HL Deb 14 June 1996 vol 572 cc1981-99

12.28 p.m.

Baroness Gardner of Parkes

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Gardner of Parkes.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Strabolgi) in the Chair.]

Clause 1 [Adoption of these provisions by local authorities]:

Baroness Gardner of Parkes moved Amendment No. 1. Page 1, line 7, at end insert ("or an order made by the Secretary of State so provides").

The noble Baroness said

In moving Amendment No. 1, I wish to speak also to Amendment No. 6. These amendments introduce a power for the Secretary of state to make an order applying Clauses 2 to 9, which relate to the new night noise offence, to the area of a local authority. The order cannot have effect until a three-month period has elapsed from the date on which the order was made. As it is an order rather than a direction, it will be subject to parliamentary scrutiny. Indeed, the amendment has been brought forward in those terms because of the comments made at Second Reading to the effect that it would be desirable to have the matter returned for parliamentary decision.

There was much debate in another place as to whether the new night noise offence should be mandatory in at least some local authority areas—that is, that application of the provisions should not depend on their being adopted by local authorities. While appreciating the intention behind such a requirement, it was acknowledged that the controls would not necessarily be needed in every local authority area. Indeed, that point was made very clearly at Second Reading.

I believe that the provision of this power provides a useful back up. In the course of the Bill the Government have indicated that they will review the operation of the offence after two years. In the light of that review, the Secretary of State will be able to make an order for those local authority areas where it is considered that the night noise offence should apply. I commend the amendments to the Committee. I beg to move.

Lord Graham of Edmonton

There is virtual unanimity in both Houses on the need for the Bill but something puzzles me. Hitherto, I have been under the impression that this is an additional power to be exercised by each local community through its local authority. I am trying to understand under what circumstances central government would make an order against the wishes of the local community. The noble Baroness, Lady Gardner, is as well experienced as I am in local matters and is fiercely jealous of the right of a local council to determine what it wants. Should it decide in its wisdom that it does not need the additional powers, what are the circumstances in which, regardless of whether the local council wants it, the order will be made? Clauses 2 to 9 apply to the area of a local authority only if the authority has so resolved or an order by the Secretary of State so provides. I am genuinely seeking after truth. Under what circumstances would the ministry consider that there was such a need for some action which was not being taken by the local authority that the order was required?

Baroness Hamwee

My point is similar to the point appropriately raised by the noble Lord, Lord Graham of Edmonton. There is perhaps an implication of flexibility, which on closer scrutiny of these amendments does not really exist. Not only will the introduction of the powers become a matter for the Secretary of State rather than a decision by the local authority, but, as the noble Baroness said in introducing the amendments, controls are not needed in every area. I have amendments down that deal with powers which are not quite as proposed by the Bill, including the question of the areas to be covered. Can the noble Baroness confirm that in bringing forward an order it will not be possible, as the amendment is framed, for the order only to apply to part of a local authority area? The noble Baroness referred to controls not being needed in every area. However, I think that by that she must have meant the whole of each local authority area.

It is important to have on record the circumstances under which the Secretary of State would use these powers of direction and indeed any other information that the Government might be able to give at this point.

Lord Lucas

I am a little puzzled by the words of the noble Lord, Lord Graham, because one of the main motivations for bringing forward the amendment was to respond to points raised by the noble Lord's colleagues in another place who wished to see this offence made mandatory and wished to see whether they could move the proposers of the Bill in that direction. As I understand it, the amendment has been produced at least partly in response to comments made by Mrs. Bridgit Prentice and Ms. Joan Ruddock in another place. Therefore, the noble Lord's questioning puzzles me to a certain extent.

Lord Graham of Edmonton


Lord Lucas

My noble friend has outlined the purpose of the amendments. I should like to emphasise that in another place my honourable friend the Minister made a commitment that after two years there would be a review of the working and take-up of the night noise offence. The exact format of the review remains to be decided but I would envisage the consideration of a variety of issues, including the number of authorities that have adopted the offence and the type of areas they cover, together with operational aspects and the outcome of complaints dealt with under the offence. The findings of the review would assist in establishing how far a common approach from local authorities across the country is developing in relation to the handling of noise complaints. If, as a result of the review, it appears that Clauses 2 to 9 of the Bill have not been adopted for an area of a local authority but nevertheless those clauses should apply, these amendments will enable the Secretary of State to make an order applying those clauses to that authority's area.

I do not think I can be more specific about our intentions than that. Everything will depend on the review and its outcome. The amendment will give the Government the power to do something about the review if the review shows things that should be done. At present, we have no indication that anything needs to be done that would make us need to use these powers. But if we did not have these powers we would be pretty toothless if the review said that something needed to be done.

Baroness Hamwee

Without wishing to undermine the points I normally make about Henry VIII clauses and so on, it seems to me that the Government will not have very much scope for taking decisions as s result of this amendment. They will simply be able to bring the Act into effect for the particular local authority area. That is not very much of a response to a review. All that is doing is saying, "We disagree with X, Y or Z borough council". It is not allowing the Government any more input than that.

Baroness Gardner of Parkes

One of the difficulties is that in this House we are very keen on local authorities having as much flexibility as possible. In the other place they are very keen on this being brought in as a heavy handed, mandatory Bill right now. What we are looking for is a compromise which means that those local authorities which feel the need for this power immediately will have the choice to adopt immediately. Others which are more reluctant, either on financial grounds or because they think they do not have a problem, will have the opportunity to wait and see.

After two years there will be a review. As I understand it, it will not just suddenly say that the provisions have to be brought in nationwide. But it may be that one local authority is causing great trouble for all adjoining local authorities. I quote as a parallel car parking. When there are car parking restrictions in one borough every car moves just over the border and life becomes hell for the people living there.

I understand that if one's life is disturbed and one lives over the borough boundary one will still be covered under the Bill. But it may be that the problem becomes so extensive because one borough, say in London, of all the boroughs is not implementing the provision while all the other London boroughs think that is wrong and that it should be London-wide. The Secretary of State would then be able to bring the matter back to Parliament.

I discussed with both the noble Baroness and the noble Lord, Lord Graham, whether or not the order should be subject to resolution of the House. While varying views came to me on that, I personally think that it should be so, because I would not like to have the Henry VIII power referred to by the noble Baroness. What is proposed gives the element of discretion. I hope that it will also be a compromise acceptable to Members of another place because the Bill is an important one and we want it to go through. I hope the Committee will agree to accept the amendment.

Lord Graham of Edmonton

Before the noble Baroness sits down, perhaps I may say that this five-minute exchange has been valuable. There is no doubt that "something must be done". But, having said that, we are painfully conscious that we do not wish to be so heavy-handed that Parliament gives the impression that it is interfering too much with a power which a local authority needs to determine. In the first instance it will determine whether it wishes to adopt Sections 2 to 9 of the Act. I understand what the Minister has said; namely, that the review may very well throw up further evidence which may be sufficient two years after the review to show that local authorities are reluctant to do something that should be done. In that case the power to issue an order will deal with that situation.

I was puzzled about the kind of local authority that has a problem in its area which is so obvious to the ministry that it needs to make an order of its own volition, although the local authority has not had the gumption to take the necessary steps in the first place. The local authorities and councillors I know do not need the ministry to tell them what should be done. However, I accept that there may be circumstances where that is required. I am perfectly satisfied with the explanations.

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 2: Page 1, line 7, at end insert— ("( ) A local authority may at any time revoke a resolution to apply sections 2 to 9 or to vary the definition of "night hours" applied to their area.").

The noble Baroness said: In moving this amendment perhaps I may at the same time speak to Amendments Nos. 3, 4 and 5, which are all in my name. They are to some extent related to Amendment No. 6 which deals with the definition of "night hours". We shall come to that later. I hope that the Committee will forgive me if my point trespasses a little on the argument in support of that amendment.

Amendment No. 2 is to allow a local authority either to revoke its resolution at any time or to vary the definition of "night hours" which it desires to apply to its area. I do not want to weary the Committee by unnecessary repetition. I believe that local discretion and flexibility are important for a power which I understood was being introduced as a supplementary power for situations where the existing powers of environmental protection are insufficient. Given that it is a supplementary power—and both noble Lords have used the expression "heavy handed"—it might be a little heavy handed to impose this power in every case, even where a local authority may regard its current powers as adequate. It may have anxieties about the powers which are currently available, but in reviewing its priorities for local expenditure it may take the view that this matter is not at the top of the list.

We are well aware of financial stringencies. One of the anxieties rightly expressed by those involved in the local government world is the decreasing amount of discretion which local authorities have these days, given the obligations that may be imposed on them, as well as a reducing and capped expenditure.

The exercise of these powers might be regarded by a particular local authority as worth while, but it will have to accept the expenditure involved with night hours in maintaining a Rolls-Royce service—because that is what this Bill provides—seven days a week for 12 months of the year. We shall come to the definition of that.

Against that there are considerations concerning the maintenance of a given number of teachers, social workers and so forth. I dare say that the Committee will think that this is a very minor service compared with education and social services, but I do not believe that it will be cheap to run. Officers will only have to be on call; they will not necessarily have to be out on the streets every night of the year. However, they have to be available, which involves cost.

A local authority may regard it as necessary to have more than one officer available. The point has been made to me that where considerable noise is coming from premises where perhaps a lively party is going on, a local authority official may not be very enthusiastic about braving the situation by himself. The police may co-operate. But, almost by definition, if a local authority has to be called out to deal with noise it means that the people creating it are not going to be easily persuaded that the noise should be abated. Even serving a notice on them may be something that a local authority decides requires more than one person. I would support the local authority if it felt that the security of its officers required that.

In these amendments I am arguing that it would be appropriate to allow discretion to local authorities to enable them to assess the need for the exercise of this power as against other local needs. I beg to move.

12.45 p.m.

Lord Lucas

As the noble Baroness said, her amendments cover two subjects. There is, first, the question of revocation. A simple power of revocation would clearly be in immediate conflict with the Secretary of State's power to make an order that a local authority takes up. One would not want to have in a Bill a situation where the two sides begin playing ping-pong with each other, with the Secretary of State making orders and the local authority immediately cancelling them. If this has to be done it will have to be done in another fashion. Doubtless the noble Baroness will talk to my noble friend about her anxieties in this area.

As regards hours, I am aware of the anxieties of some local authorities about applying the night noise offence legislation during the entire night-time period currently specified. Equally, others would argue that the offence should apply for a longer period; for example, during the evening when children may be studying and young children are trying to get to sleep. We believe that the current period represents an appropriate balance of interest. The 11 p.m. to 7 a.m. period covers the hours during which people are most likely to be disturbed.

I ask the Committee also to bear in mind that one of the major anxieties expressed about existing controls over noise problems is the variation in the standard of service provided by local authorities when dealing with complaints. However, we believe that there is sufficient flexibility within the terms of the Bill for local authorities to decide the exact form of the service required to investigate complaints during particular hours of the night. Perhaps I may point out two particular aspects of that to the noble Baroness. Presumably, the local authority will issue guidance to its officers on how these offences should be dealt with. If they have particular anxieties about being over-zealous between 11 p.m. and midnight, that can be dealt with through that sort of guidance.

The exact form of the response that should be available from a local authority is not specified. If the small hours of the night—that is, between 3 a.m. and 7 a.m.—generate only occasional trouble, they may be dealt with on a stand-by or fall-back basis unless or until complaints in that time slot or in a particular area of the local authority become frequent. We think that there is a lot of flexibility in the Bill which will allow local authorities to adapt their responses to the enforcement of its provisions to suit their circumstances.

Baroness Hamwee

That is helpful. I was not suggesting that a local authority should not be zealous, and I share the concerns that were expressed on Second Reading about the problem. However, I am anxious that local authorities should not be required to be zealous in providing a service at a level that is not required.

On the question of revocation, I too can think of people with whom I might prefer to play ping-pong—I am not sure whether that would be the Secretary of State—at any given time, but assuming that the amendment which the Committee has just agreed remains in the Bill, can the Minister explain the position with regard to revocation? Is an order once made an order for ever?

Lord Lucas

I presume that once an order has been made, the local authority has adopted the provisions of the Bill and I see nothing in the Bill which allows a local authority to shed its responsibilities once accepted. I believe that that is one of the points that my noble friend Lady Gardner of Parkes has made.

Baroness Hamwee

Yes, and it is a point worth reinforcing. Having decided to apply the service, a local authority may find itself required to continue to provide that service when its provision may not be necessary—demographics alone may mean that the situation has changed—even to the point where the Secretary of State, had he determined the situation 10 years on, would have determined that it was not appropriate to require that local authority to bring in the power.

Baroness Gardner of Parkes

The noble Baroness raises some interesting points in particular on the question of revocation. Much as we would like to have it, I do not think that at the moment anyone can foresee a noiseless society.

The noble Baroness rightly raised the matter of financial priorities. Local authorities will always have to determine their financial priorities. However, at the outset local authorities will not be obliged to adopt the provisions of the Noise Bill. They will have the right to stand back and not adopt them. If, however, they do adopt the Bill, they must implement it thoroughly. If a local authority is worried about finance or thinks that the provisions will not be required in its area, it has the right not to adopt the provisions at present. The noble Baroness said that many local authorities may be satisfied with their existing powers. If that is the case, I would not expect them to adopt these provisions. However, where a local authority thinks that there is a need, it will adopt them. We are leaving local authorities with that degree of flexibility.

This group of amendments seeks to provide a power so that local authorities may revoke a resolution to adopt the provisions and to provide a power whereby local authorities may vary the definition of "night hours" during which the offence will apply. No doubt local authorities will have to consider the circumstances in their own areas—it is right that they should do so—but if they adopt the offence, that means that they have decided that they want to maximise the opportunities to control neighbourhood noise problems. I imagine that once a local authority has adopted these provisions, its council tax payers will be reluctant to see the powers disappear because complaints about noise are constantly being made and noise can make life almost unlivable. That is why I believe that local authorities will find that their council tax payers will be reluctant to see them give up such a power.

I agree with my noble friend Lord Lucas that it is important to have a more consistent approach on the question of hours of operation. It is difficult for people to know their rights if the hours are not fixed. It would be easier if people could know that "sleep time" is normally considered to be between, say, the hours of 11 p.m. and 7 a.m. and that that is the period covered by the noise provisions. Later amendments may vary those hours. However, if the hours were fixed, people would not run to the 'phone to complain at, say, 9 p.m. unless there was an element of nuisance—and those provisions will remain. People should be aware of the hours of operation. I believe that the amendment tabled by the noble Baroness suggests such a wide degree of flexibility that it might cause chaos, so I hope that the noble Baroness will feel that she can withdraw it at this stage.

Baroness Hamwee

Perhaps I may simply say that 9 p.m. is when people 'phone the council and that midnight is when they try to find an emergency number for the local authority. With the comment that I share the concern that has been expressed on all sides of the Committee about value for money, which was the basis for my tabling these amendments, I beg leave to withdraw Amendment No. 2.

Amendment, by leave, withdrawn.

[Amendments Nos. 3 to 5 not moved.]

Baroness Gardner of Parkes moved Amendment No. 6: Page 1, line 18, at end insert— ("() An order under this section must not provide for those sections to have effect before the end of the period of three months beginning with the making of the order.").

The noble Baroness said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Investigation of complaints of noise from a dwelling at night]:

Lord Elliott of Morpeth moved Amendment No.7: Page 2, line 17, leave out from ("means") to end of line 18 and insert ("any continuous period of at least six hours but not more than eight hours, commencing not earlier than 11 p.m. and ending not later than the following 7 a.m., as may be designated by a local authority in respect of any locality").

The noble Lord said: Perhaps I may begin by declaring an interest. I have the honour to be the honorary chairman of Noise Council, which has a number of views about the Bill, some of which I should like to express.

Like the amendments tabled by the noble Baroness, Lady Hamwee, this amendment seeks to give local authorities greater flexibility than the Bill as presently drafted suggests. The hours fixed by the Bill (11 p.m. to 7 a.m.) take no account of the different noise characters of different neighbourhoods or of festivals such as New Year's Eve. At the moment the Bill prescribes the same restrictions in Soho as in a rural district.

I suggest that the proposed hours are also inconsistent with other noise protection measures. Aircraft movements, for instance, are restricted only after 11.30 p.m. We are told that pubs are to be given longer hours. That will lead to noise not only from the pubs themselves, but in surrounding streets. There seems to be no point in placing controls on domestic noise which do not take into account other local noise sources. That can be done only if local authorities, in line with their discretion on whether to accept the proposed powers, are given a further discretion to tailor the minimum period of "night hours" to their own circumstances. If night hours are varied locally, everyone (wherever they live) will continue to be given the same basic protection under the Environmental Protection Act. The hours constituting night hours in any locality are comprised in the general effect of these clauses, namely, Clauses 1 to 9, and are required to be publicised in local newspapers by virtue of Clause 1(3). I beg to move.

1 p.m.

Lord Renton

One point in the amendment of my noble friend may provide further assurance. It should be borne in mind that if the local authority believes that eight hours is the required period for stopping noise, it can prescribe that.

Baroness Gardner of Parkes

The noble Lord raised some interesting points, but I believe that he has failed to take into account a number of matters raised at Second Reading. He mentioned aircraft and transport. Separate controls already exist for that type of noise. The noble Baroness, Lady Hamwee, said that some areas were adversely affected by that noise. But I cannot agree with the noble Lord that there is no point in dealing with domestic noise without dealing with everything else as well. Powers already exist for dealing with other forms of noise and nuisance, but domestic noise can be extremely disturbing to people.

The noble Lord mentioned celebrations and events of that kind. This was dealt with substantially at Second Reading. When I returned home to Oxfordshire that very weekend a letter was hand-delivered to me, which was quite masterly. I will read out a brief part of it: You may have noticed in the last couple of days … The letter refers to activities in an adjoining garden. It goes on to say: The answer is that there is not an unexpected wedding or anything like that. Much more mundane I'm afraid. I have that sobering prospect of reaching 50 this year and we have decided to fortify ourselves with a gathering of friends old and new from near and far. As far in some cases means 12,000 miles away"— the person who lives in this property is a New Zealander—" and as everyone will have their dancing shoes with them, we are not proposing an early finish in the small hours of Sunday morning. I do hope the exuberance of the band, and undoubted noise intrusion to you can be forgiven, on the grounds that such things happen only once in each of our lifetimes! I felt that this letter was very appropriate in view of our debate about neighbours having a degree of tolerance for what went on at special events. But the matter goes wider than that. Clause 2(4) gives environmental health officers great discretion as to whether or not to serve a notice. They would have the right to take into account that it was New Year's Eve, a special town celebration, or something that might cause them to view the event differently. If they adopt the provisions of the Bill they have power to investigate the noise. Having investigated it, they have discretion to say that because it is, say, a 21st birthday party, others should perhaps be willing to accept it. I believe that that point is already covered.

I pay tribute to the Chartered Institute of Environmental Health. I believe that that body already does a marvellous job in controlling nuisance and dealing with many other matters. This Bill will help that body in providing powers to make an objective assessment. Instead of having to prove nuisance there will be an objective measurement. While the noble Lord, Lord Elliott, raises some interesting points, I believe that they are already adequately covered. I shall read what has been said on this matter and perhaps discuss it with him further, but I hope he feels that he can withdraw his amendment.

Baroness Hamwee

I hope that I do not sound like a killjoy when I say that I do not believe that the Committee should place too much reliance on a local authority looking kindly on a special occasion. No doubt it will happen. However, it would be wrong if it happened too often without consistency. I can envisage occasions when complaints may be made, even to the extent of an application for judicial review, on the basis that a local authority has distinguished inappropriately between, say, New Year's Eve celebrations and celebrations by minority ethnic groups, or groups with particular religious cultural backgrounds, who celebrate on different days of the year. It may be alleged that the local authority distinguishes between 18 year-olds and 50 year-olds and so on. As a neighbour, one may be charmed by an eloquent letter such as the one read out by the noble Baroness—which is a very good way of stopping somebody from complaining—but the noise emanating from events such as those can still be disturbing.

Baroness Gardner of Parkes

This amendment is also technically defective. Another difficulty is that it is not clear from the amendment whether the same hours will apply in all the different parts of the local authority or whether there can be a variable six hours in each different part of the same local authority. There is a risk that this may cause confusion.

Lord Lucas

I have little to add to what my noble friend Lady Gardner has just said, except to say that the intention behind the amendment appears to give local authorities extra flexibility. We feel that they already have that flexibility; indeed, rather more and better flexibility in their ability to control and issue guidance to their officers in enforcing the Bill. As the noble Baroness, Lady Hamwee, said, that guidance will have to take into account different religious festivals, local festivals and the way in which people's private parties should be treated. That appears to us to give local authorities a great deal of flexibility in enforcing the Bill, and the flexibility accorded by this amendment would be much greater.

Lord Elliott of Morpeth

I am grateful to my noble friend Lady Gardner and the noble Baroness, Lady Hamwee. I thank my noble friend for his response to the amendment. The amendment is intended to give greater flexibility, which some of us do not believe to be adequate at the moment. In view of what the noble Lord said, and in the hope that with the review ahead all contributions during the course of the Committee stage will be noted, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hamwee moved Amendment No. 8: Page 2, line 18, at end insert ("on such day or days of the week in such month or months of the year as the local authority shall have resolved.").

The noble Baroness said: I beg to move Amendment No. 8 which provides that for the purposes of the Bill night hours are to apply on the day or days of the week and in the month or months of the year as the local authority resolves. I do not want to repeat the debates that have already taken place. I simply raise, by way of countering the argument, one matter. It has been said that certainty is not only useful but essential; in other words, that residents who are disturbed by noise should know their rights. I do not disagree with that. My amendment would not undermine certainty in each local authority area. However, in practical terms I believe that there is a limit to the importance of certainty. It is most likely that, troubled by a noisy party, a resident will call the local authority and the police but will not say, "Please will you exercise your powers under the Noise Act 1996".

Most local authority residents I know do not talk in quite those terms. Perhaps if the problem continues they will understand the particular detail of the Bill and the powers relating to nuisance and so forth which the local authority may have. However, it is not a real argument to say that consistency is required in the workings of the Bill. I beg to move.

Lord Lucas

As I said in respect of previous amendments, we understand the kind of flexibility for which the noble Baroness is aiming. However, we believe that in practice the flexibility already in the Bill is right. The person who has a complaint to make should have the certainty of knowing that between 11 p.m. and 7 a.m. he is entitled to get a local authority officer out of bed to come to listen to his complaint and see what should be done. However, the local authority has the flexibility to tell its officers that if such a complaint is made on New Year's Eve they should be nice to the complainant but tell him to go and put a pillow over his head or adopt some other course of action which can be easily defended before the electors.

The flexibility exists for a local authority to set policies which recognise the fact that on some days of the year there is likely to be noise after midnight and that that would be usually acceptable. The discretion of the local authority officers on the scene is total. We believe that that is the right way to apply discretion to the circumstances of a particular case.

Baroness Gardner of Parkes

I have considered the amendment most carefully but I believe that the situation would be made even more confusing. In this instance, one would not know whether it related to Monday and Tuesday, or Saturday and Sunday, or whether there was an exemption on a Friday week. People would not know where they stood as regards noise control. The situation could be so variable. It might even reach the point where people would apply to the local authority to exempt certain hours and days. The local authority might have to set up some great bureaucratic system to consider whether to give a licence for noise exemption on a certain day. I believe that the proposal goes too far. I hope that, in view of our debates, the noble Baroness will agree to withdraw the amendment.

Baroness Hamwee

It would be inconsistent to press the amendment, not having pressed the others. However, perhaps I may say to the Minister that he should be careful when giving advice such as putting a pillow over one's head because he is likely to find himself on the front page of his local newspaper. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Warning notices]:

Lord Elliott of Morpeth moved Amendment No. 9: Page 3, line 8, leave out ("emission") and insert ("generation").

The noble Lord said: Under the Environmental Protection Act the person responsible for a nuisance can include the owner of the structure where the nuisance is occasioned, not by an unreasonable amount of noise being generated within it but because structure fails to provide an adequate level of sound insulation. The owner may be an absent landlord, a housing association or a local authority. The use of the words "act, default or sufferance" imports the same wide responsibility.

Such a situation is not contemplated by the Bill, which is aimed at the generation of unreasonable noise by occupiers. I submit that the amendment makes that clear. Without it investigating officers will have to consider the contribution made by a structure to the emission of the offending noise in order to establish responsibility for it. That responsibility can be a joint one, shared by the occupier and the landlord. It could require a multiplicity of notices to be served. It could cause delay. And it provides an opportunity for legal dispute, not least if the landlord fails to pay a fixed penalty. Moreover, it leaves the tenants of local authorities in a greatly disadvantaged position since local authority enforcement officers cannot serve statutory notices upon their own employers. I beg to move.

1.15 p.m.

Lord Renton

Some legislation is unavoidably technical but this is not. Indeed, it will have to be obeyed by ordinary people, if there are such people. Therefore, I would have thought that we need to simplify the wording of subsection (5). The provision would be better if it read: For the purposes of this group of sections, a person is responsible for noise coming from a dwelling if he is a person to whose act, default or sufferance the making of the noise is wholly or partly attributable". I must confess that I have not tabled amendments to that effect but I believe that the proposal is worth thinking about. We have a duty to try to make our laws as easily understood as possible by those who have to obey them.

Baroness Hamwee

I must exercise a self-denying ordinance and allow the Committee to carry on, but I considered the matter as the noble Lord was speaking. Arguably, the clause could impose liability on the person producing and fitting materials to a part of the house which the owner expects to contain noise. If one wishes to play loud instruments or to run a small recording studio in one's home—I know people who do so—one will rely on experts to install proper sound-proofing. Where will the responsibility lie if one believes that effective sound proofing has been installed but in fact it has not?

Lord Lucas

Perhaps I may deal with the first issue raised by the noble Baroness, Lady Hamwee. Clearly, if the fault is concerned with the building the local authority will not try to use this Act to deal with it because it is worded and structured in a way which does not make that easy or appropriate. Under Section 80 of the Environmental Protection Act 1990 the local authority will serve an abatement notice on the owner of the property requiring him to upgrade the sound insulation to an appropriate level. The notice can stipulate what the level might be and a reasonable time scale for such action to be taken. That is how one would expect a local authority to deal with such a matter.

As regards the point raised by my noble friend Lord Renton, yes, on reading the part of the Bill with the benefit of his words I believe that it might be to the advantage of my noble friend Lady Gardner and the Government to look at it again without commitment. I hope that that gives my noble friend some comfort.

Baroness Gardner of Parkes

The noble Lord, Lord Elliott, presented his case clearly and well, and I was interested in the comments of the noble Lord, Lord Renton. The night noise offence is intended to deal with those who, through their inconsiderate action, allow noise to be emitted from their dwellings which disturbs their neighbours. The Bill concerns itself with the noise experienced by people rather than the noise generated by people. It is a question of whether someone is suffering from the effects of the noise. I believe that the person suffering from the noise will not be worried about where it is coming from but with the noise itself. Therefore, the Bill places the emphasis on the sufferer and provides a method by which the noise can be measured in the complainant's home, which is highly significant. It seems to be slightly off the track to consider whether it is a question of the emission or generation of noise. However, I have thought about this matter and I have listened to the comments made by my noble friend Lord Renton. I had considered whether this amendment would be simple to implement because it makes clear that it refers to the person who is generating the noise rather than any fault in the building. But there are problems in relation to that. The first is the problem of parliamentary draftsmen. The word "emission" is used throughout the Bill. Therefore, although the comments of my noble friend Lord Renton make such sound sense, it may not be possible to give effect to them because, as I say, the word "emission" is used throughout the Bill.

However, the Bill does seek to deal with the person responsible for making the noise. But there is provision already in the Bill to deal with a situation in which, if the person responsible for making the noise is not actually in the building, notice can be served on the building itself. I am not sure how that part of the Bill will fit in with this proposed change because the individual would have to be identified.

Those aspects require further consideration and, as my noble friend on the Front Bench said, we must look again at this matter. On those grounds, I hope that my noble friend Lord Elliott will withdraw his amendment.

Lord Elliott of Morpeth

On the suggestion that this useful amendment may lead to further consideration being given to the point, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [Permitted level of noise]:

Lord Elliott of Morpeth moved Amendment No. 10: Page 3, line 25, after ("within") insert ("a bedroom of').

The noble Lord said: This amendment is designed to attempt to deal with the measurement of noise related to the disturbance. It is extremely important for the credibility of the Bill that there should be a consistent and reasonable approach taken by local authorities in relation to its enforcement.

Whereas permitted noise levels and measurement devices which may be used are to be specified, the Bill leaves open and quite uncertain the question of measurement locations, which, I understand, is to be left to guidance from the Department of the Environment in due course. However, it is clear that the choice of a measurement point could affect the results obtained. The Government have announced already that they intend to base their definition of excessive noise on the level determined by the World Health Organisation as necessary for the process of sleep. Therefore, it is no more than logical that measurement should be required to be made within bedrooms. Within reason, higher noise levels are tolerable for activities undertaken in other rooms.

If the proper location for measurements is agreed accordingly, there is no reason why that should not be written into the Bill. Not to do so invites speculation that measurement points will not be prescribed; in other words, no consistency will be required in relation to measurement methods. That raises the spectre of enforcement officers scuttling round the house looking for the most advantageous measurement points or being accused by occupiers of failing to do so. In turn, that could provide grounds for legal wrangling. I beg to move.

Lord Renton

It is not only sleep that can be disturbed by noise. I dare say that there are other Members of the Committee who have had to study and work on something which requires great concentration until the early hours of the morning. I must confess that I often had to do so when I was in practice at the Bar.

With deep respect to my noble friend, because I understand the point he makes, I believe that we should give protection to that minority of people who may have to sit up very late doing mental work which requires great concentration. If we narrow the provision to apply only to people in bedrooms, we may not achieve that purpose.

Lord Swinfen

I am wondering what is the meaning of "bedroom". There will be occasions when someone who has suffered an injury may not be able to get up the stairs to his accustomed bedroom and may have to sleep in a living-room on the ground floor, at any rate for a temporary period; or there may be a case where people have guests staying in a house and they are allowed to sleep in a living-room on a piece of furniture which will convert to a bed. Therefore, one would need to define the word "bedroom" if this amendment were to be accepted.

Lord Lucas

This is not an amendment with which we feel comfortable. We agree with my noble friend Lord Renton that other activities are undertaken within a house where the person undertaking those activities may feel entitled to do so in quiet between the hours of 11 and seven. We believe that we can rely on local authorities' discretion, the guidance that they will give and the quality of their officers to make sure that, in practice, the measurements are made in the most appropriate place in the house.

Baroness Gardner of Parkes

I believe that it would be wrong to restrict this to a bedroom. The bedroom might be tucked away in a quiet corner of the house but, because of the noise level one may not be able to enjoy normal living with friends and family or even just watching the television in another part of the house.

My noble friend Lord Elliott said that the environmental health officer would be looking round the house trying to choose the appropriate room in which to make the measurement. I do not believe that that would happen because environmental health officers are extremely practical and used to such matters. Secondly, the complainant would have very definite views on where they were when suffering the intolerable noise. Therefore, the complainant would say, "This is the room in which I am trying to sit and read but cannot do so because of the intolerable noise".

Another point which may have been overlooked by my noble friend Lord Elliott is that the noise must be 10 decibels above the local level of noise. This point was raised on Second Reading. A higher level of noise will be tolerated in a noisy, residential area because, as I say, the noise must be 10 decibels above the local level. Therefore, we need not worry about the consistency of measurement. I believe that this proposal would be unnecessarily restrictive. I appreciate the points made by my noble friends Lord Renton and Lord Swinfen which are extremely relevant. I hope that my noble friend will withdraw the amendment.

Lord Elliott of Morpeth

I return to my opening phrase in moving the amendment. Measurement should be related to disturbance. But I take the points which have been made that this may be too restrictive. In consequence, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 5 shall stand part of the Bill?

Baroness Gardner of Parkes

I should like to comment on this clause because it has been considered by the Delegated Powers Scrutiny Committee. I must put before the Committee the comments which it made.

I am aware that the Delegated Powers Scrutiny Committee raised two questions about the use of such powers within the Bill. The first relates to Clause 5. The committee asked for justification for the procedure by which the Secretary of State is to fix the permitted level of noise and a variety of other matters for the night noise offence.

The Bill provides that those are set by directions in writing issued by the Secretary of State. There is good reason for that approach. The measurement of noise can be a complicated and highly technical matter. As indicated by Clause 5(3), it is likely that the permitted level may need to be defined by reference to other levels of noise. That may involve taking more than one measurement; for example, we are considering setting the permitted level by reference to background noise, so that the permitted level—a level which the noise must exceed for an offence—is, say, 35 decibels, provided that the noise also exceeds the background level by 10 decibels.

The directions may include matters involving the location and period of measurement and also mathematical calculations. It may well be necessary, especially in the early days of the operation of the provisions, to make fairly frequent changes to some of those matters in the light of experience and developments in the field of noise measurement. These may also need to be made promptly. In those circumstances, we consider that directions, rather than a statutory instrument, would be the best way of providing for those matters.

I should like to draw the attention of Members of the Committee to the schedule contained in the Control of Noise (Measurement and Registers) Regulations 1976, which is also concerned with the measurement and calculation of noise levels. Although this is not exactly equivalent, it gives an idea of the complexity of the issues involved. Experience with that order has shown that a statutory instrument is not the most appropriate means by which such technical matters are specified. In view of those remarks, I hope that Members of the Committee will agree that Clause 5 should stand part of the Bill.

Lord Renton

Although I am one of the many Members of this Chamber who are against Henry VIII clauses and giving unbridled power to Ministers to change the law, I realise that there are certain, rather narrow exceptions in which it would be undesirable to have to wait for a matter to be approved by Parliament when the circumstances really require, even experimentally, a relatively minor change to be made. Therefore, I agree with my noble friend Lady Gardner of Parkes on the matter. I hope that the Committee will accept Clause 5 as it stands.

Clause 5 agreed to.

Clauses 6 and 7 agreed to.

1.30 p.m.

Clause 8 [Fixed penalty notices]:

Lord Elliott of Morpeth moved Amendment No. 11: Page 4, line 38, leave out ("is committing or has just") and insert ("has").

The noble Lord said: In moving the above amendment I shall, with leave of the Committee, speak also to Amendments Nos. 12 to 16. The purpose of this group of amendments is to face up to the enormous difficulty which could possibly be encountered by enforcement officers in a very rowdy and dangerous situation. If an offence is in the course of commission and still going on, because the noise which exceeds the permitted level is continuing, an offence has in fact already been committed. Therefore, the phrase in Clause 8(1) is a tautology.

Taken with subsequent references to giving fixed penalty notices, the words in subsection (1)— is committing or has just committed",

are clearly intended at least to imply that a penalty notice must be served immediately. Indeed, the Bill's promoters in another place gave much publicity to "on-the-spot" fines. However, as I see it, there is no practical necessity for that, although it might be very desirable from a complainant's point of view. There is some concern that such intention could place the safety of local authority officers, who, in a sense, will already have primed offenders by the service of a warning notice, in considerable danger. At the very least, it is likely to lead to more calls for police protection for those officers. That situation could be avoided by the proposed amendments. I beg to move.

Lord Lucas

We understand that there is concern that the Bill imposes an obligation on local authorities to serve fixed penalty notices immediately and that that could place officers in physical jeopardy. However, we consider that the amendments are unnecessary; and, indeed, that they would not achieve anything different from that set out in the Bill as it stands. Perhaps I may explain. I should emphasise, first, that the decision to give fixed penalty notices is entirely at the discretion of the local authority. Therefore, where the officer considers that the offender is likely to be violent or abusive, he may well decide that prosecution is the best course. In any event, we would not expect local authorities to elect to use the fixed penalty provisions where the noise was of a serious nature, because, in most cases, the penalties imposed by the courts are likely to be more suitable.

The deletion by the amendments of the words "is committing" [an offence] would be unfortunate. In the context of the Bill, those words are not tautologous; indeed, they make it quite clear that, where a local authority officer finds that noise above the limit is still being made, he is able there and then to give the offender a fixed penalty notice. It is important that that power should not be lost as I anticipate that, in the less serious noise cases, the giving of such a notice will have immediate effect.

However, where it seems likely that the offender will be violent or abusive, the officer will be able to conclude that it is not reasonably practical to deliver the notice to the offender. In those circumstances, Clause 8(2)(b) will allow the notice to be given to the offender by leaving it at the premises. As I have already said, I cannot see how the amendments would alter the position in any way. My further concern is that, by allowing the notice to be issued to the offender at any unspecified time after the offence has been committed, the sense of immediate action would be lost.

Baroness Gardner of Parkes

I share the concerns of my noble friend the Minister about where the amendments might lead. I have two further observations to make. First, my noble friend raised the question of the immediacy of the action that the Bill would provide. I wholeheartedly endorse the points that he made in that respect. Moreover, I would argue that the service of a fixed penalty notice at the time of an offence can only serve to reinforce the connection between the offence and the penalty. I am aware that a similar point was made in another place. I believe it to be a very valid argument. An offender receiving a fixed penalty notice through the post some days or even weeks after an offence has been committed will not be prompted to make such an immediate connection between the offence and the penalty.

I believe that the group of amendments now before us would not improve the Bill. Where there is a case of danger, as mentioned by my noble friend Lord Elliott, it is the practice for enforcement officers in such cases to ask a police officer to accompany them. However, as my noble friend the Minister said, there is the option of deciding to prosecute and, therefore, not face such a risk at that stage. Again, the matter was debated to a considerable degree on Second Reading. As I said, I believe that the amendments are not appropriate. I hope that my noble friend will feel able to withdraw them.

Lord Elliott of Morpeth

Having heard the response from my noble friend the Minister and, indeed, the remarks made by my noble friend Lady Gardner of Parkes, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 to 14 not moved.]

Clause 8 agreed to.

Clause 9 [Section 8: supplementary]:

[Amendments Nos. 15 and 16 not moved.]

Clause 9 agreed to.

Clause 10 [Powers of entry and seizure etc.]:

[Amendments Nos. 17 and 18 not moved.]

Clause 10 agreed to.

Clause 11 [Interpretation and subordinate legislation]:

On Question, Whether Clause 11 shall stand part of the Bill?

Baroness Gardner of Parkes

The Select Committee on the scrutiny of delegated powers also questioned the need for Clause 11 (3). I have to say that, on reflection, we agree that the subsection is unnecessary and will seek to amend it on Report. I am grateful to the Select Committee for noticing that point. I hope that Members of the Committee will agree that Clause 11 should stand part, bearing in mind the fact that we shall return to the matter on Report with a view to removing Subsection (3).

Clause 11 agreed to.

Remaining clauses and schedule agreed to.

House resumed: Bill reported with amendments.