HC Deb 10 February 1964 vol 689 cc161-76

10.1 p.m.

Mr. Graham Page (Crosby)

I beg to move, That an humble Address be presented to Her Majesty, praying that the Building Standards (Scotland) Regulations 1963 (S.I., 1963, No. 1897), dated 22nd November, 1963, a copy of which was laid before this House on 11th December, be annulled. I move this Prayer supported, I think, by the members of the Select Committee on Statutory Instruments. The House will know that the Select Committee on Statutory Instruments is concerned not with the merits of the contents of Statutory Instruments, but with the form in which they are made, the procedure adopted, and the executive authority for the making of such Statutory Instruments. I do not put the Select Committee's function too high if I say that it is the watch-dog for the House and for the public in general of the exercise of the powers of delegated legislation. Its job is to see that the Executive does not overstep the legislative powers which the House has given to Government Departments. This is a case in which the Secretary of State for Scotland has overstepped those powers.

The Committee's Report in this matter is before the House and in the Appendix it is said that the Committee observed that Schedule 9 to these Regulations states that any reference in a specification in that Schedule to a British Standard, Code of Practice or other publication ' shall…be taken to be a reference to the latest edition for the time being of that British Standard, Code of Practice of other publication, including any published amendments there-to… It appeared to the Committee that an amendment of a publication referred to in the Schedule might therefore have the effect of amending the Schedule itself without any reference to Parliament.

Mr. Archie Manuel (Central Ayrshire)

Which page of the Schedule is the hon. Member quoting from?

Mr. Page

This is the Committee's reference to Schedule 9 on page 167. The Committee said: It appeared to the Committee that an Amendment of a publication referred to in the Schedule might therefore have the effect of amending the Schedule itself without any refer ence to Parliament. They doubted whether such a power should be given to a body outside Parliament and have therefore directed me to ask for a memorandum explaining this provision of the Schedule and giving the authority for it. I understand that, having had its attention drawn to the matter, the Scottish Department agreed that the words used were not very happy and said that it intended to amend them when the opportunity presented itself.

However, the matter cannot be so easily shrugged off or put right in that way. The power exercised, or purported to be exercised, by the Secretary of State for Scotland was undoubtedly ultra vires, and it should not become law pending some amendment of the Regulations. They should be taken back and redrafted. Secondly, these Regulations are a forerunner of the building Regulations for England and Wales, and I fear that if they are accepted they will become a wrong precedent for those Regulations

I think that I must justify my claim that this Statutory Instrument is in this respect ultra vires of the Minister. These Regulations are made in exercise of the power conferred on the Secretary of State for Scotland by the Building (Scotland) Act, 1959, and in particular by Sections 3, 6 and 24, and Schedule 4. Section 3(1) of that Act says: For the purposes of this Act the Secretary of State may…by regulations prescribe standards (expressed in terms of performance, types of material, methods of construction or otherwise) in relation to any or all of the matters specified in the Fourth Schedule to this Act, and such other matters relating to buildings as appear to him after consultation with the Building Standards Advisory Committee to be relevant to the said purposes. The Fourth Schedule sets out a number of matters in respect of which building standards regulations may be made; matters ranking from the preparation of building sites to the transmission of sound in the building, and many other matters. But going back to Section 3, which I have quoted, there are general descriptions of what the building standards regulations can do. They can prescribe standards which can reasonably be expected to be attained having regard to health, safety and convenience, and then, more specifically, subsection (3) gives the Secretary of State power to make building standards regulations, amongst other things, to provide for buildings constructed with materials of such types or by such methods of construction as may be specified in the regulations to be deemed to satisfy such standards as may be so specified in relation to those types of material, or, as the case may be, those methods of construction. I shall return to this phrase "deemed to satisfy" in a moment.

To refer to the other power under which the Secretary of State exercises his right to make these Regulations, I mention Section 24 which gives him a general power to make Regulations prescribing notices and other documents, and ends by saying that he has the power to make Regulations for any other thing which by this Act is required or authorised to be prescribed. It is Section 24 which provides the power to make these Regulations by Statutory Instrument subject to annulment in pursuance of a Resolution of either House of Parliament, and it is under that Section that this Prayer comes before the House.

The issue is whether the Secretary of State has exceeded his powers of delegated legislation by sub-delegating to some other body, namely, to the British Standards Institution. I do not think that I need labour the point that when Parliament gives a Minister power to legislate he must not surrender that power to some other body; that he must not delegate his power. It is he, the Minister—the Secretary of State for Scotland in this case—who must exercise that power to legislate.

I submit that in this case the Minister has delegated his powers. He has introduced into these Regulations the British Standards Institution in two different ways. First, by what I refer to as "required standards" and, secondly, by "deemed to satisfy" standards.

The following are examples of "required" standards. In about a dozen cases in these Regulations the British Standards are referred to. Non-combustible material has to be in accordance with B.S. 476: Part 1: 1953. A roof is defined by reference to B.S. 476: Part 3: 1958, and in this case to Amendment PD3276, February, 1959. In one case, namely, "wind load," it is defined not even by a British Standard but by a British Standard code of practice. As I understand it, that refers to a way of doing things and not to components of any material or any construction.

These standards must be achieved or one becomes liable to the penalties under the Act. The penalties under Section 19 generally speaking are, on summary conviction, a fine of £100 or £10 a day for a continuing offence. These standards are identified by date as being in existence at the time the Regulations are made. If they are amended thereafter there must be a new Statutory Instrument bringing into operation the Amendment or the new British Standard, importing it into the Regulations in that way by a new Statutory Instrument.

That may be very inconvenient, but until we alter the procedure of this House that is the way it has to be done. That is the way in which Parliament keeps some sort of control over delegated legislation of this sort. I am aware that there are precedents for this in other Statutory Instruments than the one with which I am now dealing.

This form of legislation by reference has many unsatisfactory aspects. British Standards are nowhere defined in these Regulations or, indeed, in the Statute which gives the Minister power to make these regulations. One reads in these Regulations just the letters and numbers—B.S. No. so and so. There is no definition anywhere of what they mean. Those who deal with the Regulations and have to know them are aware that they are the standards issued by the British Standards Institution—a very eminent body. But there is no official definition.

There is no official print of the British Standards. One can buy them from the British Standards Institution office in Park Street, W.1 and one can see them in about a hundred public libraries throughout the country, but they are not printed by H.M. Stationery Office, and this House has no responsibility for their printing. They are printed by Messrs. Waterlow, and if one wants to produce a British Standard in court one must produce an official from the Institution with the printer's proof copy, signed by members of the Council. There is nothing official about a British Standard as there is about the Queen's Printer's copy of a Statute or Statutory Instrument.

Imported into these Regulations are not only the British Standards themselves but also the codes of practice on how to carry out work rather than the actual components of any material. I submit that this is too vague to be a subject of law the breach of which brings heavy penalties.

If those difficulties arise with the "required" standards—those which are clearly identified by number and date in these Regulations—they arise all the more with what are referred to as the "deemed-to-satisfy" standards. In this Statutory Instrument, Regulation No. 11 states that certain processes of building set out in Schedule 9 shall be deemed to comply with the Regulations if those processes comply with the British Standards there enumerated.

If I may give an example to show what that means, I will take the first example of Schedule 9, which says, in effect, that the use of a material for a purpose and in a condition dealt with in a British Standard code of practice shall be deemed to satisfy Regulation 12 of these Regulations, if the material conforms to the relevant British Standard, if any, as to quality and it is selected, prepared and used in accordance with the recommendations of the British Standard Code of Practice, and having regard to the principles and recommendations contained in CP3: Chapter IX—. 'Durability'. It may be intelligible to some people. But where does the ordinary layman find all that? He can find it only by going to one of the public libraries listed in the British Standards Institution's Annual Report, or by buying a copy at the office of the Institution.

May I quote the first paragraph of Schedule 9 to which the Select Committee objected so strongly: Where any specification in this Schedule requires a material, component, designed, method of construction or operation to conform to a British standard or to be based on the recommendations of a British Standard Code of Practice or other publication, the reference in the specification to the British Standard Code of Practice or other publication shall, unless the context otherwise requires, be taken to be a reference to the latest addition for the time being of that British Standard, Code of Practice or other publication, including any published amendments thereto… Therefore, we are importing into this Statutory Instrument British Standards and codes of practice which may be issued in future. The Secretary of State for Scotland is purporting to give power to the British Standards Institution to legislate for the future, and any relevant British Standard which the Institution may publish is, by that Regulation, imported, by a sort of prospective legislation, into these Regulations, and therefore into the law.

I am anxious not to be taken as criticising or attacking the British Standards Institution. It does marvellous work. As hon. Members will know, it is the successor to the Engineering Standards Committee which was set up by the Institution of Civil Engineers in 1901. It received its Royal Charter in 1929 and operates under an amazing committee system of about 2,000 or 3,000 committees working out these standards under divisional councils and industrial standards committees as co-ordinating bodies. I understand that there were 5,537 committee meetings in the year 1962–63. I know that my hon. Friend will confirm that Government Departments take part in this committee work, as do local authorities and industries and commerce generally. By this means the Institution produced 340 British Standards in 1962–63.

It is true that the Institution receives a Government grant, in fact 75 per cent. of the contribution which it gets from industry. But that is no justification for turning it into a legislative body. We might as well say that because the Royal Society for the Prevention of Accidents receives a grant, it should be authorised to make the law about the construction of motor vehicles or about the material with which nightdresses are made in order to prevent accidents.

The Royal Society for the Prevention of Accidents is no more of a legislative body than the British Standards Institution ought to be. The British Standards Institution does very valuable work, but it is a voluntary body, not a Government Department, and it has no responsibility to this House. It is not a body which Parliament has as yet clothed with legislative powers. There may come a time perhaps when we ought to consider some special Parliamentary procedure to bring these British Standards into law as they are promulgated by the Institution, but as Parliamentary procedure stands at present that cannot be done although the Secretary of State for Scotland purports to do it in these Regulations. This Statutory Instrument is bad. It should be taken back and redrafted.

10.21 p.m.

Mr. John Robertson (Paisley)

I agree with the hon. Member for Crosby (Mr. Graham Page) that the Measure before us is extremely difficult, complicated, and of a very technical nature. It is difficult not only for the layman to understand, but also for people who are handling this kind of thing every day to understand. We have to recognise that this is the first departure from a previous condition in which standards were a matter for local authorities, or at least for a confined area of the country.

If these standards had been expressed in terms which Members of Parliament might have understood I dare say that there may not have been a great deal of value to the industry in discussing the kind of building standards which might have been desirable. Of course, the British Standards Institution did not draw up the Regulations. I understand from what I am able to discover that the Secretary of State for Scotland has consulted the people who will have to deal with this kind of thing in Scotland. I understand that the document has been compiled very largely on advice tendered to him by a very expert Committee. There is nothing sinister about the words "deemed to satisfy".

The standards are described and then methods of construction or of conditions are "deemed to satisfy" those standards. In one case the initial technical standard laid down was not good enough. The standard of sound insulation was not good enough, even though the methods which are "deemed to satisfy" the standards may have been carried out. In the draft Regulations for England and Wales this is expressed in a different way. The only provision laid down here is that the methods shall be "deemed to satisfy" the standards. In other words, the methods of sound insulation, instead of being expressed in decibels, are expressed in methods of construction of a wall or floor. This is all that happens under the Scottish Regulations. We do not need to be too worried about the words, but I would be worried about the standard because this has been a major difficulty in the building of local authority houses. I might take exception to the standard laid down for lifts in high flats. No one has ever thought of what might have to be done if someone had to be taken down from a high flat on a stretcher or if someone died on the twelfth floor. I do not know what would be done if the lift were only 4½ ft. square.

Among the other matters which need further scrutiny is the provision of windows. Even in the Committee which advised the Secretary of State there was some doubt whether a certain British Standard was adequate for the purpose. It was finally agreed that at least it laid down a uniform standard for the whole of Scotland.

It is very important to remember that the standards, in the main, are minimum standards. If, by the various methods at his disposal, the Secretary of State were to say that they were the maximum, it would be very unfortunate. This has been happening; it was not that the standard was just a minimum on which people could improve but that, particularly for local authority houses, it was the maximum beyond which they could not go. If this became the rule it would have an unfortunate result in what otherwise might be a step forward.

I cannot accept the view of the hon. Member for Crosby that the Secretary of State, in adopting the British Standard for any given part of the building, is delegating power. He is accepting that the Institution has examined the matter and has made certain recommendations and that they are satisfactory for him to adopt. It is a question not of the delegation of powers but of the adoption of certain standards from the work of another Committee.

I am also worried about the difference between these Regulations and the draft Regulations for England and Wales. I could never understand why it was considered that Scots had to live in houses or rooms considerably smaller than had people in England and Wales, or why Scots who moved to England or Wales were entitled to more accommodation than if they stayed in Scotland. I do not want to go into many figures. They are available in the Scottish Regulations. The size of living rooms and bedrooms is laid down, and we can go through the draft Regulations to see the equivalent standards for England and Wales.

There is a remarkable difference. Why? Are Scotsmen shorter or do they need less room to move than Englishmen or Welshmen? In fact, this is a political decision which has nothing to do with standards, and the Secretary of State should look at it again. It has to do with the cost of building houses in Scotland. No one has ever been able to explain why it costs 20 per cent. more to build a three-apartment house in Scotland than to build a three-bedroom house, which probably has four or five apartments, in England, and Wales. We should be concerned about this question of costs, but the solution does not lie in having lower standards of accommodation in Scotland than in England.

The Secretary of State should examine the method by which these jobs are given out, and contractors' ways of getting the job; he might then find out why the cost is so high. But he should not tackle the problem by laying down for Scotland lower standards of accommodation than there are for England and Wales.

When the Measure was being discussed, the Scottish Members were concerned that local authorities should retain a certain amount of power; that there should not be a uniform standard, but that local authorities should have some initiative for improving on the standard. The only thing in these Regulations that would prevent a local authority from improving the standard is the power of the Secretary of State to refuse permission for this or that design. Local authorities can provide accommodation, minimally, that is better than that laid down in the Regulations, but it would be tragic if, in laying down a minimum, they found the Secretary of State saying, "This is the most that can be done; otherwise more money will be absorbed than is available."

I do not share the fear of the hon. Member for Crosby. My fear is not that the standards are in themselves too rigid or that they will not do a useful job. They can do a useful job, but if the Scottish Office prescribes this as a maximum, it will be a bad day for Scottish house building.

10.32 p.m.

Mr. William Ross (Kilmarnock)

I can well remember when we passed the Measure that gave the Secretary of State power to produce these standards. It was gene rally welcomed by everyone in the House at the time, by everyone in Scotland and, more particularly, by those who wished that such standards had been in existence when their houses were built—we have all been faced with the problem of the person subjected to the wiles of the jerry-builder. We now have, or thought we had, a complete book of building regulations that would, in the future, if strictly applied, as we hoped they would be, safeguard people in respect of the quality of the building; in other words, we hoped that people might eventually get what they paid for.

It was, therefore, rather a blow to most of us to read the criticism of the Statutory Instruments Committee. On the face of it, to anyone who is familiar with the Regulations—and they are not ease to become familiar with—it might seem to be a rather quibbling point, but I am the last person ever to accuse the Statutory Instruments Committee of that. I have made many speeches on the subject of Statutory Instruments, and the powers given to Secretaries of State in fact, I am in process of doing it in Committees of this House at the moment.

We have always made it perfectly clear that when we give the power to a Minister to make regulations, that power should be explicitly, carefully and restrictively spelled out, so that there is no mistake; and that the people to whom they will apply are informed before the regulations are drawn up. We in this House have also been given the power to pray against regulations, and in certain cases, where the procedure is different, we have draft regulations before us. When we examine them, we see exactly how the Minister is behaving. On the whole, I think that these are excellent Regulations, and the only refuge of criticism is that the standards prescribed re minimum standards. The minimum, however, as my hon. Friend rightly points out, is lower than the minimum in England and Wales.

We cannot escape the point raised by the hon. Member for Crosby (Mr. Graham Page). It is there. It is right for the Minister to adopt existing standards which are known and can be known to us and be available to us if we want to translate these initials and figures into actual instructions. There is no quarrel at all with what the Minister has done there, but when, additionally, the Minister states that any future amendment of that standard shall be deemed to be a regulation, he goes beyond the powers that Parliament gave him.

I am interested to find out what the Secretary of State for Scotland intends to do about this. I know that the Committee sat for years to consider these matters. It spent a great deal of time and care on it. The Committee interviewed practically everyone there was to interview. The Committee thought that it had done a good job, and so did I until we had the bolt from the blue from the Select Committee on Statutory Instruments.

There is no doubt that this point should have been watched with care.

The words a reference to the Latest edition for the time being of that British Standard, Code of Practice or other publication, including any published amendment thereto… go much too far. No amendments have been made. We cannot presume to give force of law to standards which do not exist. This is the whole point—bearing in mind that there are penalties related to the standards.

I do not know how the Secretary of State will get out of this difficulty. At this stage we cannot amend these Regulations. We can only accept or reject them, but obviously there is this flaw, and I am sorry that the work of the Committee should have ended in this way because of a simple slip. I am sure that the Committee did not intend in any way to offend the powers of Parliament. At the same time, we must appreciate that this kind of thing should not happen.

In Schedule 10 on page 206, in the specifications laid down for no-fines concrete there are words in subsection (a), and repeated in subsection (b), which I find difficult to justify: Made from whinstone or gravel aggregate conforming where appropriate to B.S. 882…". It is difficult to see anything definite about that. "Where appropriate" hands over an unknown discretion to an unknown person. I do not know what the difference is between the two subsections where these words are used. As far as I can make out, they seem to be exactly the same. Someone with a little better eyesight than mine can work it out, but there again, in subsection (b), there is imported a discretion difficult to exercise and difficult to justify.

It is possible that the Government may find words to justify that, but I do not see how they can explain this business of asking us to pass Regulations which give the force of law to British Standards, a code of practice, or, indeed, civil engineering practice, for I notice that point too in Schedule 9 on page 168. On page 168, item 14 states: The design and construction of the foundations are based on the Institution of Civil Engineers Code of Practice No. 4. I presume that there again that code of practice might change and become 4(b).

I am glad to see that the Joint Parliamentary Secretary to the Ministry of Agriculture recognises the importance of this point, and I am sure that he, like I, will be interested to see how the Under-Secretary of State for Scotland will get out of this quandary.

10.41 p.m.

The Under-Secretary of State for Scotland (Mr. Gordon Campbell)

I have noted carefully what hon. Members have said about these Regulations, and I should like to explain their purpose and the action which my right hon. Friend proposes to take in this situation on the Report of the Statutory Instruments Committee.

I should like to deal, first, with the point concerning Schedule 9. I regret that the first introductory paragraph to this Schedule is defective. It was not intended that any addition of or amendment to such publications, which was published after the Regulations were made and laid before Parliament, should automatically be included in these "deemed-to-satisfy" specifications, but the wording is capable of giving the contrary impression.

As has been rightly said, if this were the intention and if it were to happen, the effect would be to amend the Schedule without any reference to Parliament. Here, I agree with all that my hon. Friend the hon. Member for Crosby (Mr. Graham Page) said on this question. There is no issue on that point. What was intended by the first paragraph was that the latest editions of the several codes at the time of making the Regulations should apply. My right hon. Friend will amend the wording as quickly as possible by the statutory procedure laid down for amendment of the regulations under Section 3 of the Building (Scotland) Act, 1959. The procedure does not permit the tabling of amending regulations now otherwise my right hon. Friend would gladly have done this immediately.

The first steps required by Section 3 have already been taken. This defect and the need for amendment have been referred to the Building Standards Advisory Committee. The statutory procedure for amendment will be completed in good time before 15th June, when the regulations as a whole are due to come into effect. This procedure includes the laying of a further Statutory Instrument.

Briefly, the purpose of Schedule 9 is to set clown specifications or methods of construction which are widely used and which satisfy the requirements of the Regulations. The use of these deemed-to-satisfy "provisions thus enables us to set down specific illustrations of general requirements expressed more flexibly in terms of performance standards. The methods and specifications set out in the Schedule are not the only ways in which the mandatory requirements can be satisfied, and designers are free to adopt other means of satisfying them. This approach is not new. It was used in the Model Building Byelaws, and authority for its use in connection with the present regulations is given by Section 3(3,c) of the 1959 Building Act.

The Schedule makes liberal reference to British Standards and codes of practice and other publications where such standards and construction methods are regarded as satisfying the mandatory requirement. These are the yardsticks which are well-known to designers and builders. Here, I sympathise with hon. Members who pointed to some of the very technical terms in the Schedule but, as I say, these are immediately recognisable to the designers and builders who are working in this field.

Then there is the second point which the Statutory Instruments Committee raised, and although I do not think my hon. Friend raised it, I should like to deal with that point as it was in the Report. This point was, why the preamble to the Regulations did not recite the fulfilment of the various processes which must be gone through before the Regulations can be made.

These processes are set out in Section 3(6) of the Building (Scotland) Act, 1959, and are, first, consultation with the Building Standards Advisory Committee on the contents of the proposed regulations; secondly, the publication of a draft of the proposed regulations, together with a notice inviting representations on the draft within a specified period; thirdly, the holding of a public inquiry, if required, regarding any representations; fourthly, consideration of the representations and the report of any public inquiry and fifthly, consultation with the Building Standards Advisory Committee on any changes proposed to be made to the draft.

The preamble stated that the Regulations are made in exercise of the powers conferred by Section 3 of the 1959 Act, which contains the requirements which I have just described, and I can assure the House that all these requirements have been fulfilled. I regret that this recital was omitted, and I can assure the House that in any future regulations made under this Section of the Act the appropriate recital will be included.

I should like to outline the purpose of the Building Standards Regulations, as they are likely to have widespread beneficial effects in Scotland. Their production has been an arduous task, but we do not regard the code now produced as the last and final word. The continued co-operation of users will be required to ensure that it is kept up to date in a period of rapid changes in standards and technical methods, if it is to continue to be a workable and productive element in achieving good building standards.

When the draft regulations were published in 1951 nearly 200 separate representations were received about them. I think that this is the point to which the hon. Member for Kilmarnock (Mr. Ross) was referring. These were all discussed, and some were dealt with at a public inquiry. As a result, many changes were made in the original proposals. My right hon. Friend is extremely grateful to the many persons and organisations who made representations on the draft regulations. He is also particularly grateful to the members of the Building Standards Advisory Committee, whose advice in formulating the present code has been invaluable. Even now, in the period since the Regulations were laid before the House, several more approaches have been made with a view to modification—for example, in the light of the latest research in a particular field. This is indicative of the widespread interest in the Regulations.

One of the purposes in having building standards in the form of national regulations is that they can be amended more rapidly than could the previous byelaw form of control. In every case when amendments are proposed the full statutory process laid down in Section 3(6) of the 1959 Act will, of course, be followed, so that there will always be ample opportunity for anyone interested to make his voice heard. My right hon. Friend intends to see that the changes are made when they are shown to be necessary. I mentioned earlier that the Building Standards Advisory Committee was being consulted about the rectification of the defective wording in Schedule 9. It is also being consulted about a number of other points which have been raised. Hon. Members will see, therefore, that the necessary process of continuous scrutiny of the Regulations has already been set in motion.

The hon. Member for Paisley (Mr. J. Robertson) raised the question of improving these Regulations in due course. While not necessarily accepting everything he said, I agree that the Regulations will be kept under constant scrutiny to improve them. The Building Standards Advisory Committee has this as a continuous task. The hon. Member also asked why these standards are minimum standards. He will see that under Section 6(2) of the Act a warrant has to be granted, if the Regulations are complied with. The Regu lations therefore need to be set as minimum. This does not mean that designers and developers must abide by the minimum. They can, of course, do better if they wish to.

I regret that a praiseworthy task in substance likely to be acclaimed as successful should have been marred by this defect in Schedule 9. I hope that I have explained clearly what has happened and that hon. Members will approve of the purpose of these Regulations. If we were to have to withdraw the Regulations, it would mean that the whole procedure under Section 3 would have to be gone through again, with considerable delay in bringing in Regulations which are widely thought to be beneficial to Scotland.

Mr. Graham Page

I am grateful to my hon. Friend for assuring the House that an amending regulation can be put before the House before these Regulations come into operation. Having regard to that, I beg to ask leave to withdraw the Motion.

Motion, by leave, withdrawn.