Plenary, 23 Feb 2005

Meeting date: Wednesday, February 23, 2005

Official Report 446KB pdf

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Fire (Scotland) Bill: Stage 3

The next item of business is stage 3 of the Fire (Scotland) Bill. Members should have the bill as amended at stage 2, the marshalled list of amendments that I have selected for debate and the groupings.

I will allow an extended voting period of two minutes for the first division. Thereafter, I will allow a voting period of one minute for the first division after a debate on a group. All other divisions will be 30 seconds long.

Section 11—Emergency directions

Amendment 1, in the name of the minister, is grouped with amendments 2, 7, 8, 14, 18, 19, 30, 24, 25 and 26.

The amendments in the group are minor and consequential. Amendments 1, 2, 7 and 8 are aimed at improving the grammar and drafting of sections 11, 18 and 35A. Amendment 14 will correct an oversight from stage 2, whereby section 52 was not included in the group of amendments that replaced the words

"in the event of fire"

with

"safety … in respect of harm caused by fire".

Amendments 18, 19 and 30 are minor amendments that will correct references in section 65 to part I of the Health and Safety at Work etc Act 1974 to ensure that orders as well as regulations that are made under part I of the 1974 act are preserved if an enforcing authority under the bill is also an enforcing authority within the meaning of the 1974 act.

Amendments 24, 25 and 26 will amend schedule 3 and make minor and consequential amendments to other legislation. The amendments will replace references in statute to "fire authorities", "fire brigades", "joint fire boards" and other terms that are used in the Fire Services Act 1947. It will no longer be appropriate to use such references when the 1947 act has been repealed and the proposed legislation comes into force. It is therefore necessary that we replace those terms with the updated terminology that the bill uses.

I move amendment 1.

I agree with the minister that the amendments are minor and consequential—we have no problem with them. However, I seek clarification on one matter. Amendment 24 will insert new section 54(4)(b) into the Civic Government (Scotland) Act 1982. The new section refers to the

"fire-fighting functions of any other employer of fire-fighters".

Would the provision include, for example, BAA Ltd? Will he clarify to which other employers of firefighters the provision refers?

I do not have access to the full details, but I will clarify the matter for Stewart Maxwell.

Amendment 1 agreed to.

Section 18—Agreements in relation to water supply

Amendment 2 moved—[Hugh Henry]—and agreed to.

After section 20

Amendment 3, in the name of the minister, is in a group on its own.

In its stage 1 report, the Justice 2 Committee considered that there was merit in Scottish Water's having responsibility for maintaining fire hydrants, but wanted clarification of the financial implications for the fire service were such a transfer of responsibility to be effected. The committee drew my attention to evidence that was taken and invited me to consider the issue further. I am sympathetic to our trying to do what we can to rebalance the costs that are associated with maintenance of hydrants.

Mike Pringle lodged two amendments at stage 2 that would have transferred all the costs to Scottish Water, but he withdrew the amendments to enable me to consider further the available options. Ultimately, we are talking about shifting costs. We did not expressly consult on the issue when we drew up the legislative proposals, so it would be wrong to place new burdens on organisations without the necessary prior consultation. I see no benefit in simply moving costs between two public services—fire services and water services. Such an approach would have no positive effect and would raise questions about funding if, for example, there were a transfer of funds from fire grant-aided expenditure allocation or if bills for all water customers were allowed to increase to meet the new costs, which would be contrary to the principle that the charges that users face should generally reflect the costs that they impose on the system.

Amendment 3 therefore represents a sensible and flexible solution. It will allow the implications of any policy on hydrant costs to be fully considered. Thereafter it will allow—which is important—consultation of all the relevant and interested parties, in order to identify whether a change in the existing legal provisions is necessary. For example, in the case of new housing or new industrial or commercial developments, we would consult on whether there was support for a way of requiring the developer—on newly developed or on redeveloped sites—to meet the costs of installing hydrants.

I move amendment 3.

I support amendment 3 and I acknowledge the minister's comments. Difficulties arose because the possible transfer of responsibility for fire hydrants between the fire authorities and Scottish Water was not included in the original consultation. I am disappointed that the issue was not dealt with then.

The minister says that we will consider the issue in the future, which is a positive step. There are many logical reasons why fire hydrants should be transferred between fire authorities and Scottish Water. Those reasons might come up in the debate later on; I am sure that they will come up during any consultation by the minister of the various authorities.

The details should be left to ministerial powers, as amendment 3 suggests. The circumstances of defraying of costs to other bodies will be largely administrative. Liabilities will change over time and it is perfectly reasonable to put them within ministerial powers.

Amendment 3 agreed to.

Section 23—Powers of authorised employees in relation to emergencies

Amendment 4, in the name if the minister, is grouped with amendments 5 and 6.

Amendments 4, 5 and 6 are minor tidying amendments that will remove unnecessary wording from the powers in sections 23 and 24 and will bring those provisions into line with section 24(2)(a) and section 57, in which similar powers are conferred. The meaning of the affected subsections is unchanged.

I move amendment 4.

I wish to raise a minor point in relation to section 23(2)(b). The amendments in this group will affect section 23(2)(a) and section 23(2)(c) by removal of the words

"without the consent of the owner"

and

"without the consent of its owner"

respectively. However, in section 23(2)(b), the words

"without the consent of its owner"

have been left in.

I understand that that was done because there was not absolute clarity that force would be used on the occasions that are covered by section 23(2)(b). Will the minister confirm that that is the reason? I feel that it would have been better for clarity either to leave the words in all three paragraphs, or to take them out of all three.

Stewart Maxwell has, in essence, described why we have done what we have done. We think that it made sense for us to make the proposals in the three amendments.

Amendment 4 agreed to.

Amendment 5 moved—[Hugh Henry]—and agreed to.

Section 24—Powers of constables in relation to fires

Amendment 6 moved—[Hugh Henry]—and agreed to.

Section 35A—Amendment of Emergency Workers (Scotland) Act 2005

Amendments 7 and 8 moved—[Hugh Henry]—and agreed to.

Section 35B—Assaulting or impeding employees discharging certain functions

Amendment 9, in the name of the minister, is grouped with amendments 10 to 13.

Amendments 9, 10, 11, 12 and 13 address an overlap in the bill in section 35B. In that section, "enforcing" authorities are identified as being separate entities to "relevant" authorities. In fact, an enforcing authority can also be a relevant authority. Amendments 9, 10 and 11 will therefore remove the references to "enforcing" authorities from section 35B. The intention of section 35B is to deal with offences that may be committed against employees of relevant authorities. Reference to relevant authorities is therefore, I believe, adequate.

Amendments 12 and 13 will improve the references in section 35B(2) to persons operating under arrangements made under section 34. Section 33 is concerned with those who assist relevant authorities; section 34, however, is concerned with those who carry out the functions of relevant authorities. The amendments will therefore remove the existing reference to section 34 and insert a new subsection that will cover persons carrying out functions under section 34 arrangements.

I move amendment 9.

Amendment 9 agreed to.

Amendments 10 to 13 moved—[Hugh Henry]—and agreed to.

Section 45—Statutory negotiation arrangements

Amendment 27, in the name of Bill Butler, is grouped with amendment 28.

Amendments 27 and 28, which are in my name, concern trade union involvement in statutory negotiating arrangements.

During the stage 1 evidence sessions and in the stage 1 debate, the view was expressed by many of my colleagues on the Justice 2 Committee and by members in general that the bill should contain an express duty to consult recognised trade unions. However, as members will know, union recognition is a matter for employers. The fact that a union sits on a national negotiating body does not mean that each employer that is represented on the national body recognises that union. Conversely, a union can be recognised by an employer but have no seat on a national negotiating body.

During stage 2, committee members were right to continue to express concern on the matter; indeed, my committee colleague Colin Fox lodged seven amendments to sections 45 and 46. Following the defeat of his first amendment, Colin Fox did not move his six subsequent amendments, but I recall that he expressed the hope that "a middle way" could be found at stage 3. As a Labour Co-operative MSP, I support the politics of a progressive third way and I hope that my two amendments will provide that acceptable middle way.

Sections 45 and 46 provide that statutory negotiation bodies and relevant negotiation bodies shall include

"persons representing the interests of some or all employees of relevant authorities".

That definition includes representatives of trade unions who represent employees of relevant authorities. However, amendments 27 and 28 will make it clear on the face of the bill that sections 45 and 46 enable inclusion in the statutory negotiation bodies and the relevant negotiation bodies of representatives of trade unions

"whose membership consists of or includes employees of relevant authorities."

I stress that my amendments would not exclude any trade unions or representative bodies, such as bodies that had not previously been recognised for negotiating purposes.

I hope that the Executive will accept my amendments and that Parliament will support them. I believe that they address concerns that members and trade union representatives expressed during earlier stages of the bill's consideration and they have been lodged for the avoidance of doubt.

I move amendment 27.

I support all the comments that Bill Butler made on amendments 27 and 28—

Including his remarks about a third way?

I agree with all his comments except those about a third way, and I thank Ms Baillie for that reminder.

The Justice 2 Committee was concerned about the lack of official trade union recognition in the statutory negotiating arrangements—all members were worried because such an omission had occurred. I hope that I am correct in saying that, at the time, the minister stated that he felt that it was not necessary to have such recognition on the face of the bill, and that he sought to reassure the committee about that.

It is important that the trade unions be mentioned in sections 45 and 46, so the Scottish National Party will support amendments 27 and 28. I am glad that Bill Butler supports statutory arrangements and I hope that he will support statutory arrangements for other bodies when we come to deal with later amendments.

I call Duncan McNeil.

I am sorry; I must have pressed my button by mistake.

Mr McNeil's name was showing on my screen.

I welcome Bill Butler's amendments. Consultation with recognised trade unions was the subject of a great deal of discussion at stages 1 and 2, as Stewart Maxwell and Bill Butler both said. I listened with interest to the strong arguments that were made for the bill's having an express duty to include trade union representatives in any statutory negotiating bodies that are established under section 45(1).

I believe that amendments 27 and 28 will put it beyond doubt that sections 45 and 46 incorporate provisions that will enable any statutory negotiation body set up under section 45, or any relevant negotiation body as defined in section 46, to include representatives from trade unions

"whose membership consists of or includes employees of relevant authorities."

It was never our intention to exclude trade unions—we gave a commitment on that. However, Bill Butler's amendments 27 and 28 will give added advantage and I am happy to support them.

I welcome the Executive's support and that of the Scottish National Party. I welcome the minister's words and hope that all parties will see amendments 27 and 28 as being coherent and responsible and that they will support them.

Amendment 27 agreed to.

Section 46—Guidance

Amendment 28 moved—[Bill Butler]—and agreed to.

Section 49—Duties of employers to employees

Amendment 29, in the name of Colin Fox, is grouped with amendment 33.

I am glad that there has been consensus so far in the debate—I hope that it continues.

Amendment 29 seeks to draw on recent European health and safety legislation, which has repeatedly and rigorously tested the criterion that measures should be "reasonably practicable" and preferred instead to apply a much stiffer test on health and safety matters with regard to the duties of employers to their employees. European Union directives and regulations make it clear that, for example, with control of or handling of substances that are hazardous to health, or in respect of manual handling practices, a risk assessment must be carried out and a calculation or computation made of the perceived dangers therein. The legislation makes it clear that, after a health and safety calculation has been made, it is insufficient for precautions to be ruled out on the ground of cost as measured against low risk. The European directives overrule the economic-test approach in favour of a far higher standard of safety assessment.

Amendment 29 would delete the discredited phrase "reasonably practicable" from the bill. Mr Snedden, the head of the fire services division of the Justice Department was, in a letter of 10 February to the Justice 2 Committee, at pains to explain the terms of the debate at greater length. He pointed out that only one instance of the phrase "reasonably practicable" remains in the bill, which, I believe, supports my point. Mr Snedden reminded us that

"Scottish Ministers are required to act compatibly with ECHR when making regulations that impose such requirements or prohibitions."

However, in considering what is reasonably practicable, the expense of safety measures is balanced against the magnitude of the risk.

Amendment 29 is necessary to ensure that the bill is EU compliant and that employers provide their employees with the higher standard of health and safety cover. Amendment 33 is consequential on amendment 29.

I move amendment 29.

I note Colin Fox's point about achieving consensus, which can often be helpful. In the spirit of consensus, perhaps he will reflect on the fact that his suggestion received no support from members at stage 2.

Colin Fox says that the concept of being reasonable is discredited—I do not know what that says about Colin Fox's thinking process, but the word "reasonably" is important in the bill. Mr Fox questions whether the bill is EU compliant but, as members know, we could not propose legislation that was not compliant. We have met our obligations. The bill is not, as Colin Fox suggests, in contradiction of any European legislation. I have put it on the record a number of times, and I will do so again today, that we are content that the approach that is adopted in the bill will correctly implement the high standards that are placed on employers in respect of workers' health and safety, as set out in the EU framework directive. I repeat that the bill is within the Parliament's legislative competence.

Part 3 reflects the duty that is placed on employers in relation to other aspects of health and safety at work in the Health and Safety at Work etc Act 1974, which the United Kingdom regards as the legislation that implements the 1989 European Council directive in that regard.

There are important reasons why amendment 29 should not be agreed to. The Executive does not have difficulty with the proposition that employers should be required to apply the strictest possible standards to the safety of their employees in this area. The United Kingdom's record on health and safety at work is among the best in Europe, but amendment 29 goes too far in that it would impose an unfair burden on employers. If the amendment were agreed to, employers would be required to take measures where it was practical to do so, but with no assessment of whether those measures were reasonable in the circumstances. If employers were unable to conduct some sort of balancing exercises against countervailing circumstances, that could in some cases lead to absurd results. Employers could be required to take extra steps even if they were manifestly disproportionate to the risk. I accept that the matter is difficult, but I strongly believe that the bill strikes the right balance between the rights and the responsibilities of employers and the paramount safety of their employees. The Executive therefore does not support amendments 29 and 33.

It is my intention to press amendment 29. The minister says that he does not wish to place an unfair burden on employers. The Executive has never shown a tendency to put unfair burdens on employers—it has put very few burdens on them.

As the minister knows full well, the phrase "reasonably practicable" that he tries to trivialise has been tested repeatedly in European Union legislation and has failed those tests on economic grounds. All the other references to "reasonably practicable" in the bill as it was introduced have been omitted. If the minister is on the record as saying that he wants the highest standards to be protected, he is duty bound to support amendment 29.

The question is, that amendment 29 be agreed to. Are we agreed?

No.

There will be a division.

For

Byrne, Ms Rosemary (South of Scotland) (SSP)
Curran, Frances (West of Scotland) (SSP)
Fox, Colin (Lothians) (SSP)
Leckie, Carolyn (Central Scotland) (SSP)
Sheridan, Tommy (Glasgow) (SSP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)

Against

Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Wallace, Mr Jim (Orkney) (LD)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

Abstentions

Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Harvie, Patrick (Glasgow) (Green)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)

The result of the division is: For 6, Against 90, Abstentions 5.

Amendment 29 disagreed to.

Section 52—Duties of employees

Amendment 14 moved—[Hugh Henry]—and agreed to.

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

Amendment 15, in the name of the minister, is in a group on its own.

Amendment 15 ensures that regulations that are made under section 54(1) can allow persons with fire safety duties in respect of relevant premises to enter into arrangements with owners or occupiers of other parts of the building in which their relevant premises are located. The amendment will enable co-operation and co-ordination on fire safety matters among occupiers and owners of a multiple-occupied building where perhaps only part of the building is defined as relevant premises. It reflects the whole-building approach that was provided for in the Fire Precautions Act 1971 and which will be repealed by the bill. Such an approach would, for example, enable maintenance arrangements that are made under the bill to cover a system or precaution as a whole, not only those parts of it that are located in relevant premises.

I move amendment 15.

Amendment 15 agreed to.

Section 56—Enforcing authorities

Amendment 16, in the name of the minister, is in a group on its own.

Amendment 16 allows relevant authorities to enter into arrangements with a person prescribed in regulations to carry out such part 3 functions of the authority as specified. The exercise of the power would enable arrangements to be made with prescribed persons in a similar manner to arrangements that can be made under section 56(5), which is limited to the making of arrangements with the Health and Safety Commission. We intend to exercise the power to prescribe the proposed new Office of Rail Regulation as such a person.

I move amendment 16.

I ask the minister to confirm the limits of the amendment. The SNP has some concerns about the amendment, as, on the surface, it appears to open up the possible definition of an enforcing authority from only the HSC to the HSC and anybody else that ministers decide. I ask the minister to confirm what organisations he has in mind. He mentioned the Office of Rail Regulation, but are we talking about prescribing in regulations organisations that are like the HSC? I ask him therefore to confirm that the amendment does not introduce a wide-open power that could be used to identify anybody as an enforcing authority.

The exercise of the power in amendment 16 would mirror the exercise of the power in section 56(5), under which the relevant authority

"may make arrangements with the Health and Safety Commission"

for specified functions

"to be carried out (with or without payment) on its behalf by the Health and Safety Executive in relation to"

specified workplaces. We would seek to use the powers within those parameters and if anything moved in a direction that we have not described today, I would inform the Parliament of that through the Justice 2 Committee. Our intent is specific.

Amendment 16 agreed to.

Section 60—Alterations notices

Amendment 17, in the name of the minister, is in a group on its own.

Amendment 17 sets out a number of requirements that an enforcing authority may impose on a person in an alterations notice. They include: the keeping of records on the assessment of risk; the recording of arrangements that are made for the planning, monitoring and review of fire safety measures; and, when notifying the enforcing authority of a proposed change to fire safety measures, the provision of a copy of the assessment and a summary of the changes proposed. The amendment strengthens the provisions on alterations notices and clarifies the requirements that can be placed on persons in such notices.

I move amendment 17.

Amendment 17 agreed to.

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

Amendments 18, 19 and 30 moved—[Hugh Henry]—and agreed to.

Section 67—Offences

Amendment 20, in the name of the minister, is grouped with amendment 21.

Amendments 20 and 21 extend the protection that is afforded to enforcement officers in the carrying out of their functions under part 3 of the bill to those who accompany and assist them. The amendments insert a new offence and penalty provision that will protect those whom an enforcement officer takes on to premises for the purposes of assisting the officer in the carrying out of fire safety functions.

I move amendment 20.

I am glad to see amendment 20. There had clearly been a potential loophole in that, although an enforcing officer would have been protected and it would have been an offence to obstruct them intentionally, somebody accompanying that enforcing officer to assist them in carrying out their duties would not have been protected. I am glad that the Executive is closing that loophole. It would have been a rather strange situation if the enforcing officer was protected but the person accompanying them was not. I am glad to accept the amendment on behalf of the SNP.

Amendments 20 and 21 more than adequately deal with the concerns that were raised by the Subordinate Legislation Committee on section 67. The committee is pleased that these two amendments, as well as other amendments that will follow later in the bill, go further than the Subordinate Legislation Committee suggested, and the policy is now clearly stated in the bill.

I welcome the positive comments made by both Stewart Maxwell and Sylvia Jackson, who is right to refer to amendments that we will be coming to shortly as well as to amendments 20 and 21, through which we have gone beyond what the Subordinate Legislation Committee wanted us to do. I hope that Parliament finds that acceptable.

Amendment 20 agreed to.

Amendment 21 moved—[Hugh Henry]—and agreed to.

The next group is on fire safety and concerns defences, the burden of proof and other regulation-making powers. Amendment 31 is grouped with amendments 32, 34, 22, 36 and 23.

The Executive amendments in this group respond to the concerns referred to by Sylvia Jackson, which were raised by the Subordinate Legislation Committee following its consideration of the supplementary delegated powers memorandum after stage 2. Amendments 22 and 23 make the powers at sections 55(2)(c) and 72(7) subject to the affirmative procedure, as the committee recommended.

The Subordinate Legislation Committee was also concerned that the powers at section 67, subsections (9A), (11) and (12), were too wide. The committee proposed that those powers should be linked and that the powers under subsections (11) and (12) should be made subject to the affirmative procedure. On further reflection, we considered that the policy can be achieved in a different manner, involving the removal of the delegated powers and a clarification of situations in which due diligence defences will not apply and of those in which a reverse burden of proof will apply.

We concluded that, in light of the Subordinate Legislation Committee's recommendations and comments, it would be better to make the policy intention very clear in the bill rather than in regulations, as we had intended. Accordingly, amendments 31 and 32 remove the power under subsection (9A) and include in the bill provisions to make clear the circumstances in which the defence of due diligence will be removed.

Amendment 34 replaces subsections (11) and (12) with a provision creating an automatic reverse burden of proof whenever the regulations under sections 53 or 54 impose

"so far as is practicable"

or

"so far as is reasonably practicable",

a duty or requirement resulting in an offence being committed under section 67(3).

I am aware that the timing of the recent recess brought added pressures to bear on the Subordinate Legislation Committee's consideration of the bill as amended at stage 2 and that amendment 36 has been lodged on behalf of the committee on a contingency basis. I believe that the Executive's amendments, which remove the relevant powers, narrow the range of potential situations in which the disapplication of the due diligence defence and the reverse burden of proof can apply. The amendments clearly display the link between the defence and the reverse burden of proof.

I hope that the measures are satisfactory to Sylvia Jackson and the Subordinate Legislation Committee and that, having listened to the detail of our response, the committee's members are satisfied that our amendments make amendment 36 redundant.

I move amendment 31.

We are more than adequately pleased with what the minister has recommended. The Executive's amendments indeed make the Subordinate Legislation Committee's amendment 36 redundant.

I welcome the minister's comments and commend the work of the Subordinate Legislation Committee in this area. The committee, of which I am a member, had a number of concerns, particularly in relation to section 67, subsections (9A), (11) and (12), and the other provisions that the minister mentioned, which prompted amendment 36. I agree that the Executive has made that amendment redundant, and I am pleased that it has gone further and has included the provisions in the bill itself. My only concern is that the Executive will make the Subordinate Legislation Committee redundant, too.

I am afraid that that is outwith my competence, Presiding Officer.

What is within our competence is putting the question. The question is, that amendment 31 be agreed to.

Amendment 31 agreed to.

Amendment 32 moved—[Hugh Henry]—and agreed to.

Amendment 33 not moved.

Amendment 34 moved—[Hugh Henry]—and agreed to.

Section 78—Abolition of Scottish Central Fire Brigades Advisory Council

Amendment 35, in the name of Colin Fox, is in a group on its own.

Amendment 35 seeks to ensure that the replacement for the Scottish Central Fire Brigades Advisory Council has the requisite powers to advise the Parliament and demand the direct involvement of the minister. The SCFBAC has played precisely that role since 1947, and the minister has said on the record that he wants the new body to be more dynamic than the body that it will replace. Amendment 35 would provide for the establishment of just such a reputable and dynamic body.

Extra powers are afforded to the minister under the bill, yet the body that has existed in statute since 1947 to advise ministers on strategic matters is to be replaced with a much less authoritative body that will have no teeth and will not be required to have input from, or direct access to, the minister. The bill proposes many new and additional powers for the minister in areas such as fire safety, yet it reduces the requirement for him to have to hand the necessary expertise and advice on the operational requirements that will be placed upon him.

I recognise that a consultation is taking place on the replacement of the SCFBAC but my amendment seeks to ensure that the replacement body that is agreed to—whoever sits on it, whatever its agenda and approach and however frequently it meets—is meaningful and not a toothless tiger that the minister may ignore if he so chooses. My amendment seeks to set parameters for the replacement advisory body to work within. A non-statutory body in which the minister plays no part would be a diminution of what we have at present and would be much less able to advise the Parliament on fire safety.

I move amendment 35.

I am sure that the minister is aware of my opinion on the matter as we have discussed it many times. It is clear that the Scottish Central Fire Brigades Advisory Council is in need of updating and perhaps even modernising, and perhaps it is best to abolish it and start with a clean sheet. However, the bill states only that the council will be abolished. It is silent on any possible replacement. I believe that it is important to replace the SCFBAC with a new body, and provision to do so should be in the bill. In other words, there should be a new statutory body to replace a statutory body that is now long past its sell-by date.

Colin Fox's amendment 35 is not prescriptive. It does not determine the size or make-up of the body and will not cause the Executive any problems. It should give ministers wide flexibility. The important point is that the new body should be statutory; it should have the power and the teeth to deal with the issues that it faces and should be able to talk to the minister face to face. Therefore, we will support amendment 35.

As members have indicated, the matter was discussed extensively at stages 1 and 2. It is significant that at stage 2 the committee voted against an identical amendment. As Colin Fox is aware, the Executive is consulting on the most appropriate advisory structure for the future and the consultation period will not conclude until early March. In the consultation paper we make it clear that we do not intend to place the advisory structure on the same statutory footing as that of the Scottish Central Fire Brigades Advisory Council. Our experience is that, contrary to Colin Fox's assertions, the council is too restrictive and inflexible and it does not allow for change quickly or easily.

Colin Fox suggested that any new body will be toothless. I am not sure what he thinks that the current body has in the way of powers, nor do I think that having an advisory body that requires the minister to chair it is necessarily capable of offering objective advice to the minister. I believe that there should be a body that is capable of giving advice to the minister. We want to consult on who should be on that body. We are open to considering what that body should discuss and how it should be constructed. Far from removing the necessary expertise—as was asserted—our proposals for the body would draw in the widest expertise to provide objective and adequate advice on fire matters in Scotland.

Colin Fox accused the Executive of not being specific in the bill, but his amendment is vague. It leaves open a variety of matters that would normally be addressed in establishing a body in legislation. The amendment specifies neither whom ministers should consult nor the circumstances in which advice must be given. Therefore, the amendment would provide no framework on which to hang the regulatory detail.

Our position is clear. We do not believe that we need to establish the advisory body on a statutory basis. Far from leaving us where we are in legislation, Colin Fox's amendment would cause more problems than it seeks to solve. I hope that he will reflect on that and withdraw his amendment. If not, I hope that the Parliament will reject his proposal.

The minister apparently wants to have it both ways. We have a consultation, which will draw out the detail, and the amendment would make it clear that that consultation should take place within the parameters that the body will be statutory and that it is necessary not to ignore the conclusions of the people with expertise whom the minister talked about.

The new body needs to protect the essence of the advisory council that was established 50 years ago. As the minister knows, I welcome the consultation, but it is important that the Parliament send the message that the consultation must ensure that a statutory body replaces the advisory council and that the Parliament gives that body credibility. I will press the amendment.

The question is, that amendment 35 be agreed to. Are we agreed?

No.

There will be a division.

For

Adam, Brian (Aberdeen North) (SNP)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Byrne, Ms Rosemary (South of Scotland) (SSP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Frances (West of Scotland) (SSP)
Fabiani, Linda (Central Scotland) (SNP)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (North East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Margo (Lothians) (Ind)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Sheridan, Tommy (Glasgow) (SSP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
White, Ms Sandra (Glasgow) (SNP)

Against

Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)

The result of the division is: For 33, Against 70, Abstentions 0.

Amendment 35 disagreed to.

Section 81—Orders and regulations

Amendment 22 moved—[Hugh Henry]—and agreed to.

Amendment 36 not moved.

Amendment 23 moved—[Hugh Henry]—and agreed to.

Schedule 3

Minor and consequential amendments

Amendments 24 to 26 moved—[Hugh Henry]—and agreed to.

That ends our consideration of amendments.