart Maxwell said that he would shed no tears at the disappearance of the SCFBAC, but he hankers for a body to be set up in statute. That is a bit of a contradiction.

Setting up an advisory body to consider improvements to a service and advise the minister should not include making in statute provisions in relation to the minister or to the minister chairing the body. The advisory body should draw on the range of experience, expertise and interest that is available throughout the country, so that it can come to informed, educated opinions and put those opinions to the minister for careful consideration. It would not be right or necessary for the legislation to specify the membership, the remit or the frequency of meetings of the body. A more flexible way of operating would enable the widest range of opinion to be involved. The advisory body should not be used as a substitute for other negotiating mechanisms, as can happen. There are appropriate ways of negotiating.

It is appropriate that there should be a body that can reflect on the changes that are being made and on future needs. The best approach would be to set up a body that can adapt and evolve, and I worry that to place such a body on a statutory footing would introduce rigidity to the system that would be unhelpful in future. I have heard nothing that changes my opinion on the matter. I disagree with Colin Fox. I look forward to hearing the conclusions of the current consultation and I am sure that we will be able to move forward with a proposal that is more reasonable and more relevant to the period that we are entering.

The minister accepted that we are committed to setting up a dynamic replacement for the SCFBAC. The abolition of the SCFBAC is a given; we must consider its replacement. The minister referred to the consultation that is going on, but the consultation might conclude that the most appropriate and modern approach would be to ensure that professional expertise can be brought to and can demand the minister's attention and can make suggestions. I am sure that the minister does not want to pre-empt the consultation's conclusions, but if that suggestion comes out of the consultation, some of his points might be negated.

The minister will notice that the amendment contains nothing about the membership, the frequency of meetings, agendas and so on. It pertains to the principles and the purpose of the body. I will press the amendment, the remarks of the minister notwithstanding.

The question is, that amendment 112 be agreed to. Are we agreed?

No.

There will be a division.

For

Fox, Colin (Lothians) (SSP)
Maxwell, Mr Stewart (West of Scotland) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Macmillan, Maureen (Highlands and Islands) (Lab)
Pringle, Mike (Edinburgh South) (LD)

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 112 disagreed to.

Sections 78 and 79 agreed to.

After section 79

Amendment 19 moved—[Hugh Henry]—and agreed to.

Section 80 agreed to.

Section 81—Orders and regulations

Amendments 20 and 97 moved—[Hugh Henry]—and agreed to.

Section 81, as amended, agreed to.

Section 82 agreed to.

Schedule 3

MINOR AND CONSEQUENTIAL AMENDMENTS

Amendment 98, in the name of the minister, is grouped with amendments 99 to 107.

These amendments add entries to schedule 3 to the bill, which makes minor and consequential amendments to legislation. The amendments will replace references in statutes to "fire authorities", "fire brigades" and to joint fire boards and other terms that are used in the Fire Services Act 1947. It will no longer be appropriate to use those references once the Fire Services Act 1947 is repealed and the bill comes into force. Therefore, it is necessary to replace those terms with reference to the updated terminology that is used in the bill.

Amendment 101 will make an amendment to section 22(9) of the Local Government in Scotland Act 2003, to make that provision subject to section 15(3) of the bill. Section 22(9) of the 2003 act provides that a local authority cannot impose reasonable charges for fighting fire as part of its remit to advance well-being—I stress that point. The amendment is necessary to ensure that the limitation on a local authority will be subject to the power of a relevant authority to charge for extinguishing fire and protecting life and property when action is taken at sea, which we discussed last week.

Amendment 102 makes a technical adjustment to the text of paragraph 4 of schedule 3 to the bill, which amends section 61 of the Local Government in Scotland Act 2003. The amendment is consequential to amendment 101, which will make further provisions in respect of the Local Government in Scotland Act 2003.

Schedule 4 to the bill will repeal the Fire Services Act 1947. Amendments 103 to 107 make consequential amendments to legislation to tidy up the statute book by removing references to or amendments that have been made to the Fire Services Act 1947.

I move amendment 98.

Amendment 98 agreed to.

Amendments 99 to 102 and 21 moved—[Hugh Henry]—and agreed to.

Schedule 3, as amended, agreed to.

Schedule 4

Repeals

Amendments 103 to 107 moved—[Hugh Henry]—and agreed to.

Schedule 4, as amended, agreed to.

Sections 83 and 84 agreed to.

Long title

Amendment 108 moved—[Hugh Henry]—and agreed to.

Long title, as amended, agreed to.

That ends a long session. It also ends stage 2 consideration of the bill. I thank members, the minister and the minister's team for their co-operation in the process.

I propose that we have a comfort break of five minutes.

Meeting suspended.

On resuming—