HC Deb 29 October 1990 vol 178 cc829-35

Lords amendment: No. 174, in page 80, line 45, leave out "and (3)" and insert "to (5)".

Mr. Trippier

I beg to move, That this House doth agree with the Lords in the said amendment.

The group of amendments headed by amendment No. 174, which we are about to consider, contains amendment (a), which will be moved by the hon. Member for Norwood (Mr. Fraser). Perhaps we can hear from the hon. Gentleman later about his amendment.

Question put and agreed to.

Lords amendment: No. 175, in page 81, line 18, at end insert and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.

Motion made and Question proposed, That this House doth agree with the Lords in the said amendment.—[Mr. Trippier.]

Mr. John Fraser (Norwood)

I beg to move amendment (a) to the Lords amendment in line 4, at end insert 'and where the complaint is against the local authority to ensure that the investigation is independent of the department of the authority complained of and that a person independent of the local authority is authorised to take further proceedings if the investigation reveals grounds for further action.'. Hon. Members may not have noticed, but page 204 of the Bill, schedule 14, part III, repeals sections 91 to 99 of the Public Health Act 1936. Section 99 of that Act is a piece of legislation that I use more often at my advice bureaux than any other public health legislation. It enables a person to take proceedings in a magistrates court when the state and condition of a house makes it unfit and prejudicial to the health of its occupants.

Generally, section 99 is used by a health authority, a local authority, to take proceedings against a private landlord or, more rarely, against a housing association. But in a case decided in Cardiff Crown court some years ago—Crown v. Cardiff city council—it was decided that a local authority which was a health authority could not take proceedings against itself.

I shall illustrate the injustice of this to tenants of local authority accommodation which is leaky, full of condensation or in other ways a threat to their health—perhaps because it is full of cockroaches—by describing the state of housing in London some years ago. A large part of accommodation in London was owned, controlled and managed by the Greater London council. I am sorry to say that much of that accommodation, whether under Labour or Conservative administration, was in poor condition. My local authority, Lambeth borough council, like many in London, would regularly issue summonses under section 99 against the Greater London council as the housing authority. In those circumstances, the court could make an order against the housing authority stating that it must carry out the necessary repairs, impose a fine on it and, most important of all to the person suffering poor housing conditions, award compensation of up to £2,000.

When the GLC estates were forced over to the London metropolitan authorities by the Government, those people in poor accommodation—which had a leaky roof or had been under-repaired so that it affected their health—had no recourse in law.

For some years it has been legally impossible to get the housing authority to issue a summons against itself. Therefore, we have to send people to the magistrates court to issue their own summons against the housing authority under section 99. They are helped in that by law centres, but as a result of Government restraints on local government expenditure, some law centres—notably three of them in Wandworth where there are plenty of housing problems—are being closed. Other law centres such as those in Bradford have been under threat or closed. People have to issue the summons against the Housing authority themselves and there is no legal aid because it is a prosecution, not a defence.

The Bill places a duty upon a local authority to investigate a complaint about a statutory nuisance. It is true that under clause 79, an individual who is aggrieved by a statutory nuisance can issue a summons. That is the current position, and that is what I am trying to change. There should be equal justice for all tenants. It should not matter whether a person is a tenant of a local authority, a housing association or a private landlord. If water is coming through the roof, if there is what is called a cold bridge, and if the health of the parents and children is likely to suffer because of poor housing conditions, there should be no difference in the quality of representation and justice simply because of the identity of the landlord.

The effect of the amendment would be that a local authority would have a duty not only to investigate a statutory nuisance but, if proceedings were then justified, to appoint a third party to prosecute that local authority because, as a result of the Cardiff case, it cannot prosecute itself. It is even more important that the amendment be accepted because, as a result of the changes in the Bill, the ability of a magistrates court to award compensation for failure to repair is lessened.

It is an important amendment that puts the council tenant back into the same position as private and housing association tenants. It restores the rights held by many former GLC tenants before the transfer of the GLC estates. It is a sensible amendment that would ensure the even-handed treatment of all tenants. I hope that the Government will accept it.

Mr. Simon Hughes

I wish briefly to support amendment (a). I do so in what I believe to be the accurate belief that I represent a greater proportion of council tenants than any other hon. Member who represents an English seat. This is an enormously significant amendment for the great proportion of my constituents who live in council properties. I endorse everything said by the hon. Member for Norwood (Mr. Fraser). I think that we have approached the amendment from the same position.

I was a practising lawyer before I came to the House, and the Public Health Act, especially section 99, provided an easily available and quick remedy to deal with repairs to domestic property. I was the recipient of representations from local law centres, to which many people go for advice and which use that remedy. For the regular stream of people who come to my surgery, as they do to the surgery of the hon. Member for Norwood and, no doubt, the surgeries of many other hon. Members, including Conservative Members, the only way to get the local authority to do anything is to prosecute. Unless it is taken to court, nothing happens. The windows remain broken, the ceilings leak, the pipes are unsafe and the home is a danger to health—it is a public health issue.

I have not had the opportunity to discuss the matter with the Minister, and I did not serve on the Committee. I hope that he will welcome the amendment. It may need a drafting change, but fundamentally it would have two effects. First, it would give all local authority tenants the right to take action in a simple and effective way and to get a quick remedy by way of compensation. Secondly, and more importantly, it would give equity to people who, possibly coincidentally, happen to be council tenants. They may have become local authority tenants only because there was no other landlord in their area to whom they could go. Why should they be adversely affected compared with private or housing association tenants when the damage to their health may be exactly the same? I hope that the Minister will make a positive response.

10.45 pm
Mr. Andrew F. Bennett

I agree with the hon. Member for Southwark and Bermondsey (Mr. Hughes), but I also want to draw the Minister's attention to amendment No. 176.

Most members of the Committtee were pleased when the Government announced that they intended to remove Crown immunity, but particularly disappointed that, when the Bill returned from another place, it was discovered that the Government had decided to restore Crown immunity in respect of smoke emissions or noise from Ministry of Defence premises.

It seems odd that the Government did not tell us in Committee in this House that they intended to reserve that immunity in respect of the Ministry of Defence, and that is occurred to them only when the Bill was returned by the Lords.

The undertaking given by the Government in the other place was also very odd. There might be an argument for retaining Crown immunity in respect of military operations, although I am not happy about the safeguards for people living close to MOD establishments. Even so, I do not understand why the Ministry should enjoy immunity in respect of activities that are the subject of legislation to which others must conform.

It seems crazy that a Ministry of Defence hospital operating an incinerator for disposing of medical waste will not need to comply with the Bill's provisions whereas a national health service hospital will—and ridiculous that, whereas a building that is the source of noise created by a late-night party, for example, will also be subject to the Bill, whereas premises occupied by the MOD will not.

It might have been reasonable if the Government had sought an exemption in respect of military operations, but it is not acceptable to demand blanket exemption. I hope that the Minister will offfer a better explanation of why that is necessary than was given in another place. Otherwise, we shall conclude that, as in so many other areas, Ministers from the Department of the Environment get turned over by Cabinet colleagues, and that every proposal that they make ends up being severely modified as a result of the activities of other cabinet members.

Mr. Trippier

Even though the statement by my noble Friend the Parliamentary Under-Secretary of State for the Armed Forces in another place, Lord Arran, may not have satisfied the hon. Member for Denton and Reddish (Mr. Bennett), it certainly satisfied their Lordships. I shall endeavour to explain why it should also satisfy the hon. Gentleman and other right hon. and hon. Members.

As the hon. Member for Norwood (Mr. Fraser) might have expected, I claim that amendment No. 79 covers the situation that he described. I have a great deal of sympathy with his comments in respect of those of his constituents who want recourse to law and for the legal process to be dealt with speedily, just as I do with the remarks of the hon. Member for Southwark and Bermondsey (Mr. Hughes). I am sorry that those points were not raised in Committee, when we could have discussed them fully.

In preparing for today's debate, I wanted to be convinced that adequate compensation will be available for those people who are aggrieved and take their case to a magistrates court—and I am satisfied that there will, provided that the case is well founded.

Amendment No. 178, which we have yet to consider, will enable a court to award backdated compensation, as is the present position under the Public Health Act 1936 in respect of action taken by private individuals. The House will forgive me if I am not familiar with the Cardiff Crown court case, but I was concerned that assistance should be available to any individual who felt aggrieved that they had received unsatisfactory service from their local authority.

The hon. Gentleman has prayed in aid the fact that, on occasion, law centres can assist his constituents, as indeed they can assist all our constituents if they have such a law centre. However there are other fairly sophisticated, informed bodies which will assist a constituent in such a dilemma for no charge whatsoever. I am thinking especially of Shelter or, in London, SHAC. We cannot interfere with the discretion of the magistrates in such cases.

The hon. Member for Norwood seems to be suggesting—it unnerves me slightly—that he does not have faith in the magistracy to determine whether the aggrieved constituent—the plaintiff—is right to bring the action in the first place.

Mr. Fraser

The Minister is missing the point completely. The local authority will be the prosecuting authority, unless it is also the defendant. The amendment provides that the local authority cannot be both prosecutor and defendant. Therefore, a third party is appointed to prosecute the local authority. There is no criticism of the magistracy, as they are first class. There is some criticism about funding for advice centres, but the main point is that at the moment the local authority cannot be both prosecutor and defendant. I want to correct that imbalance.

Mr. Trippier

There is no problem if the case can be brought by an organisation such as Shelter or SHAC. It is clear from the wording of the amendment—the hon. Gentleman has already said that the wording may not be perfect—that it gives an impression that an aggrieved individual could take the matter to the magistrates court. That is the whole point of clause 79. When someone else could be invited by the tenant to take the local authority to court, the remedy is open to them to do that. We have allowed that in clause 79.

We are not merely talking about law centres, Shelter and SHAC; there are citizens' advice bureaux and other organisations, which are quite used to taking cases of this kind and to supporting aggrieved individuals.

There is no lack of sympathy on the Conservative Benches or in the Government's mind about what is being said, but I assure the hon. Gentleman that the whole point of clause 79 is to deal with that particular aggravation.

Mr. Simon Hughes

I am sure that the Minister is beginning to understand, but there is still a problem: if Parliament charges local authorities with being the statutory body responsible for upholding environmental health, it is natural that people will go regularly to the authority to seek enforcement of their rights as regards public health. This is the one occasion, as the hon. Member for Norwood said, when the local authority is forbidden to act because it would be the defendant. We are seeking to provide a route whereby the complaint can go from there to somewhere else. The amendment provides an easy but automatic mechanism. Otherwise, we shall have to rely on non-statutory provisions, which may not always work.

Mr. Trippier

There is not merely a disagreement between the hon. Members for Norwood and for Southwark and Bermondsey and myself—there is a yawning chasm. The precise point that the hon. Gentleman has raised is met by clause 79.

I understand the point that the hon. Member for Southwark and Bermondsey is making. It is true that, given the statutory responsibility of the environmental health officer, under normal circumstances an individual would go to that officer to ask for support in the case that he was seeking to advance. Therefore, it would clearly be ludicrous for the environmental health officer, who is paid by the local authority, to take the case to court against the authority which is his paymaster. The hon. Gentleman made that point well, as did the hon. Member for Norwood.

That is not at issue. Clause 79 allows an aggrieved individual to take a case directly to court—just as, in part IV of the Bill, which deals with litter provisions, we have written it large that any individual can take a local authority to court if he is not satisfied with the standard of cleanliness.

Mr. Fraser

There is no symmetry. If the local authority prosecutes, it uses its own solicitors department. The prosecutor does not incur any expense. The local authority can also instruct counsel. If a constituent has to go to a citizens advice bureau, or someone else, he or she has to pay the solicitor or barrister to appear in court. There is no symmetry between a person appearing on his or her own behalf to prosecute an authority that will instruct a barrister to defend the proceedings, and a local authority using a solicitor or barrister to prosecute any other landlord.

Mr. Trippier

I do not agree. The hon. Gentleman and I will have to agree to disagree. There is a clear symmetry between that and what has been on the statute book for a considerable period. Any individual can take a local authority to court if he is aggrieved over a housing defect or a public nuisance of most kinds. If a constituent of the hon. Member for Norwood takes his case to the magistrates court—I am pleased to hear that he has the utmost faith in the magistracy to decide such cases—and has it upheld there, an order will be made against the local authority that makes it clear that it has to comply quickly with the order. Moreover, costs will be awarded in favour of the plaintiff. It cannot be any clearer than that.

The hon. Gentleman asks the Government to accept the amendment. However, it would introduce another form of bureaucracy—another independent body that would give advice on whether the plaintiff was right. By any standard, that is second-guessing the individual who is taking the case to court. The hon. Gentleman would have me if the Bill did not contain a provision for an individual to take his case to the lower court. However, it contains such a provision. It meets precisely the point made by the hon. Member for Southwark and Bermondsey. I want to keep it that way. I am sure that he too, as a lawyer, has faith in the magistrates courts to deal with the point. It is already covered.

As for the point raised by the hon. Member for Denton and Reddish (Mr. Bennett), Lord Arran made a statement in the other place in which he concluded that, in certain circumstances, the application of the clause to which he referred would impose unreasonable constraints on Ministry of Defence activities as they affect the defence of the realm. Clause 76 places a duty on every local authority to inspect its area from time to time to detect and, under subsequent clauses, to take action on specified types of nuisance. The two types of activity that it was agreed should not apply to defence activities are smoke and noise. That will interest the hon. Member for Denton and Reddish in particular.

The Ministry of Defence is currently exempt from all statutory nuisance legislation. Even as amended, therefore, part III will increase the degree of legislative control to which the Ministry is subject. It is evident that our armed forces cannot be properly trained and equipped without the generation of smoke and noise, which sometimes constitute a nuisance. For instance, soldiers will not be effective in wartime if they have not had realistic training, which includes the use of smoke screens, tank manoeuvres and the firing of weapons. Similarly, the equipment that they use needs to be tested in the open. It will generate smoke and, I admit noise. If statutory nuisance legislation were to be applied to such activities, they might become impossible, with serious consequences.

In the light of that information, which only echoes what was said by Lord Arran in the other place, I must ask the hon. Gentleman to accept the amendment, as their Lordships did.

Mr. Andrew F. Bennett

The Minister does not say that only military manouevres will be exempt. He says that all the Ministry of Defence's activities will be exempt. An example that was given in the other place was fire-fighting exercises. The argument was that the Ministry of Defence needs to practise fire fighting and that fires would have to be started for that purpose. Ordinary fire-fighting services will not be granted such an exemption, on similar grounds. They will have to comply with the law. Why will the Ministry of Defence not have to comply with the law? The exemption just outlined by the Minister seems to be reasonable. What is not reasonable is to give exemption for incinerators, smoke from military hospitals and noise from barracks.

Mr. Trippier

Perhaps I can reassure the hon. Gentleman by saying that we have no intention of letting the armed services hide behind the exemption to which we are both referring and to generate smoke or noise nuisances where they can be avoided. It would be of little value to specify in the amendment premises which give rise to smoke and noise nuisance for operational reasons. That is potentially the case for much of the defence estate, where nuisances that we would wish to avoid could occur too.

The Ministry of Defence has instead issued a policy statement to all their formations, and to those of the United States armed forces in the United Kingdom, stating the extent to which smoke and noise nuisance is constrained. Copies of the statement have been placed in the Library in response to questions from my hon. Friends the Members for Bristol, East (Mr. Sayeed) and for Bosworth (Mr. Tredinnick).

11 pm

That policy statement makes it clear that domestic activities—non-operational activities such as building work, hospital incinerators and industrial type processes—should not cause smoke and nuisance. The statement does not stop there: it sets very strict limits on what constitutes operationally necessary smoke and noise, where that is operationally necessary. The Government undertake to ensure that the letter and spirit of that policy statement are followed at all times.

Question put and agreed to.

Subsequent Lords amendments agreed to.

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