HL Deb 01 July 1991 vol 530 cc882-92

7.44 p.m.

Report received.

Clause 1 [New dwellings to be fitted with smoke detectors]:

Lord McIntosh of Haringey moved Amendment No.1. Page 1, line 7, leave out from ("offence") to ("in") and insert ("in respect of each occasion on which the dwelling, or a part of the dwelling, is not fitted with a smoke detector").

The noble Lord said: My Lords, we anticipated this amendment when moving a somewhat different amendment at Committee stage. I moved then that, instead of having the limit on scale 3, which is at present £400 but will increase to £500, fines for an offence against the Bill should be extended to scale 5. In response to my arguments, the sponsor of the Bill, the noble Lord, Lord Wade, first reminded the Committee that the fine under scale 3 was to increase to £1,000. Secondly, he stated that there would be two fines for a house on two floors which, under the Bill, would have to have two smoke detectors, and fines of £20,000 to £30,000 relating to a housing estate. Unfortunately for the noble Lord, he was then contradicted by the Minister, who pointed out that the fine was per dwelling and not per smoke detector or per floor. The noble Baroness stated in a helpful letter to me—for which I thank her—that the fine is per dwelling and therefore there would be a fine for an offence on each dwelling in a housing estate. In that sense we are half way there.

We consider that for the provision to apply per dwelling is not good enough. We consider that there would be advantage in having a fine per detector. That is the unit of exchange in the Bill. I hope that the noble Lord will accept that minor amendment. It is an amendment which helps the enforcement of the Bill. I beg to move.

Lord Wade of Chorlton

My Lords, in responding to the previous amendment of the noble Lord, Lord McIntosh, I agree that I was a little misled, though I still contend that in a housing estate fines of several thousands of pounds could be involved.

The difficulty with the amendment is that there is nothing in the Bill which lays down how many smoke detectors are to be fitted or indeed where they should be fitted. That matter is left to the guidance document which the Secretary of State is to approve and issue under Clause 3 of the Bill.

The noble Lord's amendment refers to, a part of the dwelling … not fitted with a smoke detector". There are many parts of a dwelling where it is unnecessary and even undesirable for a smoke detector to be fitted. I presume that the noble Lord has in mind that it should be an offence not to fit a smoke detector in those parts of the dwelling where the guidance in the approved document indicates that one should be fitted.

However, that would make the guidance in the approved document mandatory and that is the opposite of what is intended. Clause 3(3) states explicitly that, a failure on the part of any person to comply with an approved document does not of itself render him liable to any criminal proceedings". The noble Lord's amendment runs counter to that important principle. I hope that on reflection he will be willing to withdraw the amendment.

Baroness Blatch

My Lords, the arguments put forward by my noble friend Lord Wade are entirely consistent with the manner in which the provisions of the Building Act 1984 relating to approved documents operate, and the Government support them.

I simply add that the amendment appears to be an attempt to increase in an indirect way the maximum penalties provided for under the Bill. It remains the Government's view that the penalty already provided —namely, a maximum fine level at level 3 for each dwelling which is not fitted with one or more smoke detectors—is the appropriate one. I should remind the House that level 3 is about to be increased from £400 to £1,000.

I support the reply given by my noble friend and hope that the noble Lord, Lord McIntosh, will accept that the guidance will meet some of his anxieties.

Lord McIntosh of Haringey

My Lords, I find that a rather legalistic and indeed contradictory response from the noble Lord and from the Minister. The noble Lord reminds us that Clause 3(3) states that: a failure … to comply with an approved document does not of itself render him liable to any criminal proceedings". He did not remind the House that in any proceedings for an offence a failure to comply with an approved document may be relied on as tending to establish liability; and proof of compliance with such a document may be relied on as tending to negative liability. Clearly, approved documents have some significance.

I hope that there is no doubt that the approved documents will specify a smoke detector on each floor of any dwelling. Unless each floor has a smoke detector one might as well not have smoke detectors. The purpose of the Bill is that there should be a smoke detector on each floor and that the alarm should be sounded not only on the floor on which it is located but on all other floors. If I am wrong about that, the Bill will be less effective than I had expected.

To rely on the lack of strict enforcement by criminal proceedings of the details of the approved document is to be less than confident in the good sense of those who will draw up the approved document and the effect of the amendment. I shall not pursue the issue. It is desirable that the Bill should proceed, if possible unamended or amended only by agreement. Failing that agreement I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Enforcement]:

Lord McIntosh of Haringey moved Amendment No. 2: Page 3, line 6, at end insert: ("(1A) Any person duly authorised in writing by the local authority may on any occasion when not otherwise empowered to do so for the purposes of building control at any reasonable time enter any land for the purpose of exercising his functions under this Act. (1B) A person authorised under subsection (1A) above to enter any land shall, if so required, produce evidence of his authority before so entering. (1C) Any person who wilfully obstructs a person acting in the exercise of his powers under subsection (1A) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale").

The noble Lord said: My Lords, I return to the issue of rights of entry as a result of what was said in Committee. It was then suggested that rights of entry for local authority officers should be as powerful in respect of the implementation of the Smoke Detectors Act, as it will be, as for building control. The noble Lord, Lord Wade, said: After all, he is not likely to be making his inspection solely for the purposes of enforcing the provisions of this Bill".—[Official Report, 21/6/91; col. 409.] I am sorry but I must disagree with the noble Lord. It is likely that the installation of smoke detectors will be one of the last acts in the construction of a dwelling. It may well be that on final inspection the building inspector will see that everything has been done except the installation of smoke detectors. It would be somewhat farcical if he were unable to regain entry to ensure that the smoke detectors had been fitted and that the provisions of the Bill had been complied with.

It is an anomaly that under the Bill there will be powers separate from the general powers of building control. However, it is desirable that the standard of enforcement for the provisions of this Bill should be as high as for any other aspect of building control. The only provision that would make me feel differently about the matter would be if the inspector were allowed to refuse the final building control certificate solely on the ground that the smoke detectors had not been fitted. I cannot see how that could be the case because, strictly speaking, all other building control regulations would have been complied with. Only this aspect would not have been complied with.

If the noble Lord chooses not to accept the amendment, I hope that he will persuade the Government that some provision must be made for a final inspection, if necessary by using rights of entry to deal with a single outstanding issue—that of the installation of smoke detectors. I beg to move.

Lord Wade of Chorlton

My Lords, when this matter was debated at Committee stage I expressed my reluctance to add a power of entry to the provisions of this Bill unless it was absolutely necessary to do so. I still do not believe that it is.

The Building Act 1984 contains powers of entry which can he exercised at any time by a local authority which believes that it is necessary to ensure compliance with the requirements of the building regulations. These regulations apply where building work is being carried out. Building work is defined to include the provision of a dwelling either as a new const ruction or the reconstruction or conversion of an existing building. I cannot see any circumstances where a dwelling which is subject to the requirements of this Bill would not also be subject to requirements under the building regulations.

I am satisfied that for all practical purposes these closely related powers provide adequate rights of entry to enable the requirements of this Bill to be enforced. After all, these requirements have to be met by the time the construction of the dwelling is completed. Until that point is reached the authority will in practice still have a right of entry for building control purposes. It is theoretically possible that a local authority might be satisfied that the requirements of the building regulations had been met but not that adequate detectors had been fitted, although I have to say that it does not seem very likely. Even in this case, however, the authority would in practice ask the builder to install the necessary detectors before commencing legal proceedings under Clause 1 of the Bill. In such a situation I find it difficult to believe that the builder would refuse to allow the authority to verify that the work had been done.

The noble Lord's amendment is wide in its effect. It would enable local authorities to authorise those enforcing the provisions of the Bill to enter an occupied dwelling to see whether smoke detectors had been installed by the builder. That would worry me greatly. I know that from the beginning of our debates on the Bill it has been accepted that we do not wish to give rights of entry to occupied premises and clearly the responsibility became that of the builder. The amendment would widen that right and I believe that it is not necessary to do so. I hope that with that assurance the noble Lord will not press his amendment.

Lord McIntosh of Haringey

My Lords, I have listened with care to the noble Lord's arguments but ask him to look at Clause 5(3) of the Bill. There provision is made for an approved inspector to be empowered not to issue a certificate unless a smoke detect or is in place. In other words, the powers of an approved inspector appear to be wider than the powers of a local authority inspector. Does the noble Lord consider that his arguments against, for example, inspecting premises that are occupied apply equally strongly to Clause 5(3)?

Lord Wade of Chorlton

My Lords, under Clause 5(3) action would still fall under the arrangements with the local authority regarding the building period during which the inspector would have the right of entry. The certificate would not be issued until the building had been completed and handed over. Those powers relate only to the period during which the building is taking place and not when the final certificate has been issued and the building handed over as complete to the owner to take occupation. There is nothing in Clause 5 that will give the right of entry when the occupier is in possession of the building. That is the purpose of the Bill and the reason why I asked the noble Lord to withdraw his amendment.

Baroness Blatch

My Lords, the promoters of the Bill have clearly had to be selective in deciding which of the supporting provisions from the Building Act 1984 should be included in it. I can understand and sympathise with my noble friend's reluctance to create a new power of entry, particularly one which would extend to occupied dwellings.

I accept that the noble Lord, Lord McIntosh, is technically correct. But for the reasons that my noble friend has given I do not believe that in practice there will be a problem. The powers already available under the Building Act 1984 will provide an adequate power of entry to enforce the provisions of this Bill.

I recognise that it is normally unacceptable to use a power of entry for a purpose which is different from the one for which it was granted by Parliament. However, the Bill is intended to operate in parallel with building control and it therefore does not seem to me to be objectionable to rely on the power of entry which is already available under the Building Act 1984.

I hope that the noble Lord, Lord McIntosh, is reassured that in practice it is not necessary to create a new power of entry to enable the provisions of this Bill to be properly enforced and that he will not press his amendment.

Lord McIntosh of Haringey

My Lords, I am grateful for the assurance that my amendment is right in principle. I have listened carefully to the argument that it will make no difference in practice. I do not understand the argument; I believe that at the final inspections under building control regulations it will be common to find that all the requirements of those regulations have been complied with but that the installation of the smoke detector is outstanding. Obviously the detector will be installed last; for instance, one does not install a smoke detector and then plaster around it. I believe that in practice the cases will be more common than the Minister believes. If we cannot amend the Bill, a solution will have to be found. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Effect of initial notice under Part II of Building Act 1984]:

8 p.m.

Lord Rea moved Amendment No. 3:

Page 3, line 30, leave out subsection (4).

The noble Lord said: My Lords, the noble Baroness, Lady Gardner of Parkes, cannot be present this evening and she has asked me to move this amendment on her behalf. I shall speak also to Amendments Nos. 4, 5 and 6, which are consequential.

These amendments have been tabled because there is a danger that the Smoke Detectors Bill may interfere with the smooth running of the control system established by the Building Act 1984, referred to during our discussions on the previous amendment.

The amendments tabled are an attempt to reduce the scope for any fragmentation of the system by ensuring that the value of the Building Act's final certificate is not reduced. If that were done, it would reduce the anomaly which my noble friend Lord McIntosh mentioned as regards the general powers of building control, which are part of the Building Act 1984, and this new Bill.

As it stands the Bill places an obligation on an approved inspector to issue a second certificate for each house; that is, a certificate relating to the installation of smoke detectors. That is an unnecessary and cumbersome obligation which establishes a precedent for additional final certificates if further building regulation-type matters are covered by separate statutes in future.

By relying solely on subsection (3) to implement the terms of the Smoke Detectors Bill—and to my mind it seems that it could be quite easily adapted to do so —an efficient, cost-effective method can be achieved while maintaining the overall integrity of the Building Act's final certificate which would, therefore, include the requirements of this Bill with regard to the installation of smoke detectors. I shall be interested to hear the view of the noble Lord, Lord Wade on that suggestion. I beg to move.

Lord Wade of Chorlton

My Lords, I thank the noble Lord, Lord Rea, for raising this point on behalf of my noble friend Lady Gardner. I fully share the desire to maintain the existing system of building control established under the Building Act 1984, and I should not wish to do anything which would make the work of an approved inspector more cumbersome.

Clause 5 is based on the existing legislative requirements relating to final certificates under Part II of the Building Act 1984. This is a complex but well understood procedure, under which approved inspectors inform the local authority that the building work under their supervision has been completed and that they have discharged their prescribed functions. The Bill does not contemplate a second final certificate but a simple statement which could be written or typed at the end of the Building Act final certificate. This statement would declare that the approved inspector had taken such steps as are reasonable to satisfy himself that the requirements of Clause 1 had been met. In my view it should be no more cumbersome or complex than that.

I do not believe, therefore, that there is any difficulty with Clause 5 as drafted. The amendments would give rise to some drafting problems, and, in view of what I have said, I hope that it will not be necessary to press them.

Baroness Blatch

My Lords, I agree with my noble friend's interpretation of Clause 5 as drafted. It may be helpful if I add that, if there should at any time be problems of inconsistency or duplication between the requirements of this Bill and the building regulations as set out by the noble Lord, Lord Rea, Clause 6 is always available to enable us to deal with that situation.

Lord Rea

My Lords, I have listened to the noble Lord and to the noble Baroness. It still seems to me that these amendments would be logical and that Clause 5(4) is not necessary provided one or two words in subsection (3) are altered.

I do not wish to press the amendment. However, perhaps the noble Lord will ponder as to whether he may wish to bring back an amendment on Third Reading which gives effect to the proposed simplification, which will lead to a reduction in additional bureaucracy. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 to 6 not moved.]

Clause 7 [Short title, interpretation, commencement and extent]:

Lord McIntosh of Haringey moved Amendment No. 7. Page 4, line 27, leave out first ("or").

The noble Lord said: My Lords, again this is a matter which we raised in Committee. I return to it in this form largely because of a very helpful response given to me by the Minister in a letter of which I understand the noble Lord, Lord Wade, has a copy. She clarified that in the Government's view a flat above a shop or office would be covered by the definitions in Clause 1. She went on to say: Caravans are another matter. They are not constructed in the same way as buildings, and we do not consider that they fall within the normal meaning of the term 'house or flat'. They are manufactured products and, in our view, it would not be appropriate or practical to use this Bill to control the way in which they are constructed".

Of course caravans are not the same as houses or flats in the ordinary sense. That is why we are proposing the amendment. If they were the same the amendment would not be necessary. The point about caravans is that people live in them. They are constructed in such a way that many of them are peculiarly vulnerable to fire and they are used by people whose cooking and heating methods are also peculiarly vulnerable to fire. In that connection I am thinking particularly of bottled gas and the way in which many bottled gas appliances, both for heating and cooking, are constructed and are included in caravans, very often in a confined space. That means that the risk of fire is much greater than it would be in a real house or flat. However, caravans are used as dwellings and this Bill should be about dwellings because it should be about protecting people at home.

My amendment deals only with caravans used as dwellings. They are perhaps more vulnerable than ordinary dwellings and I contend that they should be included within the scope of the Bill.

Lord Wade of Chorlton

My Lords, I have tremendous sympathy for everything that the noble Lord, Lord McIntosh, has said on this issue. I agree with him that a caravan is a very vulnerable place.

The difficulty with these amendments is that this Bill is intended to operate in parallel with the building control system, and caravans and mobile homes are exempt from the provisions of the Building Regulations 1985. While I sympathise with what the noble Lord has said, I have regretfully concluded that this Bill is not the right way to provide the additional protection which he seeks for those living in permanently sited caravans.

The advice which I have received—and because of my sympathy for what the noble Lord said I have taken a lot of advice—is that if the Bill were to be extended in that way, it would then also be necessary to extend the building regulations to cover caravans of this type. That would be a significant extension of regulatory control. If that were not done, we should finish up with a free-standing provision to which none of the procedural requirements which are set out in the Building Act 1984 and which are essential to make the building control system work would apply. I take just one example. There would be no requirement to notify the building control authority that a new non-mobile caravan was being brought onto a permanent site. But, unless the caravan can be inspected before the occupiers move in, we shall be back to the problem that enforcement could only be achieved through the building control officer entering a family's home to check that they are protected by smoke detectors.

As I have said, I sympathise with the thinking behind the amendment. But caravans are manufactured products and, if it is thought necessary to lay down requirements about how they should be constructed, I believe that that should be done through consumer protection legislation. It does not seem to me to be appropriate to use legislation whose purpose is to regulate the way that buildings are constricted on site.

I hope that my noble friend the Minister will take on board the points that both I and the noble Lord, Lord McIntosh, raised. I am sure that the Government will be able to consider ways in which our anxieties may be resolved, notwithstanding the difficulties at present before us.

Bareness Blatch

My Lords, the noble Lord, Lord McIntosh, is raising an important issue. I accept that it is important for people who live in permanently sited caravans to have the protection which a smoke alarm provides, and the Government certainly do not take lightly the concerns he has expressed. But I share the view expressed by my noble friend Lord Wade that it would not be appropriate to try to deal with this issue in the present Bill. As he said, the Bill is about buildings, and is intended to operate in parallel with the requirements in the building regulations relating to how buildings are designed and constructed on site. A caravan is not a building; it is not constructed on site; and it is not controlled under the building regulations. It is a manufactured product.

Clearly we would not want building control officers to have to go into factories to check the construction of caravans. If they were to be brought within the scope of the Bill, it would be necessary to regard the stationing of a non-mobile caravan on a permanent site as a building operation. But would the requirements relate solely to smoke detectors? Or would all the other requirements of the regulations have to follow? There is also the question of powers. Is a caravan a building for the purposes of the Building Act 1984? If not, this route would not be open to the Government and we could then be left with a requirement which could not be enforced because none of the machinery provided by the Building Act 1984 could be applied.

The Government recognise the importance of the anxieties expressed by the noble Lord. I do not believe, however, that they can be met under this Bill. If we are to lay down standards for manufactured products such as caravans, the issue needs to be tackled in some other way, such as in consumer protection legislation.

I hope the noble Lord will accept that, for all the reasons given, this is not the right Bill for such an amendment and that the Bill should not be compromised or even delayed by looking for ways to accommodate these amendments. I can say to the noble Lord, because I share his anxiety, that on his behalf and on behalf of anyone else who is concerned about the issue, I shall make inquiries into whether there exists a provision in some other Act of Parliament which would allow the objects of the amendment to be achieved without the use of primary legislation. If that cannot be done, I hope that the noble Lord will accept that this Bill is an inappropriate one in which to incorporate the amendment.

Lord McIntosh of Haringey

My Lords, I had hoped that the Minister would be able to go further than that. I understand the restrictions placed on a Private Member's Bill. It must be fairly uncontroversial to go through both Houses, particularly the other place, without having government time. I realise that to extend the scope of a Bill of this kind often means to condemn it to death. I shall certainly not pursue the amendment.

I am grateful to the Minister for saying that she will explore whether there is any scope under other legislation to achieve the objective that we all want to achieve without the need for primary legislation. Perhaps the noble Baroness can go a little further and say that if it is not possible, she will urge on the appropriate department that the objectives should be included in legislation at the earliest opportunity.

Baroness Blatch

My Lords, the noble Lord will know that it is difficult for me to be specific in that regard. I can say that his anxiety is properly registered. We share the concern that the objective of the amendment should be achieved. We will go as far as we can to achieve it without primary legislation. If that fails, it remains a candidate to be contained in some other legislation in the future.

Lord McIntosh of Haringey

My Lords, I hope that those words will be heeded by those who determine the Government's legislative timetable. I can imagine how sick we shall all feel if, in the coming months or even years, as is quite likely, children die in a fire in a caravan used as a mobile home. The caravan is by far the most dangerous kind of home; it offers by far the most dangerous conditions that can exist for risk of death by fire.

We are stuck with the restrictions of the Private Member's Bill procedure. However, that does not mean that we should not use every effort available to government to try to do something about it quickly. I should perhaps say that it is not my intention to table amendments for Third Reading. With those not very hopeful words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

House adjourned at seventeen minutes past eight o'clock.