Subordinate Legislation Committee, 21 Sep 2004

Meeting date: Tuesday, September 21, 2004

Official Report 134KB pdf

---

Delegated Powers Scrutiny

---

Fire (Scotland) Bill: Stage 1

Good morning and welcome to the 25th meeting in 2004 of the Subordinate Legislation Committee. Apologies have been received from Sylvia Jackson and Alasdair Morgan, who are in Stranraer with the Local Government and Transport Committee—they obviously get all the good trips away. Mike Pringle is somewhere else and Mr Tosh is coming through the door as I speak.

The first item is to consider the delegated powers in the Fire (Scotland) Bill at stage 1. There is a full report from our legal adviser. I intend simply to talk about the sections that have been flagged up as needing action. If members of the committee see something in other sections that should be mentioned, they should say so. I will concentrate only on the sections in which something has been flagged up.

Section 10, which is referred to on page 2 of the legal brief, gives the Scottish ministers a power, exercisable by order subject to negative procedure, to confer functions relating to emergencies on relevant authorities, which are defined as fire and rescue authorities and joint fire boards. The types of emergency in relation to which functions may be conferred are to be specified by order and will not include fire and road traffic accidents, which are dealt with elsewhere. The scope of the power is limited by the definition of "emergency".

The Executive's memorandum advises that the power is intended to allow a flexible response to the changing environment in which fire authorities operate and notes that a degree of flexibility is best provided by subordinate legislation.

Section 10 would allow an order to provide that an additional function is to be carried out by an authority outwith its own area. In that case the function would, by definition, be discharged in the area of another authority. We might wish to consider—I come at last to the point—whether it might be appropriate in those circumstances for the Scottish ministers to consult the fire and rescue authority in whose area the function is to be discharged. [Interruption.] The noise that the committee can hear is coming from my phone; it is on silent but still makes a lot of noise. I apologise to the committee.

To come back to the somewhat long-winded point that I was making, should we ask the Executive for its comments on whether it should consult in the way that we have outlined?

It is appropriate that the authority into whose area someone else is going should be consulted. That is common courtesy and it would allow folk to know where other people are and so forth. We should phrase our comments slightly more strongly and say that we consider it appropriate that authorities be consulted.

Rather than just asking the Executive why it is not doing that, we should say that we think that it should be doing it.

Yes.

I disagree. A degree of flexibility is required. I have a great deal of sympathy for the way that the Executive has drafted the provision. Authorities need to be able to respond quickly to a changing environment or changing circumstances. The borders between authorities, particularly fire authorities, are in effect artificial boundaries drawn on maps. It does not seem entirely inappropriate that things should be done in the way that the Executive proposes. In an ideal world we should always consult and come to negotiated agreements, but it is not unreasonable that authorities have the flexibility to act quickly. It would be to the detriment rather than to the advantage of the fire service if we enforced consultation that slowed things down.

When I read the brief, which was considerably more concise than the convener's introduction, I put a double tick next to paragraph 17. I agree with Christine May. I do not think that it is being suggested that there would have to be consultation before specific action was taken to assist another fire authority; directions cover those points. Section 10 relates more to where functions are planned. If functions are planned, it is appropriate that they should be the subject of consultation beforehand. Somebody doing something in an emergency would not consult.

Clearly emergency circumstances are covered. It is not a major point.

It is the broad view of the committee that we should ask the Executive about the provision and suggest that it should consider providing for consultation with authorities. Unless Stewart Maxwell feels strongly otherwise, that is what we will do.

That is fine.

The next section in which points arise—I will try to be a little more concise about this—is section 20, which deals with fire hydrants. Section 20 gives the Scottish ministers a power, exercisable by regulations subject to negative resolution, to provide for uniformity in fire hydrants provided by Scottish Water and in accompanying marks and so on. Should there be an express requirement for the Executive to consult Scottish Water before exercising the power, or do we not care?

As the legal brief points out, the section is not likely to apply to anyone else.

I cannot help feeling that it would not be the end of civilisation as we know it one way or the other.

I do not have strong feelings one way or the other about what we do.

Will we just let the point go?

I think so.

Section 36 requires the Scottish ministers to prepare a framework document setting out priorities and objectives and what not, which they have to review and revise as appropriate from time to time.

The only question that arises is whether section 36 makes it sufficiently clear that the framework document is to be published. We might also consider how the Scottish ministers will decide whether a revision to the framework document is significant and how the attention of interested persons will be drawn to revisions that the Scottish ministers do not feel are significant.

That is a reasonable question to ask people in the Executive, just to ensure that they have thought of it. They might come back and say, "We hadn't thought of that, thank you very much," or they might have an answer for us. We should ask the question.

Section 41 gives the Scottish ministers a power to make a "property and facilities order" when they consider it necessary to do so for public safety purposes. The order would give directions to the relevant authority about the use or disposal of property and facilities.

It is pointed out in paragraph 53 of the brief that occasions on which the directions are given could be somewhat politically sensitive. I take the point that this is not quite the same as the uniformity of fire hydrants; the provision has a more serious aspect from a public policy point of view. Do we think that negative resolution is really adequate in such circumstances?

I do not think that negative resolution is sufficient in this case. This is a highly contentious point about the use of appliances, property and other material that is currently used by the fire services. We only have to think back to the not too distant past and the firefighters' strike, when that was a contentious issue. It is reasonable for the Executive to go down the route that it has chosen, but it is also reasonable for the affirmative procedure to be used.

We have often made the same point. To be fair, when the committee has asked the Executive not to use the negative procedure for a power, it has by and large tended to comply. When the committee has had the feeling that the negative procedure is too weak, the Executive has, generally speaking, come back to us and said okay. If the committee thinks that we should make such a suggestion in this case, I would be up for that.

I think that we should do that.

I agree.

Section 42 gives Scottish Ministers a power, exercisable by order subject to negative resolution, to require a relevant authority to use and maintain specified equipment and services. That partly re-enacts an old statutory provision, which required consultation with a body that is now being abolished under the bill. Now there is to be no consultation requirement. It might be appropriate to ask the Executive whether it thinks that any relevant authority affected should be consulted before an order is made. That seems a reasonable suggestion to make, so I think that we should ask that question.

Members indicated agreement.

I have the impression that everyone agrees with me on that.

Section 54 gives the Scottish ministers a power, exercisable by regulations subject to negative resolution, to make provisions about fire safety in "relevant premises", which are defined elsewhere in the bill. I am not sure that I can put this as concisely as Murray Tosh would wish.

You have been doing well.

The legal advisers have some concern over section 54(2)(l), which creates criminal offences and specifies rules as to the burden of proof. The Executive tells us that that power is included so that the fire safety requirements contained in regulations will be backed up by an offence provision. Another section already provides that, if a person fails to comply with a requirement under certain other sections, that makes that person guilty of an offence.

According to one view, failure to comply with section 54 regulations is already a criminal offence in certain circumstances. The power under subsection (2)(l) is presumably meant to target situations in which the other regulations do not kick in because non-compliance does not go so far as to put a person at risk of death or serious injury in the event of fire. It is not clear from the drafting of subsection (2) how the offence provisions elsewhere in the bill would interact with the offence provisions that are contained in regulations made under subsection (2)(l).

It might be appropriate to ask the Executive about how that subsection has been drafted, in particular with regard to how the two offence provisions contained in regulations made under section 54 are meant to tie in with the other offence provisions. I hope that that explains the point. It seems a legitimate one to ask the Executive about. The Executive might have a sensible way of viewing the matter, but I think that we should ask about it.

I assume that the powers are in support of the transfer of responsibility from the fire service to ensure that firefighters can attend anywhere to the owner or occupier of the building to ensure that conditions in that building are such as to minimise the risk from fire. If risk assessments are being done all over the country, then it seems reasonable, if somebody refuses to comply, to be able to oblige them to do so.

It may well be that the Executive does not see any problem with the offence provisions under section 54 being doubled up. There is no harm in asking a question about that. If we are satisfied with the Executive's answer, so be it.

Section 72 defines "relevant premises" as those premises that are subject to the fire safety regime under part 3 of the bill. Various premises are excluded. We have no argument about the power, but any regulations would modify primary legislation, and we might at least wish to consider whether the affirmative resolution procedure ought to be used. I do not feel as strongly about the powers under section 72 as I did about some of the other powers, but we should suggest to the Executive that the affirmative procedure might be appropriate.

Section 75 is about inquiries. It gives Scottish ministers a power to make regulations, subject to the affirmative resolution procedure, in connection with inquiries to be held under the bill. We could ask the Executive whether it intends for inquiries under the bill to come under the scope of the Tribunals and Inquiries Act 1992. If so, the Scottish ministers might require to consult the Council on Tribunals before making regulations under section 75. There is a knock-on effect here. This seems a rather technical question, but it is the sort of thing that could turn out to be important. I think that we should ask about that.

Members indicated agreement.

Section 83 concerns commencement. Commencement orders made under this section are not subject to any parliamentary procedure. It is suggested that we should at least secure clarification about whether there is to be single-day commencement or a series of commencements. There can be no harm in asking about that.

I am sorry—I have missed out a point concerning section 54, on fire safety provisions. I covered the double offence provision, but I missed out another point. We might consider whether there should be a consultation requirement and a regulatory impact assessment. I am happy for us to ask about that too.

Members indicated agreement.

I am sorry that I missed that earlier; I had not realised that there was a further problem under that section.

We just assumed that that was read into our decision.