HOUSE OF LORDS
MINUTES OF EVIDENCE
taken before the
Fookes, B (Chairman)
McIntosh of Hudnall, B
[Mr Allan Roberts, Counsel to the Chairman of Committees, in attendance.]
MR ALASTAIR LEWIS of SHARPE PRITCHARD, appeared as Parliamentary Agent for the London Local Authorities Bill.
There also appeared:
MR DAVID PRINCEP, Former Housing Officer, Camden Borough Council;
MR GARY BLACKWELL, Head of Litigation, Westminster City Council;
MR SIMON LLEWELLYN, Head of Private Housing Management, Condition and Adaptations, Department for Communities and Local Government;
MR TOM QUINLAN, HMO Licensing Policy Officer, Private Housing Management, Condition and Adaptations, Department for Communities and Local Government;
MR BERNARD WILSON, Housing and Land Division, Department for Communities and Local Government;
MS MARY STALLEBRASS, Head of Private Rented Sector Policy, Department for Communities and Local Government.
1. CHAIRMAN: Good morning, everyone. May I welcome you all to this meeting of the Committee. May I offer a particular welcome to the Promoters and the Agent. May I also introduce the Committee. I am Baroness Fookes, and I am chairing this morning. I am ably assisted by Baroness McIntosh of Hudnall and Lord Haskel. We also have the benefit of the advice of the Counsel to the Lord Chairman, Mr Allan Roberts. May I ask you, please, to introduce yourselves?
2. MR LEWIS: Good morning, my Lady. My name is Alastair Lewis. I am from Sharpe Pritchard, and I am the Parliamentary Agent for the Promoters of the London Local Authorities Bill. The Promoters are formally Westminster City Council, who promote the Bill on behalf of all of the 33 London borough councils - I say all 33; when the Bill was deposited, unfortunately, it was only 32 because the London Borough of Hounslow had not managed to comply with all the requirements approving the promotion of the Bill under the Local Government Act 1972. The Promoters introduced an additional provision to the Bill, which was accepted by the House, which brought Hounslow on board.
3. I hope that the Committee has in front of them the Filled Bill, which contains the amendments which the Promoters propose to ask to be made. We also yesterday produced an additional paper of further amendments, which if the Committee does not have we can circulate. If I can just explain, they are very minor drafting amendments to ensure that the text of the Bill is correct. I will not say anything more about those at this stage.
4. CHAIRMAN: But there is no substance? It is purely procedural.
5. MR LEWIS: Indeed. As we go through the Bill I will, of course, highlight any substantive amendments which we are seeking.
6. This is the Tenth London Local Authorities Bill, my Lady. The first was promoted after the demise of the GLC and became the London Local Authorities Act 1990. Since then, as I am sure you know, we have had nine London Local Authorities Acts plus two London Local Authorities and Transport for London Acts. I will be calling one witness definitely today to provide evidence in support of the clauses relating to powers of entry in the Housing Act. Those are two clauses which have attracted a government report, which is sustained and we have representatives here today from DCLG.
7. CHAIRMAN: Perhaps at this point I could say that we propose to take those two clauses first and then we will consider the Bill in the order so far as we are concerned with it, because we do not look at all the clauses but we will take them in the order in which they come.
8. MR LEWIS: Thank you. You have stolen my thunder - that was going to be my next suggestion.
9. I would like to circulate now, if I may, a bundle of documents which I shall be referring to throughout the proceedings this morning. They are mostly related to the Housing Act provisions. (Same handed in)
10. If we could start at tab 1, this is my attempt at distilling as best I can the provisions of the Housing Act 2004, which obviously is a very large piece of legislation, which we believe to be relevant for you this morning. I would like, if I may, just to read through this note so that we get a general grasp of the area that we are dealing with today. The Housing Act 2004, I should say, introduced a completely new regime to deal with housing conditions, and it covers both private and public sector housing. Local authorities have had regulatory functions in relation to housing conditions for many years. The previous major piece of legislation was the Housing Act 1985, much of which has now been repealed by the 2004 Act. Today we are mainly concerned with local authorities' powers of enforcement in relation to housing conditions and in particular local authority officers' powers of entry to residential premises.
11. As the note says, Part 1 of the 2004 Act deals with housing conditions. It introduced an evidence-based risk assessment procedure, the Housing Health and Safety Rating System - conveniently abbreviated, I think, to all practitioners' eyes to HHSRS - on which local authorities must base their decisions on the action to take to deal with poor housing conditions. The system relies on officers giving a "score" to certain types of defects found, adding up the scores and determining whether a "hazard" exists and, if so, whether it is a category 1 or a category 2 hazard. The main difference between a category 1 and category 2 hazard is that the local authority has a duty to take action in relation to a category 1 hazard and has a power to deal with a category 2 hazard.
12. Local authorities have powers to inspect premises to determine whether hazards exist, and that is in section 4 of the 2004 Act. If the local authority determines that a hazard exists, they can - or in the case of a category 1 hazard must, where appropriate - serve an improvement notice or take other enforcement action.
13. Where an improvement notice is served requiring action to be taken in relation to premises, the premises are called "specified premises". If there is a failure to comply with an improvement notice, the local authority can take action in default and that is under section 31 and Schedule 3. If the local authority are satisfied that there is a category 1 hazard which requires emergency remedial action, they can carry it out under section 40, and they must serve notice that they are doing so within seven days of starting. So they can start and serve the notice later.
14. However, in order to satisfy themselves that a hazard exists in the first place, we say, they must carry out an assessment first, and to do that, notice of entry needs to be served in advance. We will come on to that a little bit later, when we come on to the evidence.
15. Part 7 of the 2004 Act contains supplementary provisions, including enforcement provisions, and in Part 7 we have the powers of entry, which are contained in section 239 and include power to enter in order to carry out an inspection under section 4 or to determine whether any other function under Parts 1 to 4 or 7 should be exercised. The power can also be exercised if premises are "specified premises", which is the term I mentioned earlier.
16. Premises may not be entered by force under section 239 because section 240 provides the power of entry by force and that, as you would probably expect, is only on the warrant of a magistrate.
17. Section 243 sets out the authorisation procedure to be followed by local authorities in authorising individuals to exercise their section 239 power of entry, and it is section 239 and section 243 that we will be principally dealing with this morning.
18. If I can then take you to tab 2, that contains a copy of section 239, showing highlighted the amendments which we would like this Committee to agree to today. Obviously, the amendments which we are proposing to section 239, which is a national piece of legislation, would only have effect in London. Section 239 would stay as it is elsewhere.
19. The first amendments, you will see, are in subsection (5). Here we find the provision which ensures that before exercising powers of entry under section 239 generally, the housing authority have to give at least 24 hours' notice of their intention to do so. As it stands - and this is crossed out - as you can see, under the 2004 Act under section 239, the council have to serve their notice on the owner of the premises, if known, and on the occupier, if any. We are intending to switch it round so that any notice should be given to the occupier of the premises and, if there is no occupier, to the owner of the premises, and we will be explaining why a little later.
20. In subsection (6) we have a provision which, when read with subsection (7), enables powers of entry to be exercised without notice and, as the subsection stands at the moment, those powers can be exercised without notice for the purpose of ascertaining whether an offence has been committed under certain provisions in the Act. Again, that is a fairly standard provision in legislation which authorises powers of entry. Obviously, it is to ensure that the person who is liable to be prosecuted does not know in advance that the investigating authority is going to ascertain whether the offence has taken place. What we are doing is adding the new paragraph (b), which in summary would enable the housing authority to enter the premises if there was "imminent risk to the safety or health of the occupiers of the premises".
21. Let me move on to our proposed new subsection (7A). This is an additional provision which would allow the local housing authority to enter premises without notice again in cases where they have been invited in by the occupier of the premises to inspect the premises, which, as you will hear from the evidence, quite often happens, and the power can be exercised so long as it is exercised at a reasonable time and it complies with any conditions of the invitation or agreement of the occupier. Those are the changes that we ask the Committee to make in London in relation to section 239 and the powers of entry.
22. Section 243 is inextricably linked to section 239. Section 243 is a provision which places on the local authority obligations relating to who may authorise authorised officers to enter premises under section 239. As section 243 stands, powers of entry can only be exercised on the authority of an Assistant Director in the local authority or above, and the purpose of our amendment, which is subsection (3A), is to take that level of authority down just one step lower to enable a person who reports directly to an Assistant Director of a local authority to be able to give the authorisation to enter premises. This will, again, be explained a little later, and we have an example of an organisation structure of one of the London boroughs, which will give you an idea of who is responsible currently under the existing legislation and who would be responsible were this amendment to be made.
23. My Lady, that was all I was going to say by way of introduction to these two clauses and at this point, if I may, I would like to call to give evidence Mr Princep, formerly of the London Borough of Camden.
MR DAVID MICHAEL PRINCEP, Sworn
Examined by MR LEWIS
24. MR LEWIS: Mr Princep, your full name is David Michael Princep?
(Mr Princep) Yes.
25. And you are an environmental health consultant?
(Mr Princep) Yes.
26. You have a BSc Honours in Environmental Health and you have a Law degree as well, I notice.
(Mr Princep) Yes.
27. You are a Member of the Chartered Institute of Environmental Health and have been since 1972 and you have undertaken the HHSRS Assessors' course and HHSRS Enforcement training. You are a Member of the Chartered Institute of Environmental Health Practitioners and since February of this year you have worked as an independent environmental health consultant. You are currently employed as a consultant by both the Residential Landlords Association and as a Team Leader in a north London local authority.
(Mr Princep) That is correct.
28. A little bit more background, if I may. You have worked for over 15 years, from 1993 to January 2009, for the London Borough of Camden in the Private Sector Housing Team as a manager dealing with improving standards in the private sector through enforcement, grant assistance and education. You were instrumental in establishing the London Landlord Accreditation Scheme, which is a partnership of all London councils which accredits landlords and agents across London based on them attending a training course. Before then, from 1989 to 1993 you worked for the Government of Bermuda as an environmental health officer and then between 1984 and 1987 you were responsible for the enforcement of housing standards for Wolverhampton Metropolitan Borough Council.
(Mr Princep) That is correct.
29. Just as a bit of further background to Mr Princep's involvement, as I mentioned, he no longer works for the London Borough of Camden but when this Bill was deposited he certainly did, and he was the person who was instrumental in instructing me in coming forward with these provisions. That really explains his detailed involvement with these provisions, my Lady. Could you explain, please, Mr Princep, why local authority housing officers need powers of entry, briefly?
(Mr Princep) The powers of entry have traditionally been provided as a protection for officials against threats of trespass. There are generally four situations where an environmental health practitioner will visit premises, and that is normally in connection with a complaint from the occupier, owner, or occasionally from neighbours; to check the compliance with the legislation; to deal with issues which affect one premises which are coming from an adjacent property or a property in the vicinity, such as water ingress and general nuisance; and also for area improvements and area initiatives where the local authority have decided to improve the area or take some sort of action in the housing field.
30. We are probably going to focus on complaints this morning, so could you say a little bit more about the investigation of complaints?
(Mr Princep) Yes. Complaints against housing conditions are a significant part of the workload of environmental health practitioners. Certainly, the officer would need to visit the premises in order assess the condition of the property and to decide whether the issue that is being complained about is justified, actionable, or possibly even malicious. The current system of assessing housing conditions is using the HHSRS and, as has been explained already, that was introduced by the Housing Act 2004 and replaced the previous unfitness provisions. The HHSRS does not per se deal with disrepair. What the assessing officer needs to do is to see how that particular issue of disrepair actually affects one of the 29 hazards.
31. CHAIRMAN: This is the scoring system?
(Mr Princep) This is the scoring system, yes. Previously under the Housing Act we could deal with a leaking roof per se because it was disrepair. Under this system, what we would do is deal with the leaking roof but it would have to have some impact on one of the hazards, such as dampness or excess cold. It is a sea change. Obviously, the important change in this is that before it was basically looking at the quality of the property; now, when we do the HHSRS assessment, we are actually looking at the effect of the property on the health and safety of the occupiers or visitors to the property. So it is quite a fundamental change. The process is basically that you follow the guidance that is provided and you carry out a scoring mechanism whereby you look at the likelihood of an accident occurring or an incident occurring, and you multiply by the outcome, whether it is death or serious injury, and you come up with a score. As has previously been mentioned, if the score is over 1,000 it is what they call a category 1 hazard, which means it is mandatory, which means it is a serious risk to the occupier or visitor; if it is a category 2, below 1,000, then it is at the discretion of the local authority as to whether to take action.
32. MR LEWIS: Can you just explain the stages which the local authority enforcement team take in responding to complaints?
(Mr Princep) Yes. We would visit the premises as a first instance. We would investigate the issues that are the cause of the complaint and would also carry out a complete inspection of the property in accordance with the guidance. We would identify the cause of the problem, where possible. We would then assess whether the issue is actionable, i.e., whether it was formal action or informal action, and we would rely on the scoring mechanism of the HHSRS to come up with that. If the issue is serious enough for us to take action, then we would determine who was the responsible person for that particular problem and then we would take the appropriate enforcement action or otherwise, as the case may be.
33. Can you explain what remedies are available when complaints are substantiated?
(Mr Princep) The remedies range, obviously, from informal action all the way through to formal action and prosecution in the worst case scenario. The majority of the cases are dealt with through non-statutory action, are dealt with by what can colloquially be called informal action. For example, in Camden in 2008-09 they received 457 complaints specifically around property conditions but they only served 26 statutory notices. That is a quite a number of properties where either the visit showed that the problem was not serious enough to take action or informal action actually solved the problem.
34. CHAIRMAN: That meant that the officer concerned was invited in by the occupier?
(Mr Princep) Yes, yes, the officer would have been invited in. It is relatively unusual for officers to go into properties unless they are invited in.
35. BARONESS MCINTOSH OF HUDNALL: Can I just ask Mr Princep, when you talk about informal action, what range of opportunities does that offer?
(Mr Princep) If it is a tenanted property, it could be just phoning up the landlord and saying, "Can you deal with this issue?" or it could be through writing to the landlord informally or to the agent and saying, "This is an issue. Please let us know what you are going to do to correct the problem" and then, as we say, in most cases that does actually result in a satisfactory conclusion. If they do not then comply informally, we would clearly, if possible, go to statutory action.
36. LORD HASKEL: How do the council find out about the complaints? Is it the occupier who complains or is it the person in an adjoining apartment or flat? How does the council generally find out about this?
(Mr Princep) Both sources really. The majority of cases tend to be the occupier of the property concerned about their particular living accommodation or, in flatted accommodation, the common parts, which is basically the access, the stairs and the landing. We do get issues where neighbours will complain about some problem with a property. I had one last week where a neighbour was complaining about a hole in the roof from next door which was allowing pigeons to go in. By far the majority of them are from the occupiers of the property themselves.
37. BARONESS MCINTOSH OF HUDNALL: Can I just ask, is it normal practice in local authorities that any complaint is followed up, any and all?
(Mr Princep) Yes, yes. Certainly the people taking the complaint would pass it forward, and often a lot of local authorities now have customer care centres which would take the initial complaint and then pass it on to the officers, but some action would be taken on every complaint.
38. CHAIRMAN: Even if repeated and malicious complaints were made?
(Mr Princep) Dealing with repeated and malicious complainants is a difficult issue, particularly when they are talking about issues which could affect health and safety. Local authorities are reluctant to actually say, "You are a malicious complainant" but certainly we had one in Camden a few years ago who would complain every Friday afternoon about carbon monoxide to a property, and we had to make a decision that really, we just could not deal with this. There was no problem.
39. The problem was with the complainant.
(Mr Princep) Yes, very much so.
40. MR LEWIS: You touched on quite an important point there, my Lady, if I may say so because, as I mentioned, one of the aspects of the legislation we are promoting here is to do away with the need to serve notice on the owner of the property every time the local authority wish to go and inspect following receipt of a complaint. Mr Princep will come on to deal with this but what we will say is that, if we do have complainants who are making unsubstantiated complaints, it can often be tiresome, aggravating and annoying for the landlord to become involved in something which really has absolutely no merit at all but we will deal with that in a short while. Mr Princep, until recently, and in particular until the Evans case, which I will be coming on to shortly as well, what view was taken in relation to the status of initial visits where a complaint was being investigated?
(Mr Princep) The traditional view was that, when an officer was invited into premises, they were not exercising the powers of entry. As an invitee, he is not a trespasser and therefore no particular form of action was taken; he would just be invited in, make an appointment at a convenient time to visit the complainant, and then enter their property.
41. How did that approach benefit the tenant, would you say?
(Mr Princep) The benefit to the tenants was clearly that they could complain to the local authority without risk of the landlord being informed at a very early stage. They could arrange a mutually convenient time with the officer concerned so that if they did speak to the officer or the officer contacted them, they could say, "We will visit at your convenience." Also, it allowed the local authority to deal promptly with serious allegations of problems in a property.
42. Can you explain the position pre Housing Act 2004 and explain whether you thought it worked well. Did it give rise to many complaints from tenants and, perhaps more importantly, from landlords?
(Mr Princep) The principal Act prior to the Housing Act 2004 was the Housing Act 1985. There, the powers of entry were divided between several sections of the Act; it was not all combined in one section. It allowed officers to use the powers of entry, if need be, with various timescales. It was 24 hours for disrepair, HMOs, overcrowding and in improvement areas. So 24 hours' notice would have to be given if they did serve notice. In the case of slum clearance, they would give seven days' notice. The provision of warrants was only available in limited circumstances, and that was basically if there was a problem with overcrowding or if it was a house in multiple occupation, such as a bed-sit, or if there was what they call a Control Order problem where basically the local authority were going to take over the running of the property.
43. If we could just move on to paragraph 16 of your proof, it was relatively unusual then to have to serve a notice to gain access under the previous legislation - is that right?
(Mr Princep) Yes, it was very unusual. Notice would only be served if persuasion had failed, or if the property was clearly unoccupied, or if the occupier was a recluse, i.e., had just refused to let anybody in. We had a few cases along those lines. Even if the occupier was a recluse, the local authority would do all they could to try and gain access and in a way, it would help build up a relationship with these reclusive occupants.
44. Did these arrangements cause any problems?
(Mr Princep) I am not aware of any problems being caused or any cases coming to light from either the tenants or the owners of these properties.
45. If we move on to the position now, and we just leave aside for a minute the detailed provisions of the 2004 Act itself, can you just explain to the Committee what other provisions a local authority is governed by generally when they are taking enforcement action?
(Mr Princep) The principal provision is the Enforcement Concordat, which aims to promote good enforcement.
46. MR LEWIS: Could I interrupt you there? The Committee will find at tab 4 the text of the Enforcement Concordat.
47. CHAIRMAN: What status does a concordat have in law?
48. MR LEWIS: I do not think it has any legal status as such, my Lady. It is not a statutory document. The Concordat ranges widely across all types of local authority enforcement, not just housing, so it would include all types of offences ranging from food safety through to street trading, which you will be hearing about later. I cannot be absolutely certain but it is certainly endorsed by the Government and I am sure there will be dissent if I am wrong in that. I am not sure if it was drafted by a government department. I will quickly take instructions. It comes from the Cabinet Office.
49. CHAIRMAN: Does it have the status of the Highway Code? I am trying to find an analogy.
50. MR LEWIS: I think that is a fairly good analogy. The difference is that I do not think you can choose whether or not - well, I suppose you can choose whether or not you are going to follow the Highway Code. Local authorities can choose whether or not to sign up to the Concordat, and all London boroughs have. I can say that for certain.
51. LORD HASKEL: I notice the Concordat is dated March 1998. Did it need to be modified after the 2004 Act at all?
52. MR LEWIS: I do not think so, my Lord, because, as I said, this is not specifically related to the Housing Act. It ranges right across all local authority functions. I am not aware of it having been modified since then.
53. MR BLACKWELL: There is another piece of legislation that does apply. Essentially, if it is not complied with, a local authority may have an argument for abuse of process in relation to prosecution and also there may be a complaint to the Local Government Ombudsman. So it carries weight.
54. MR LEWIS: Mr Blackwell, as Head of Litigation at Westminster City Council, is much better aware than I am of the status of the Enforcement Concordat.
55. CHAIRMAN: Thank you.
56. MR LEWIS: Mr Princep, I was going to ask you to take the Committee to paragraph 97 on page 40 and read that out for the record, please.
(Mr Princep) Paragraph 97 says: "Before formal enforcement action is taken, officers will provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of difference, unless immediate action is required (for example, in the interests of health and safety or environmental protection or to prevent evidence being destroyed)."
57. So this in effect encourages the sort of informal action that you were speaking about earlier.
(Mr Princep) It encourages local authorities to consult with the person they intend to take enforcement action against before they actually go through the formal process.
58. At tab 5 you have also included the Enforcement Guidance produced by the Department in relation to the Housing Act 2004. I have to say that there is not really anything in there specifically to which I wish to draw your attention. The question of powers of entry is dealt with in Part 7, which you will find on page 32. Mr Princep is sure, but he has not been able to find the exact reference, that somewhere in the guidance there is a reference to the Enforcement Concordat, he thinks, encouraging local authorities to follow it. In a sense, that would imply, if he is correct in saying that, that informal action should be encouraged where possible.
59. CHAIRMAN: But you cannot find the precise reference?
60. MR LEWIS: We discussed it this morning outside in the corridor. I will leave it at that. Perhaps if the Department when they make their submissions - he has found it.
(Mr Princep) Yes, it is paragraph 2.17.
61. What page is that?
(Mr Princep) Page 9. "Local authorities are encouraged to adopt the Enforcement Concordat..."
62. With that in mind, can you explain how London borough councils generally deal with housing complaints, please?
(Mr Princep) In connection with this clause, I have spoken to the majority of private sector housing managers in the London area and the overwhelming majority of them use an informal approach as the initial method of dealing with problems, i.e. they do not go to statutory action immediately. Many have reported very high levels of compliance following this method but obviously all authorities do occasionally have to resort to enforcement, particularly because of the rating system applying to the health and safety of the occupants.
63. Notwithstanding all that, in cases where officers are invited in by the tenants to the premises to investigate a complaint, why do housing officers now feel the need to go through the formal requirement of service of a notice, including on the landlord?
(Mr Princep) Basically, section 239---
64. Is it because of the Evans case?
(Mr Princep) Yes, it is basically because 239 requires that notice be given to the owner and occupier of the premises.
65. MR LEWIS: My Lady, one of the reasons we are before you today, perhaps the main reason, is the implications of a case involving the London borough of Camden, which I can now explain. It is a case which was heard by the Residential Property Tribunal, which deals with enforcement issues under the Housing Act 2004.
66. In that case, a complaint was received by Camden Council from a secure tenant in a mansion block about the coldness of the flat. The decision of the Tribunal, by the way, is at tab 6 but perhaps if you just listen to my explanation and then you can go to it if you wish to. The Council were invited into the flat by the tenant to investigate, and the Council also notified the residents' association that they would be entering the common parts, obviously to gain access to the flat.
67. No notice was given to the freeholder or to the head lessee or to Mr and Mrs Evans, who were the underlessees. The Council found that there was a hazard and they served an improvement notice on Mr and Mrs Evans, who appealed against the improvement notice to the Residential Property Tribunal.
68. The basis of the appeal appears to have been on the facts, i.e. they did not think the property was too cold, and the Tribunal found in favour of Mr and Mrs Evans on the facts. However, the Tribunal also appear to have taken off on another issue off their own bat, the legal issue about whether the improvement notice was invalid due to the failure of the Council to serve notice of entry on Mr and Mrs Evans in relation to the initial inspection. They decided that the notice was invalid for those reasons.
69. The decision, as you will see, was given in August 2007 and after that Camden Council, because they saw this as being a particularly important issue which would affect the way they dealt with all other cases, sought leave to appeal the Residential Property Tribunal's decision to the Lands Tribunal, but leave to appeal was refused by the Lands Tribunal.
70. The Council took counsel's advice on whether that decision, i.e. the decision to refuse leave to appeal, should be challenged by way of judicial review and they were given strong advice that such an application for judicial review would be likely to fail. So we are left in a situation where the Evans case was left unchallenged.
71. I should mention that, being a tribunal case, of course, it does not have the authority of a High Court case, but I would also mention that, despite that, it has been followed by other Residential Property Tribunal decisions in England and in Wales, and I will be coming on to another decision in Wales shortly.
72. CHAIRMAN: Perhaps I could pose a question to you here. It seems that the original visit was an informal one at the request of the tenant.
73. MR LEWIS: I think that is right. Mr Princep, feel free to answer, because obviously you were at Camden at the time, although I doubt very much that you were the case officer involved. I think that was the case.
(Mr Princep) Yes. It is a complicated case because one of the grounds we appealed was that the facts reported in the Tribunal decision were not correct. Yes, the occupier invited the inspecting officer into the property.
74. CHAIRMAN: In your evidence you have already said that most of these informal visits result in a quite relaxed, shall we say, way of dealing with things and you never get to the enforcement notice.
(Mr Princep) That is correct.
75. But I notice when you were giving your evidence just now, we seemed to leap from the informal visit to the enforcement notice. Can you fill in?
76. MR LEWIS: In this particular case, yes. I would imagine that in this particular case, which, I think it is fair to say, is probably in a small minority of cases, the problem was considered by Camden to be serious enough to warrant enforcement action being taken.
77. CHAIRMAN: Why then did they not go for formal inspection before enforcement?
78. MR LEWIS: Do you know, Mr Princep?
(Mr Princep) I certainly was not the case officer there. My understanding was that there was an indication from the owner of the flat that they were not going to do it within a reasonable time. They were not going to put in the central heating within a reasonable time, therefore it went to notice.
79. BARONESS MCINTOSH OF HUDNALL: May I ask about the difference between category 1 and category 2? We understand that category 2 hazards are only dealt with at the discretion of the local authority. In the case of a category 1 hazard, is there a disposition where the hazard is designated as a category 1 to go for an enforcement route rather faster than might otherwise be the case, or are many of those resolved through informal processes as well?
(Mr Princep) Certainly, if you followed the legislation, you would have to take some action; you would have to take some enforcement action but certainly the local authority does exercise a little bit of discretion in allowing landlords reasonable time to carry out issues. Clearly, if the issue is severe - and the break point is at 1,000; we have had scores which have been 29,000 - if it is that serious, then we would go straight to the enforcement route, but, even with the enforcement route, there are certain options that a local authority can take. They range from a hazard awareness notice, which is basically just informing the responsible person, through improvements, through to prohibition. So there is a range of actions that a local authority could take once it has decided.
80. MR LEWIS: My Lady, I think the local authority's hands are tied to a certain extent because, as I said in the introduction, where there is a category 1 hazard there is a duty on the local authority to take action.
81. BARONESS MCINTOSH OF HUDNALL: That is the point I was trying to get at, what action is implied by the duty to take action. We have heard that there are two potential routes that a local authority could take, an informal or a formal route, and that there is a progression from one to the other. What I am trying to understand is, if the category 1 hazard has been identified - whether rightly or wrongly is obviously a matter for the Tribunal, but it was identified in this case, and I am just trying to understand whether the local authority had any option under the current legislation not to proceed to enforcement. Is that the only action that is implied, the category 1 hazard having been identified?
82. CHAIRMAN: In the Camden case, was it a category 1? Were they about to die from hypothermia?
83. BARONESS MCINTOSH OF HUDNALL: I think you told us that the score implied it was a category 1 hazard.
(Mr Princep) Yes.
84. MR LEWIS: I believe the duty is to serve an improvement notice in cases where there is a category 1 hazard.
(Mr Princep) The duty is to take some enforcement action, as I say, varying from the hazard awareness notice all the way through to a prohibition, depending on the severity of it. Clearly, following the Concordat, a lot of authorities will, before they serve a notice, go through what they class as a "minded to" exercise, which is what Camden does. It will not serve the formal notice immediately; what it does is it gives the landlord warning that they are going to serve a formal notice, tells them exactly what they need to do, and then gives them an opportunity to come back to the local authority to tell the local authority, "Yes, we will do the work" or "No, we will not do the work."
85. CHAIRMAN: Did that happen in this particular case which you are using as an illustration?
(Mr Princep) My understanding is that that did happen in this case.
86. MR LEWIS: It may be helpful if I just mention, my Lady, that we will be coming on to another Residential Property Tribunal case shortly, the Williams case in Wales. I can understand the point that you are making here but if the more recent cases were to be followed, even if after the informal visit Camden Council had then served notice on the owners and the occupiers where they were going to carry out a formal inspection, which resulted of course from the informal visit, and then after that formal inspection an enforcement notice of some sort was served, it would be open to the Residential Property Tribunal to find - and if the more recent cases are followed, they would find - still that the initial informal visit made at the request of the tenant was unlawful because no notice was given to the owner.
87. So in effect, the more recent case, the Williams case, where we had the situation where the tenant asked the council officer on to the property and the council officers go on without giving notice to anyone, just for an informal look, it has been found that that kind of action could invalidate the whole of the following proceedings, even if the initial visit was followed up by, if you like, a formal visit to inspect.
88. CHAIRMAN: I find that an extraordinary position.
89. MR LEWIS: If we could turn to the next tab, then you will see where we have that in the Williams case, which is a Welsh Residential Property Tribunal case. It is tab 7. If I take you to the third page, where the Tribunal reaches its conclusions, you will see there are three numbered paragraphs just above the decision. If we go up four lines to the end of the line which begins with the word "We" and read from there, it says: "We take the view that the days of informal meetings are over and that once the Local Housing Authority is aware of a problem which might result in Enforcement powers then any meeting at the property will be an inspection and the Act applies."
90. CHAIRMAN: This is a Residential Property Tribunal finding?
91. MR LEWIS: In Wales, correct.
92. CHAIRMAN: In Wales?
93. MR LEWIS: Yes. I do not mean anything by this but it happens to be a Welsh decision. It is under the same Act. Again, I must stress that these are not binding decisions but they do of course carry weight.
94. CHAIRMAN: Can they alter what appears to be the law, as I understand it?
95. MR LEWIS: I do not think they are altering the law. I think they are giving their view on what the law is.
96. CHAIRMAN: It sounds like it to me. However, we will go into this later.
97. MR ROBERTS: Mr Lewis, can I just clarify that? It seemed to me that that statement could be equally capable of being read simply in the context of that case, and that what it was actually saying was that the days of informal inspections and enforcement action being taken as a result of that inspection are over. In particular, looking down at the "In conclusion we recommend" at the end, I am not sure it is quite so clear that the Tribunal was saying what you are suggesting it was saying. If it was, do you happen to know the position whether this decision was appealed or not? Is it under appeal?
98. MR LEWIS: It is dated 11 June, so it is very recent and it was only brought to my attention yesterday or the day before. I do not know whether it is under appeal, I have to say.
99. LORD HASKEL: Could I just ask a question? On the Camden case, and looking at this case, how much of the action was due to a conflict between the landlord and the tenant as to who should put in the central heating? It seemed to me that there was an element of that in the Camden case but I do not know whether there is an element of that in this case. It seems to me that this could be part of the problem.
100. MR LEWIS: Mr Princep may be able to comment on the Camden case; I do not think we are in a position really to comment on the background to the Welsh case.
(Mr Princep) Certainly, legally, it would be the landlord's responsibility to install the central heating. It would be a defective lease, basically, for the occupier to be responsible for installing central heating. If I could just clarify on the point or add a bit about the Williams case, we only became aware of this case this week, and it was as a result of colleagues in Camden actually dealing with a case to the RPT where the RPT raised this particular case to them. They actually pointed the officers in the direction of this case and unfortunately we have not had a chance to contact the local authority to see whether they were going to appeal it.
101. BARONESS MCINTOSH OF HUDNALL: May I just clarify this? Would it be fair to say that the uncertainty that has given rise to these decisions or that now exists as a result of these decisions centres on the status of what we might for these purposes call informal visits and that your contention is that the legislation as it stands appears not to recognise that informal visits are an appropriate part of any process? Would that be fair?
102. MR LEWIS: I think that is part of the issue, yes. I think that is right, my Lady. I think the other issue which we have yet to come on to is whether actually it is necessary in any event to serve a notice on the owner in cases - I use the word "only" - where only an inspection is being carried out, so it is a preliminary stage, and where the landlord will eventually, if enforcement action is required, receive notice of that enforcement action in due course. We will have some figures about how many cases actually do end up in enforcement action being taken, and Mr Princep will give his views as to the advantages and disadvantages of serving notice on the landlord in all cases.
103. So yes, that is an issue and in a sense, that must go back to the drafting of section 239 itself, and section 239(1), which provides the background as to when the powers of entry are required. It says in cases where "the authority consider that the survey or examination is necessary in order to carry out an inspection under section 4(1) or otherwise to determine whether any functions under any of Parts 1 to 4 or this Part should be exercised in relation to the premises" and you could, I would say, interpret that in quite a wide way to ask why else you would be having an informal visit. Why else would you be going to the premises if it was not really to see whether there was a problem in the first place? Is that a fair summary, Mr Princep?
(Mr Princep) Yes, that is correct.
104. BARONESS MCINTOSH OF HUDNALL: On that point, can I ask Mr Princep if he knows whether either Camden - I imagine not Camden on its own but any representative body - anticipated these problems and lobbied the Government as this Bill was in preparation and going through its stages to this effect?
(Mr Princep) Certainly, when the decision came out, we were hoping that it was just---
105. BARONESS MCINTOSH OF HUDNALL: No, I am really talking about the 2004 Act. Was it anticipated by local authorities that there would be an impact of this kind as a result of the way this legislation was drafted and did they as a result attempt to persuade the Government that this was a poor piece of drafting?
106. CHAIRMAN: At the Bill stage.
(Mr Princep) At the Bill stage, no. Well, I cannot say for all of the profession but certainly, having spoken to a significant number of managers in London and to the CIEH, nobody foresaw this issue arising. What you basically have is section 239, the wording seems very similar to what the powers of entry were before, under the previous legislation, and at that time, you have to bear in mind, there were major changes to the legislation affecting the private sector in connection with HMO licensing coming in and with the introduction of the health and safety rating system. These were two major pieces of legislation, changing the whole way of working in the private rented sector enforcement field. So I think it slipped through. Certainly, I remember when the officer came back and said what had happened in his case, the initial view of everybody was that it was just a one-off, and then you read the actual section closely, and you could see a risk that that was actually the interpretation. We now have a situation where it has been followed in six other cases and so it now does seem to be the view of the RPT, and certainly this is the view of Camden and most of the enforcement officers that I speak to, that you do need to give notice.
107. CHAIRMAN: Given that a tribunal does not have quite the force of a court of law - I am not a lawyer but is that correct?
108. MR LEWIS: In the sense that its decisions are not binding on other tribunals when they are considering similar matters but---
109. CHAIRMAN: Has it been tested to the limit?
110. MR LEWIS: Certainly, as I mentioned, the Evans case has, to the extent that Camden's only option to try to challenge the decision was to appeal to the Lands Tribunal and leave to appeal was refused. As I said, counsel must have taken the view when advising Camden not to take the issue any further that the issue was clear-cut. Whether it was right or wrong in the view of Camden Council is a different matter but in legal terms he took the view that section 239 says this and that even if you went to the High Court to challenge the Lands Tribunal's decision to refuse leave to appeal, you would not get anywhere because they were right actually. So that provided the dead end, which is really why we are here today.
111. CHAIRMAN: But in answer to my question, it has not been tested to the limit?
112. MR LEWIS: The Camden decision, I would say, has. The Williams decision we do not know, and even if an appeal had been lodged by the local housing authority in respect of that decision, it would be some way down the line before we knew whether it had been tested to the limit because, clearly, if the local authority were unsuccessful in the appeal before what was the Lands Tribunal and is now not the Lands Tribunal but it has been given some other name, then they would be in the same position as Camden; their course of action if refused leave to appeal would be to go to the High Court, and obviously that would be some way down the line.
113. BARONESS MCINTOSH OF HUDNALL: May I ask one other point of clarification? In the Evans case you described a chain of ownership that was quite complicated. I think you said there was a freeholder, there was a principal lessee, there was a sublessee and then there was a tenant.
114. MR LEWIS: Yes, that is right.
115. BARONESS MCINTOSH OF HUDNALL: In the law as it stands, do each of those people count as an owner and do they all have to receive individual notification, or, for example, does the freeholder count as the owner under the current arrangements?
116. MR LEWIS: I believe it is all of them. The term "owner" is defined in the 2004 Act. It is section 262, I am told. If you just give me one moment... I think it is everyone with a freehold or long leasehold interest, and that excludes mortgagees not in possession, so obviously mortgage providers are excluded. "Owner means a person (other than a mortgagee not in possession) who is for the time being entitled to dispose of the fee simple", i.e. the freehold, "of the premises whether in possession or in reversion; and includes a person holding or entitled to the rents and profits of the premises under a lease of which the unexpired term exceeds three years." So in that case, if they each had a lease which had more than three years remaining on it, yes, they would be subject to a notice.
117. CHAIRMAN: Do you wish to continue your questioning?
118. MR LEWIS: If I may. Mr Princep, if you turn to page 6 of your proof, we have obviously dealt with quite a few of the points but turning to paragraph 30, about halfway down, you can start to give the Committee an idea of the numbers of notices which in the case of Camden have had to be served under the section 239 procedure. Can you give the Committee an idea of the number of notices served by Camden since January 2007, please?
(Mr Princep) Yes. Since 2007 Camden have carried out authorisations, i.e. the Assistant Director has authorised inspections, on 670 buildings comprising 2,429 premises.
119. So one can take it, looking at section 239 and the obligations for service, that if we assume that there was only one occupier per premises, at least 4,858 notices should have been served, because that is two times 2,429. So in minimal circumstances, where you do not have this complicated freehold ownership, and where you only have one occupier, which is presumably unlikely in most cases to apply across all premises, so the minimum number we would say is 4,858 notices would have had to have been served in relation to those authorisations. Is that correct?
(Mr Princep) That is correct, yes.
120. CHAIRMAN: But in fact, most of them were dealt with quite amicably and satisfactorily?
(Mr Princep) Yes. Yes, certainly the number of notices is relatively small compared with the number of authorisations.
121. MR LEWIS: I think there may have been a glut of notices served possibly soon after the Evans case in order to try to regularise the situation but can you give some figures - I am looking at paragraph 31 now - for 2008-09?
(Mr Princep) Perhaps I had better go back a little bit. Camden, in common with the majority of the London authorities, actually operates a sort of triage system whereby initial complaints come in, an initial assessment is carried out at that stage, and then those which can be dealt with on a much more informal basis are dealt with that way, others are risk-rated and then actually passed forward for the "full Monty" when it comes to enforcement.
122. CHAIRMAN: Formal inspection.
(Mr Princep) Formal inspections under the Housing Act.
123. Enforcement notice, et cetera?
(Mr Princep) That is right.
124. MR LEWIS: Let me make sure I am clear on this - under the triage arrangements, that can and perhaps always does involve an officer going to the premises and having this informal inspection in the first place?
(Mr Princep) That is correct.
125. You have used the word "inspection" deliberately, looking at the terminology of section 239.
(Mr Princep) That is correct. An officer will certainly visit in by far the majority of cases. I cannot guarantee that there are not some that can be dealt with over the phone, but in by far the majority of cases an officer will visit.
126. CHAIRMAN: If this full method of proceeding were to be for all cases which are now dealt with informally, would this have a substantial impact on manpower requirements and cost?
(Mr Princep) Yes, it would have significant impact.
127. MR LEWIS: We will be coming on to costs later, my Lady. Mr Princep, I am not sure we had an answer to the 2008-09 figures.
(Mr Princep) Sorry. Under the triage system they have inspected 457 buildings, and of those, 135 have been allocated for HHSRS assessment. In the same period they have had authorisations from the Assistant Director for 200 buildings and that has involved inspections of 764 premises. Now, there is a difference between the number, the 135 that were followed through or forwarded through from the triage system to the 200 that resulted, and that was basically because of a backlog and some work being carried forward from other years. The total number last year for authorisations under 243 is 200, and that involved 764 premises.
128. You have some figures for Haringey as well, do you not?
(Mr Princep) Yes, in Haringey they use the same sort of system and last year they dealt with under the triage system 1,129 premises and it resulted in, strangely enough, the same figure as in Camden, that only 26 actual enforcement notices were taken, so there there is an even more significant drop-off in enforcement activity compared with the number of complaints that were received. That may have something to do with the nature of the borough.
129. Can we go to another question now: can you explain why the section 239 procedure, say, for an initial inspection made at the invitation of the occupier is considered to be problematic? We have touched on this already but while you are doing that, perhaps the Committee can turn up tab 8, which gives an example which has been put together by Mr Princep of a possible case scenario of a typical residential block in Camden.
(Mr Princep) Yes. Certainly, every authority I have spoken to, and that is the majority of London authorities, find that the procedure is very burdensome. If we could go through this case scenario, this is a property which is relatively typical in inner London. Obviously there will be ones which are not this complicated but there is quite a large number of properties in Camden where there are over 100 units of accommodation. There are some that are a lot more complicated. What we have here is a five-storey building, and we have the top flat in basically a leasehold property, occupied as a flat in multiple occupation, i.e. it is a property converted into bed-sits. Then on the second floor we have two more flats and, going down, you can obviously see that there is a mixture, probably of houses in multiple occupation or flats in multiple occupation and owner occupiers, leaseholders who own the flats. That is certainly a very common arrangement in the London area generally. Basically, when we come down to the ownership and occupation, we have one freeholder who will own the whole building, we have one leaseholder, we then have the six flats all under separate subleases, and in total we have 19 occupiers. For the purposes of 239 we basically have this one building consisting of eight premises: seven flats plus the common parts, because the common parts are actually considered as premises.
130. If you turn over the page, you mention there that you assume it takes two surveys to carry out an assessment. Is that typical?
(Mr Princep) That is typical. It would be very fortunate if you could get through an inspection of a property this size just by one visit on one day, partly because of the complexity of the accommodation and also, the chances are you are not going to find all of the occupiers in. Even when you have given notice, you will have to then go through the procedure again and serve notice again to get into properties for those that you have not actually gained access. The wording of the section tends to indicate that even the properties that you have been into you should serve another notice on just to make sure there is no risk of ultimate action being shown to be void.
131. You summarise there the number of notices which might need to be served in this particular case. At the bottom, going back to my Lady's last question, you have an idea of the cost of serving notices.
(Mr Princep) That is correct.
132. Can you just take us through that?
(Mr Princep) What we basically have is a breakdown. We have worked on a fee of £50 per hour for the officer, which is less actually than the on-costs are but for ease of these calculations we worked on £50 per hour. To investigate the ownership and occupancy of all of the units of accommodation there, we have put it down as two hours' work. The preparation of the initial authorisation would be about an hour, and that would include not only the officer's time for actually preparing the document for the AD to sign but for the AD and all of the administrative procedures. The 24 hours' notice, we have said four hours, because we would have to do it twice. Preparation of notice authorisation is about an hour. Again, the 24 hours' notice once the notice has been served, because you have to go through the whole procedure again, you have to get authorisation once you have served the notice, and you then have to serve 24 hours' notice again to go back. So all together we worked out that the total cost at £50 an hour would be around £600, and that is possibly an under-estimate.
133. Thank you. If we could return briefly to paragraph 36, obviously, your conclusion there is that this is a burdensome task. Can you mention briefly cases of imminent risk of danger?
(Mr Princep) One of the problems which has been highlighted by section 239 is that there is no exception. Certainly the RPT cases tend to indicate that there is no exception to the 24 hours' notice, and certainly the legal advice we have had is that there is no exception to it. There is no exception even if there is an imminent risk to the health and safety of the occupier. If the occupier complains that there is a serious risk there, then technically, according to the legislation, you have to follow the notice procedure. You have to give the occupier and the owner 24 hours' notice. The Secretary of State is correct in stating that there are powers to enter at any reasonable time without giving 24 hours' notice but this only relates to carrying out works; it does not relate to the carrying out of the initial assessment of the risk.
134. MR LEWIS: My Lady, this is under section 40 of the 2004 Act, which I mentioned, which makes special provision about cases where there is an imminent risk of danger. It says, as I mentioned, that the council can go in and carry out works without giving initial notice, as long as they give notice within seven days of starting, but the problem that Mr Princep is trying to get over is that the council will not necessarily know that there is an imminent risk of danger and they say, and the advice that Camden have been given, is that in order to find out that there is an imminent risk, an inspection has to take place and a section 239 notice must therefore be served. One of the provisions we are asking the Committee to include today is, as I mentioned right at the beginning, to do away with the notice requirement where there is an imminent risk to health and safety. That is the point of us bringing this today.
135. BARONESS MCINTOSH OF HUDNALL: Can we just understand the kind of example? I think, Mr Princep, you mentioned a vexatious complainant earlier whose complaint was to do with carbon monoxide, but let us imagine that there is or is thought to be a faulty boiler in premises and that the faulty boiler is complained about by the tenant. Obviously, carbon monoxide poisoning does not wait around for inspections before it takes effect. What would be your action in the event that a tenant complained legitimately, not vexatiously?
(Mr Princep) The particular clause or the amendments that we are proposing, if they were accepted, we would be able to go into a premises, if invited in by the occupier.
136. But what would you do now, under the current provisions, with the existence of the Evans case?
(Mr Princep) It puts the local authorities in a very difficult position because they can certainly go into the property, take action and then make the property safe. We have powers to do that; we can do that. The problem with that is that any subsequent action we take is void because we have not given the 24 hours' notice. So if we go in and we carry out works, we cannot get that money back because the fact that we have not given the 24 hours' notice makes it void.
137. MR LEWIS: The danger therefore, am I right in saying, is that an appeal is lodged by the freeholder in those circumstances - it may well be that the council is absolutely right in doing what it did because there really was a problem but the freeholder could argue a technicality and say, "Well, you should have served a section 239 notice in the first place" and therefore somehow claim back.
138. CHAIRMAN: You are suggesting it is a Catch-22 situation.
139. MR LEWIS: Indeed, and thus prohibiting the Council from recovering the costs of carrying out the works because the initial action was void.
140. LORD HASKEL: Also, any improvement notice is not valid if the first inspection was not allowed. Is that your point?
141. MR LEWIS: Yes. Correct. I think this goes back to the Williams case as well. Even in cases where we have had an informal - and I will use the word - "inspection," even though we are calling it an informal inspection, it is still an inspection followed up by a formal inspection which has been given on notice and then followed up by an improvement notice.
142. BARONESS McINTOSH OF HUDNALL: Is "inspection" defined in the legislation?
143. MR LEWIS: I do not think it is.
(Mr Princep) Yes, it is.
144. I beg your pardon. I stand corrected.
(Mr Princep) It is certainly included in the Housing Health and Safety Rating System England rates. It is certainly in the Enforcement Guidance and in the Operating Guidance. The guidance obviously is not in legislation but it does detail quite clearly what the local authority must carry out. Obviously even in the guidance the Act does require us to have consideration of any guidance provided, so it is relatively detailed what needs to be done by a local authority.
145. BARONESS McINTOSH OF HUDNALL: Perhaps I could make clear why I am asking. From a very cursory examination of the Williams case, the sentence you read out said or implied that any visit constitutes an inspection. Is that correct?
146. MR LEWIS: That is the point I was trying to make.
147. BARONESS McINTOSH OF HUDNALL: But does the legislation say or imply the same?
148. MR LEWIS: There is no definition of "inspection" certainly in section 239 itself. The notes to Halsbury's Statutes are normally very, very good at directing you to definitions of terms used in individual sections. They are not directing me anywhere and I cannot see it defined anywhere in the general interpretation provisions at the back either. I think the answer probably is that it is not defined in the statute, which is the important document. It may be that in some guidance and other documents surrounding the 2004 Act there may be some indication as to what you should do when you carry out an inspection, and how the inspection should be carried out.
149. CHAIRMAN: The organisation, whose name we do not quite remember is, in effect, making a piece of case law by its interpretation of the main Act under which it is deemed.
150. MR LEWIS: I think we argue that in a sense you are right. Again I go back to this issue that the decisions of the tribunal are persuasive, but of course the more decisions that there are along these lines the more likely they are going to be followed. I was sent a couple of other Welsh cases this week as well, where in one of them it lists specifically the previous cases which have found along these lines, and so it is obviously becoming more and more persuasive.
151. CHAIRMAN: Really the core of your concern is that no distinction is now being made between what we will call the "informal visit," which might be the basis for subsequent formal inspections.
152. MR LEWIS: Yes.
153. CHAIRMAN: And that what was previously regarded as an informal visit now counts as a formal inspection and the whole paraphernalia of requirements then comes into force.
154. MR LEWIS: That is certainly a great part of our argument. In a sense, that part of our argument has really only burgeoned, I have to say, in the last week, since seeing the Williams case. We were going to come before you arguing, of course, for this clause anyway and with lots of evidence about how we see section 239 on its own as being unduly burdensome and creating difficulties for the councils and, also, we say - we have not got on to it - for owners who, going back to the issue about nuisance complainants, cause unnecessary concerns for landlords.
155. Just going on that point, is that one of the concerns you were going to raise, Mr Princep?
(Mr Princep) Yes, certainly. My concern is that this is another way of penalising the good landlords and benefiting the bad landlords. A bad landlord can use a simple administrative slip on behalf of the council to avoid taking any action, whereas the good landlords certainly do try to keep their properties up to standard. I have certainly had landlords phone me up to say that they cannot make an appointment at the due time that has been decided with the officer, and when you explain to them, "We're doing this because it is a requirement of the law but you have no right of entry at that time unless you do make your own arrangements," they get a little confused and on occasions a little angry, and want to know, "Why are the local authority telling me that they are going to inspect it and inferring that I am supposed to go along and yet I have no right of entry?" They have their own right of entry under the Landlord and Tenant Act, but they have to give 24 hours' notice, or it may be in their lease, but they do not have any rights to accompany the officer. Certainly I have had landlords phoning up and saying, "Why are you telling me this?" and they are even more confused when you explain to them, "We are not sure whether there is a problem" - whether it is validated, whether it is mischievous - but we could have to follow the procedure because it is a requirement of the law.
156. The legal issue there is that you serve notice on the owner, he thinks, "I had better do something about this," turns up at the premises the next day in accordance with the notice but is not allowed in by the tenant because he has no right to go in under the terms of the tenancy agreement. He is left standing outside in the rain, because he cannot go in himself with you, after having received the notice.
(Mr Princep) Yes.
157. CHAIRMAN: Are you continuing, Mr Lewis?
158. MR LEWIS: I am conscious of taking up a lot of time and I have not even started on human rights yet.
159. CHAIRMAN: Are you coming on to the conclusion?
160. MR LEWIS: I will come on to the conclusion. I think we have covered all the points in terms of the evidence but I am duty bound to address the Committee on human rights. That is going to take a little time, probably between five and 10 minutes, if I could have your forbearance on that.
161. CHAIRMAN: We are going to allow your human right to speak to us, yes!
162. MR LEWIS: I have to do it because we have a human rights report against us here. Clearly it is of importance.
163. CHAIRMAN: Right. Please continue, Mr Lewis.
164. MR LEWIS: First of all, perhaps I could mention the provisions of the European Convention on Human Rights which come into play in relation to sections 239 and 243. The first is Article 8, which is the right to respect for private and family life. The Article provides: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
165. The other provision which is potentially engaged, I would say, is Article 1 of Protocol 1 of the Convention, which is about protection of property: "Every natural or legal person is entitled to the peaceable enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
166. I should perhaps make clear from the start that we are not seeking to deprive anyone of their possessions.
167. "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
168. As is usual with this kind of Private Bill, the Promoters sought advice from the outset, before the Bill was deposited, from leading counsel, on the compliance of the Bill with Convention rights. Advice was taken from an eminent public law silk, Mr James Goudie QC, and he provided his opinion on 13 November 2007.
169. In relation to clause 21, which are the alterations to section 239, Mr Goudie said, "I consider these amendments to be Convention-compliant for the following reasons. As to the first amendment," that is, the removal of the need to serve on the owner, "the person whose Article 8 rights are engaged is the occupier, not the non-occupying owner. Article 8 requires respect for one's home, as opposed to property in which one does not live. Therefore removing the requirement that notice be served on the non-occupying owner does not interfere with Article 8(1) rights. Neither does removing this requirement interfere with Article 1 Protocol 1 rights; it does not deprive the owner of any property, nor interfere with his use and enjoyment of property."
170. "As to the second amendment," that is, removing the requirement to serve notice if invited on to the premises, "where the occupier agrees to the authority's entry, there cannot be any interference with his Article 8(1) rights."
171. "As to the third amendment," that is, no notice where there is imminent risk, "this involves an interference with Article 8(1) rights, but the interference is in my opinion justified under Article 8(2) by the need to protect the occupiers' health and safety."
172. Now, the clause in the Housing Bill which became section 239 attracted some initial concern from the Joint Committee on Human Rights in their Eighth Report of session 2003-04. I have given you an excerpt of that as tab 10, which has in turn reminded me of tab 9, which we have not covered and which will need to be covered, I have to say, by Mr Princep when I have finished on human rights.
173. The concern was framed entirely in relation to Article 8 rights and in particular the scope of the powers of entry under the Bill. If you could turn to paragraph 4.35, it says: "We are concerned that the wide and relatively undetermined scope for exercise of powers under clause 199, and the lack of safeguards in relation to them, may be insufficient to ensure Article 8 protection. In particular, we are concerned that the absence of a requirement for judicial authorisation of entry onto premises and the absence of specification of the level of internal authorisation required may allow for unjustified and disproportionate use of these powers. The absence of safeguards as to times of entry, numbers of persons involved, and the possibility of entry without notice in certain circumstances, is also a cause for concern in relation to Article 8. Authorisation to take photographs and make recordings in residential premises, raises particular concerns under Article 8, and requires additional safeguards. We have written to the government seeking further information as to the scope of the powers in clause 199, and the safeguards that will be applicable to their exercise. Pending a reply, we draw these concerns to the attention of each House."
174. The government responded by letter, explaining that, amongst other things, housing authorities would in all cases seek to arrange entry by consent. This did not satisfy the Committee.
175. Turning to the extract I have given you from the Tenth Report of the Joint Committee, which is at tab 11, if you turn to paragraph 2.24: "In our view, the Bill lacks sufficient procedural safeguards to ensure proportionate interference with Article 8 rights. In the absence of any guidance to local housing authorities, in codes of practice or otherwise, as to how and in what circumstances the powers in clause 199 can properly be exercised, we consider that the provision gives rise to a real risk of breach of Article 8 rights. In particular, we consider that, in the absence of judicial or other independent external authorisation of the use of these powers, there is a need for some provision, either on the face of the Bill or in regulations or guidelines, for senior-level internal authorisation of powers of entry under clause 199. We again draw these matters to the attention of each House."
176. The Committee were finally satisfied by amendments made in the Lords on committee stage. I refer you to tab 12, which contains extracts of the Twentieth Report, where the Committee concluded: "The amendments will mean that power to require the production of documents must be authorised in writing, by a deputy chief officer of a local authority. All but one of the powers of entry into residential premises allowed to local housing authorities under the Bill will also require authorisation by a deputy chief officer. We welcome these amendments to the Bill."
177. I would stress that at no time was any mention made of rights under Article 1 of Protocol 1. That may have been because the Joint Committee thought that the fact that notice needed to be served on the landlord was enough to assuage any concerns that they had - we do not know - but what is clear is that at no stage did the Joint Committee say that Article 1 Protocol 1 rights were engaged or might be engaged.
178. I have had the privilege of seeing the letter written to you by the Chairman of the Joint Committee, Mr Dismore, on 9 July this year and in his letter he says to you, my Lady, "The exercise of a power of entry into premises is an interference with the right of the owner of those premises to peaceful enjoyment of their possessions under Article 1 Protocol 1 ECHR. A requirement of a minimum period of notice before the power of entry is exercised is one of the procedural safeguards which contributes to ensuring that the power to interfere with that right is exercised in a way which is not arbitrary but is necessary and proportionate."
179. "I therefore share the concern of the Secretary of State to ensure that the interference with property rights as a result of the powers of entry in section 239 of the Housing Act  is both necessary and proportionate. Removing the requirement that the owner of the premises be given notice of an intended exercise of the power of entry makes it more likely that those powers of entry will be exercised in practice in a way which is incompatible with the right to peaceful enjoyment of possessions."
180. My Lady, I turn back to the advice of James Goudie on this issue that we received. I remind the Committee that he said, "Neither does removing this requirement interfere with Article 1 Protocol 1 rights; it does not deprive the owner of any property, nor interfere with his use and enjoyment of property."
181. Nevertheless, if, for the sake of argument, we were to work on the assumption that Article 1 Protocol 1 Convention rights are engaged, I submit that the evidence given by Mr Princep shows that any interference with property rights as a result of the power of entry as proposed to be amended by the Bill are (a) necessary and (b) proportionate. As to their necessity, I rely on Mr Princep's evidence. I remind the Committee that promoters of private legislation of course have to prove the need for legislation in any event.
182. As to whether the powers are proportionate, I would say that the clause was. The clause only deals with powers of entry to investigate or survey premises. Section 239 does not provide power to enter and actually carry out works. Mr Princep has given his views about whether service on the landlord is helpful. In many cases it would seem that it is not and can be counterproductive. If the Williams case is going to set a precedent, it would seem that even an informal preliminary triage visit at the invitation of a tenant could not be carried out without the formal service of a notice on the tenant, who had actually asked for it, and on the owner.
183. I would submit that it cannot be disproportionate to allow a council officer to enter premises without notifying the landlord if the purpose of entry is merely to inspect the premises at the invitation of the tenant to see if there is a problem. As has been made clear in the evidence, at least in the case of Camden, only a small proportion of cases actually proceed to formal action, and in all those cases the landlord would be notified in any event.
184. If I turn back to the text of Mr Dismore's letter, I would emphasise that he only appears to be concerned about the lack of notice to the owner. He does not express any views on the removal of the need to serve the tenant where the tenant has invited the council, nor does he say anything about the removal of the need to give notice in urgent cases.
185. I would also stress that Mr Dismore's comments are qualified somewhat. He says, "The power of entry makes it more likely that those powers of entry will be exercised in practice in a way which is incompatible with the right to peaceful enjoyment of possessions"; he does not say that they will be, and I hope the evidence you have heard will convince you that they will not be.
186. Before I move on to clause 22, I would just like you to look back at tab 9, because it was something I was going to ask Mr Princep to cover. We have not really said much about Section 243 yet. This is a provision you will remember which I mentioned at the outset which requires that authorisations must be given by an Assistant Director. I have given you a simple form of officer structure from Camden - if I gave you the full form, it would have lots of arrows pointing in all sorts of directions and it would be very complicated, so it is really just a straight top-down indication of where Camden sits.
187. There is the Chief Executive, the Director of Culture and Environment, and then we have the Assistant Director of Planning and Public Protection, who would be the appropriate officer under section 243 as it stands. As it says there, he is responsible for 252 staff, which, as I have said, if this were a more complicated diagram, it would be going off at this stage in all sorts of directions.
188. Under him is the Regulatory Services Manager. He would be the appropriate officer if clause 22 were to be allowed. He is responsible for 109 staff.
189. MR LEWIS: Very briefly, Mr Princep, can you give the Committee an indication of the experience of the person who is actually holding this position at the moment in Camden?
(Mr Princep) This is the Regulatory Services Manager? This is occupied by an officer who has been in a senior management position in Camden for four years. He was appointed to the current post in December 2008. Prior to that he worked in Westminster as a Senior Policy Officer and prior to that had nine years' experience as a senior manager in the energy industry, so he has quite a lot of experience of managerial responsibility.
190. In terms of the person who actually carries on the functions at the moment, the Assistant Director, do you have any comments as to whether you think it is appropriate that he should be the person who is authorising the powers of entry at the moment, not just in terms of his job description and his experience of these matters but also his availability to do it?
(Mr Princep) Yes. The Assistant Director of Planning and Public Protection - you will have to excuse me; I am not sure now how many Assistant Directors there are because they have had a restructure since I left, but I think there are four or five of them covering Culture and Environment, which is a vast area. The particular Assistant Director of Planning and Public Protection has a very wide area, including development control, forward planning, urban design, King's Cross redevelopment, all the regulatory services, all the customer support team, building control. So he has a very wide area and he is there to provide strategic direction and framework to the department. He would be the officer who would, on his particular expertise, be liaising and attending meetings very much outside of the local authority on behalf of the authority. His availability is problematic. Certainly, to try and get authorisation from an Assistant Director if it is an urgent case is very difficult because he will be out of the authority for quite a significant amount of time and the majority of his time will be dealing with strategic issues in conjunction with his colleagues and other Directors.
191. Can I just mention another issue - I am sorry to divert but I think it is important - on section 243, again arising from the Williams case, or it may have been one of the other cases I read. To try to get over the problem of having the Assistant Director authorising a large number of powers of entry, several authorities, it is fair to say, have gone down the line of saying, "Actually, under section 243, in the way that we conveniently interpret it, one authorisation from the Assistant Director for each housing officer is enough generally to allow that housing officer to enter any premises he wants to." Is that right?
(Mr Princep) Each authority obviously has its own legal opinion on this and that is a decision of certainly some of the authorities prior to the Williams case, but Camden has always had the opinion that it needs to be with individual premises.
192. So Camden has an authorisation for each individual case. Following the Williams case, I suspect a number of authorities will be doing the same.
(Mr Princep) Yes.
193. BARONESS MCINTOSH OF HUDNALL: One point of clarification which is not directly relevant to what Mr Princep has just said but bears on all of this: where you have a complaint from a tenant, other than in cases where the local authority is itself the landlord, would it be fair to assume that the tenant is resorting to the local authority for remedy because he or she has failed to engage the landlord's attention on the matter?
(Mr Princep) I have no figures to support that but certainly, anecdotally, and from my experience, the majority of the complainants will have contacted the landlord or the agent - usually the agent - and no action will have been forthcoming from that contact, or they are dissatisfied with the response.
194. The point I am trying to get at is, going back to the point of notifying a landlord, there may be an actual or an implied dispute between the landlord and the tenant already going on before the local authority is engaged. Would that be likely to be the case? I do not want to lead you; I just want to ask you.
(Mr Princep) Certainly that does happen in some cases, that there is a dispute between the landlord and the tenant, and some of them can be very difficult cases to deal with, particularly if you have statutory tenants.
195. MR LEWIS: Following on from that, would it be fair to say that in some cases where there was not a pre-existing landlord-tenant dispute in question, the service of an official notice by the local authority on the landlord out of the blue for an informal visit, or informal inspection - I will carry on using that word - might actually create a dispute?
(Mr Princep) That is very much the case. Certainly we have had one or two landlords very concerned that they have had this notice and did not know what they were supposed to do with it. I am quite sure that, in some cases, some of the bad landlords will use this as a way of intimidating the complainant. I am particularly concerned following the Williams case that this seems to also not just apply to complaints but also to HMOs and dealing with HMO licensing.
196. For the benefit of the Committee, HMO stands for house in multiple occupation. It is a special type of residential premises which requires to be licensed by the local authority.
(Mr Princep) Certainly the requirement to give the owner 24 hours' notice before we inspected or visited a house in multiple occupation can in some cases, because of the vulnerability of the occupiers, i.e. they may well be immigrants or illegal workers or the landlord may put some significant pressure on the tenants to move out, it can create a lot of problems, or could create a lot of problems. There has been a report by the Citizens Advice Bureau and the Chartered Institute of Environmental Health about what they call "retaliatory evictions", where currently the legislation does not prevent a landlord evicting a tenant legally, following the procedure, but resulting from a complaint to the council. There is nothing preventing that tenant being evicted. In all fairness, the Rugg review says there is very little evidence of that but I am sure that in some cases, if we give the 24 hours' notice to a landlord, he will use that as a way of intimidating the tenants.
197. MR LEWIS: That leads on to what I promise will be the final part of my presentation on these clauses, which is to deal with the human rights aspect of clause 22, which is the level of authorisation. In his opinion James Goudie QC said, "It seems that s.243 was included in the Housing Act 2004 in its current form partly as a result of concerns expressed by the Joint Committee on Human rights as to the absence (prior to s.243's inclusion) of specification of a senior level of internal authorisation required for powers of entry to be exercised. The Committee viewed such specification as necessary in light of the absence of any requirement of judicial authorisation of authorities' entry powers."
198. "The London Borough of Camden now finds that the current requirements of s.243 for authorisation by a deputy chief officer impose a hefty administrative burden. It currently requires 200 such authorisations each month." That is going back to the time when I said there was a glut of them after the Evans case.
199. "In my opinion, the relatively minor amendment contained in the clause will not render the Housing Act 2004 incompatible with Convention rights. Authorisation may still be given only by a restricted number of designated individuals; and it is difficult to see any real protection of Article 8 rights which is removed by the amendment."
200. Clause 22 is the only clause in the Bill which has attracted an adverse human rights report from the Minister, Baroness Andrews, and she reported on 24 January 2008. If I may just very briefly turn to that and remind the Committee of what she said - I am not sure if you have her report in front of you - in paragraph 4 of her report she says, "Section 243 of the Housing Act 2004 was carefully drafted to take account of the European Convention on Human Rights in terms of intrusion into someone's property or home. A key consideration was the independence of the person authorising the entry to the property, and accordingly section 243 specifically requires a deputy chief officer - a post defined under section 2 of the Local Government and Housing Act 1989 - to provide authorisation. Allowing a person that reports directly to the deputy chief officer to provide authorisation potentially reduces this independence and it may not be compatible with the European Convention on Human Rights."
201. Two points arise from that. The first is to question what is the relevance of the fact that the post is defined in the Local Government and Housing Act. I do have a copy of section 2 which I could circulate but I am not sure it is necessary. It defines "deputy chief officer" in subsection (8). It just so happens that deputy chief officer happens to be the lowest level given a definition in that section. I am not aware of any other existing legislation which specifically defines levels of authority in local government, so my mind veers towards wondering if "deputy chief officer" was chosen for the sake of convenience, rather than genuine human rights reasons.
202. Furthermore, referring back to the report, Baroness Andrews focuses on the independence of the officer as being the main concern. I have to say I do find it difficult to discern why it is thought that a deputy chief officer meets the threshold but somebody reporting to him or her may not. Lastly on the report, it is not exactly decisive in what it says, i.e. it "potentially" reduces this independence and it "may not be" compatible with the Convention.
203. When the Housing Bill was introduced in December 2003 in the Commons there was no equivalent of section 243 included, as I think we have probably explained already. So, for a start, it is interesting to note that the Government Minister in charge of the Bill at that time saw fit to make a statement that the Bill was compatible with Convention rights despite the absence of 243.
204. As I have mentioned, the Joint Committee first reported in its Eighth Report, 15 March 2004 and, as they pointed out, "in order to be justified under Article 8.2, powers of entry must be clearly defined so as to comply with the requirement that they be in accordance with law and must be subject to sufficient safeguards so as to ensure that they are necessary in a democratic society and proportionate to the aim they pursue. The range of circumstances in which the law allows powers of entry to be exercised, the procedures for authorisation of entry to premises, the number, length and scale of entries, searches and inspections, and the times at which they may be carried out are all relevant to assessing their justification under Article 8.2."
205. I have already read their conclusions, which included: "In particular, we are concerned that the absence of a requirement for judicial authorisation of entry onto premises and the absence of specification of the level of internal authorisation required may allow for unjustified and disproportionate use of these powers."
206. The Minister at the time, Mr Hill, responded by letter to a number of questions raised by the Joint Committee in relation to the Bill. The letter was appended to the Tenth Report, which you have in the bundle. On powers of entry a number of points were made but in particular Mr Hill said at paragraphs 47 and 48, question (f): "What level of internal authorisation is it envisaged would be necessary for powers under clause 177?" Answer: "This will be a matter for the local housing authority. We do not intend to give guidance on the level of internal authorisation for notices under clause 199." Question (g): "What numbers and ranks of officials will be authorised to enter premises under clause 177?" Answer: "This will be a matter for the local housing authority. We would expect the number of officials authorised to enter premises under clause 199 will depend on how many it will take to properly inspect the building in as short a time as possible so as not to intrude any longer than necessary. Again this will be for the local housing authority though and will depend on their resources and the circumstances of the particular case."
207. So I would say that, despite the Joint Committee's initial concerns, the Government were prepared to defend that position at this juncture.
208. As already mentioned, this did not satisfy the JCHR, who say, at paragraph 2.24 of the Tenth Report, which you also have: "We consider that, in the absence of judicial or other independent external authorisation...there is a need for some provision, either on the face of the Bill or in regulations or guidelines, for senior-level internal authorisation."
209. As mentioned, the next Joint Committee Report is the Twentieth and by then the Bill had made a great deal of progress and completed its report Stage in this House on the same day. In the appendix to the Twentieth Report, which I think is in the bundle, is a letter from Mr Rooker, as he then was, in which he says at paragraph 10: "We have tabled an amendment which introduces a new clause that will require an authorisation for the purposes of certain provisions of the Bill to be given by a senior local authority officer. That officer would be a deputy chief officer (within the meaning of section 2 of the Local Government and Housing Act 1989) whose duties are relevant to the function for which the authorisation is to be given, or the officer to whom the deputy chief officer reports or is accountable in respect of that function. The new requirement would apply to the exercise of any of the powers of entry under the Bill, except one, including those in clause 203, and it would also apply to the power in clause 199 to require the production of documents."
210. As I said, the Joint Committee declared themselves satisfied with this.
211. There is no explanation in any of what I have said to be found as to why the level of Deputy Director was chosen. There is no reference to European or domestic jurisprudence to explain it, and I do not believe there is any.
212. In his recent letter to you, the Chairman of the Joint Committee concludes: "Therefore, I share the concern expressed by the Secretary of State in her Standing Order 98 report on the Bill that allowing a person who reports directly to the deputy chief officer may not be compatible with the European Convention on Human Rights. Broadening the class of officer who can authorise entry into premises would remove one of the important procedural safeguards in the Housing Act 2004 which was specifically inserted to make it more likely that the wide powers of entry in section 239 of that Act would be exercised in practice in a way which is compatible with the right to respect for private life and home in Article 8 ECHR."
213. If I may deconstruct that briefly just a little, first, again, the Chairman carefully says that our clause may not be compatible with the Convention; he does not say it will not be compatible. I have to say that the next sentence is very sweeping, and I would urge caution when reading it. I think it is unfair to say that our clause would remove one of the important procedural safeguards. That is simply not the case.
214. Mr Dismore also says in the first main paragraph of his letter that the effect of the amendment is therefore to widen significantly the range of officers who can authorise entry into premises. I refer the Committee back to tab 3, in which we set out section 243 as proposed to be amended. If you look at proposed new subsection (3A) (a) and (b), these place significant restrictions on the pool of people who can be authorised.
215. Nevertheless, I have to say, if the Committee were minded to restrict the number of people who could be authorised under this clause a little further than we have provided, the councils, I am instructed to say, would have no difficulty if there were a further amendment to this provision which restricted the number of additional people who could be given authorisation to just one extra person per council. In other words, there may be a number of people who do report directly to the Assistant Director as things stand. Our amendment does not make it clear; in essence, all of those people could effectively come within our 3A but we would be happy, if the Committee were minded to do so, to accept an amendment which restricted the number of people who would fall within 3A in each council to one person, because clearly Mr Dismore has raised an issue that the sheer numbers of people who may be authorised could be significant.
216. CHAIRMAN: You would be reasonably satisfied if (b) and (c) were not included - or am I putting words into your mouth?
217. MR LEWIS: I think we would be happy but I think that would be an extension of the scope of the Bill potentially. I think they provide an additional protection. Clearly, if the Committee were to go along those lines, I would have a discussion with Mr Roberts about the drafting but my instant reaction is to say that (b) and (c) are there to provide additional protection. If we took it away, that could be an extension of the scope of the Bill.
218. Just to conclude, the Promoters do not dispute the need for there to be some requirement as to the level of authority, nor do they dispute that the person in question should be of a senior level and independent. What they say is that the level chosen is wrong; it is too high by one, and that the evidence demonstrates that the next person down in the chain has the relevant experience, seniority and independence.
219. My Lady, I gave an indication that we may be half an hour to an hour on this clause. I am afraid I have far exceeded that, but those were all my submissions on clauses 22 and 23.
220. CHAIRMAN: Thank you, Mr Lewis. Can I just enquire whether either of my colleagues wants to put any further questions? If not, I know that Mr Roberts wants to say something.
221. MR ROBERTS: I have two questions for Mr Lewis. We have heard on clause 22, if I understand it right, that part of the need for this clause stems from the belief that an authorisation has to be given in relation to individual premises, or at least, some authorities believe that. Are you able to explain why that view is taken? I am looking at section 243 and I cannot understand why some councils take that view.
222. MR LEWIS: Why some councils take the view that there should be an authorisation for each premises?
223. MR ROBERTS: Yes. In other words, do some councils take the view that you cannot just authorise somebody per section, so that when it says "This section applies to any authorisation given for the purposes of any of the following provisions," which on the face of it allows you to authorise one personally generally for the purposes of those provisions, why do some councils take the view that you have to be more specific?
224. MR LEWIS: I am just reading through the section, if I may. First of all, in the light of the decisions that have been given by the Tribunal, certainly an element of extreme caution has to be given in the interpretation of these sections to avoid the sort of problems that have been encountered as a result of the Tribunal's decisions, including Williams, which of course itself says that there should be a different authorisation for each property.
225. The argument that I would make would be that section 239 does not of itself of course say that the exercise of each individual power of entry needs to be authorised under section 243. I agree that but I am not entirely sure that section 243 anywhere makes it clear - to me anyway - that its purpose is to allow a general enforcement authorisation to be given, and that is certainly the view that the Tribunal in the Williams case took and, having read through the Joint Committee on Human Rights' reports on this section, where they were particularly keen to protect the right to the private lives of the tenants, I would have thought that what they were asking for was a provision which allowed authorisation in each individual case.
226. If I can perhaps use an analogy, the JCHR were concerned that there was no court authorisation for powers of entry being exercised from the outset. They seemed to accept the proposition generally that the local authority could exercise powers of entry but they then said when exercising those powers of entry, there has to be senior-level authorisation. The authorisation that you would get from a court would be for an individual case. I have had reason to appear before a magistrates' court and found that the first section of proceedings is taken up with people from the gas board coming to get warrants from the magistrates to enter premises to check or remove meters. Of course, that is done for each individual premises. They do not go along to the magistrates' court and say, "My name is Joe Bloggs. I am a nice chap. Can I have authorisation to enter any premises I like, please, to take out electricity meters." I would use that as the analogy and say I think if the Williams case goes to appeal - and, as I say, I do not know whether it will - I am sure that that kind of argument is likely to be raised and I think it would stand a fair chance of success.
227. MR ROBERTS: Thank you. The second question is on clause 21. Leaving aside the Williams case and assuming just for the moment that the state of the law is that you cannot base formal enforcement action on what I would describe as an informal inspection, I am trying to grasp - leaving aside Williams - what provision of the 2004 Act councils think prevents them from, having done an informal inspection and thought there may be a hazard, then going back and doing a formal survey and examination under the Act? So in the case firstly of a category 1 hazard, and secondly a category 2 hazard, what in the Act stops them doing that?
228. MR LEWIS: I think I can answer that immediately, and if Mr Princep disagrees with me, he will let me know. I do not think there is anything to stop that from happening in the Act. I do not think there is anything which would stop the informal triage meetings taking place under the Act as it stands if they are invited on to the premises. You know the problem I am now going to mention: all that is thrown into doubt with the Williams case in particular whereby it says actually, it may well be that you think you have the power to do that but there is a difference between having the power to do it and then showing that it has actually been done in a proper fashion, i.e. following a section 239 notice. I know it is very difficult to separate the argument from the Williams case, and the Evans case actually.
(Mr Princep) My understanding, having had some discussions with colleagues about this particular point is that, although they call it a triage, basically, it is a step in the process, because a triage is a way of filtering out those that are going to go for formal action and those which are going to go for informal action. Section 239(1) says that you need to use the powers of entry when you are determining whether any function under the Act is going to be utilised, and the argument is that by the triage, by the pure fact that it filters out some and filters some into the enforcement action, you are carrying out an inspection or survey. That particular inspection may not be used to do the informal notice but it is an inspection in connection with determining whether you are going to carry out any function, so it is a way of directing that particular complaint. That certainly was the discussion I had with colleagues about this, that it could be argued - and certainly the Williams case seems to have argued that particular point - that the triage system is a way of determining whether any function needs to be exercised.
229. CHAIRMAN: Thank you. Any further questions from the Committee? If not, thank you very much, Mr Lewis and you, Mr Princep, for the information you have given us this morning.
The Witness Withdrew
230. We are aware that the Government has expressed reservations about this part of the Act, Part 5, so I am proposing that we call the departmental representatives.
231. MR LLEWELLYN: I would like to introduce my colleagues. I am Simon Llewellyn and I am the Head of Private Housing Management, Condition and Adaptations in DCLG. To my left is Mary Stallebrass, Head of the Private Rented Sector team; Bernard Wilson, Head of Housing, Legal Division; and Tom Quinlan, a Policy Officer within Mary's team.
232. CHAIRMAN: Thank you very much indeed. We understand the Government are opposed. Perhaps you would like to put forward the case.
233. MR LLEWELLYN: I will make a statement rather than seek to answer the case which has been put.
234. The existing powers of entry provisions in the Housing Act 2004 provide local authorities with extensive powers, as we have heard, to enter properties and take immediate enforcement action in those cases where condition and management of private rental property fall well below the standards.
235. The exercise of powers of entry is a sensitive matter and, as we have just heard and been discussing, during the passage of the Housing Bill through Parliament concerns over the circumstances in which the provisions could be used and the relevant safeguards associated with their use were raised by the Joint Committee on Human Rights. The provisions as we now see them in the 2004 Act have been carefully drafted in order to ensure compliance and, as we have heard, in response to the correspondence, so that we comply with Article 8 of the European Convention on Human Rights, namely the right to respect for private life and for the home.
236. It was these concerns that led to the requirement that, in carrying out duties under the Housing Health and Safety rating system and the licensing of the houses in multiple occupation under the 2004 Act, a minimum 24-hour notice must usually be given to the owner, if known, and occupiers of the property prior to an inspection. This notice, as the council has suggested, should therefore be given after an informal visit if one has taken place and if the authority believes an inspection is warranted and the ongoing informal handling of the case is not realistic.
237. Having said that, the legislation makes full provision for those circumstances where emergency work is needed. The Housing Act 2004 makes clear in section 40 that the 24-hour notice period does not apply in cases which involve imminent risk of serious harm to the health and safety of any occupier of the property, and the example of the carbon monoxide case was given, or where it is suspected that an offence has been committed in relation to HMO licensing - that was the example of the migrant workers.
238. As you have noted, the use of the latter powers is also subject to authorisation by a deputy chief officer under the existing legislation. As was set out in Baroness Andrews' letter, we think it is entirely appropriate that where a decision is taken to effectively override the provisions of the European Convention on Human Rights, this decision is distanced and taken at a more senior level by someone who is not directly involved in the case.
239. The current proposals in the draft Bill would mean that a local authority could enter a range of premises on their own authorisation even if no hazard had been identified or where no licensing offence had occurred. This would mean that landlords would not be informed of activities of the local authority for which they would be expected to pay and which was taking place in their property.
240. At the same time, the right to quiet enjoyment and privacy of any other residents of the premises affected would also have been removed.
241. Both these outcomes, we believe, go directly against the provisions in the European Convention on Human Rights. Our clear advice therefore is that these proposals are in conflict with Article 8. I have to admit that we have not had the advice of the QC shared with us but it does conflict with Article 8 of the European Convention and we would ask that they be removed from the Bill.
242. We would also note, having been shown the Welsh case that we were talking about, that the question in relation to this would appear to be that authorisation had not been secured within the local authority to go in and undertake the work and that the local authority officers were unable to prove and then admitted that they did not have the required authority.
243. CHAIRMAN: Thank you. Is that the conclusion of your case?
244. MR LLEWELLYN: It is.
245. CHAIRMAN: I think we can make a start on questioning. I should be interested, if I may, to have your reaction to the suggestion that, whilst you did not need authority in circumstances of urgency to carry out work, and you could go straight ahead, I think the point made by Mr Princep was that it might then make the local authority unable to reclaim payment because they had not given the required notice of 24 hours. I do not think you dealt with that in your statement.
246. MR LLEWELLYN: I did not, and that was not a point that had previously been put to us. I have to say that that is not the point that has been driving the amendment as proposed in the Bill. The issue of who would pay for the works has not been one that has been discussed either with London local authorities or at any point in time here.
247. CHAIRMAN: But you have all been sitting there all morning listening to all this.
248. MR LLEWELLYN: We have, and I would say it is not clear that that is the case currently, and we would have to follow that through further. I am willing to consider any cases that have been offered but I do not think any actual case was provided in relation to that.
249. LORD HASKEL: Could I put this in more general terms and ask, is there any reason why the legality of the inspection and the necessity of doing improvement should not be separated? Looking at the Welsh case and the other case, the grounds for not doing the improvement is because the inspection was not done according to the regulations. Is there any reason why the two should not be separated?
250. MR LLEWELLYN: I do not quite follow that point. I am sorry.
251. LORD HASKEL: If you look at the Welsh case in tab 7, the reason why they say the improvements do not have to be done is because the inspection was not carried out according to the rules. Is that not a technicality? Could the two not be separated?
252. MR LLEWELLYN: That potentially could be a technicality but also the point at issue here was I think whether the urgency of the work also was important. Here I think there is no suggestion that the works had such urgency that 24 hours' notice could not have been given. That I think is the important point here, in terms of the notice provision in respect of considering whether the works would be required.
253. BARONESS MCINTOSH OF HUDNALL: Can I ask you this, since you have obviously had time to digest the implications of the Williams case, though it is of very recent date: you made reference in your earlier remarks to the appropriateness of an informal assessment preceding any formal notification that work might need to be done or action taken. It does appear on the face of it that this judgment from the Tribunal implies that even an informal visit of that kind, which you appear to accept would be appropriate before bringing the force of the Act into play, itself counts as an inspection visit and therefore, irrespective of whether the case was worthy of note in any event, that informal visit or any informal visit would be subject to the provisions of 239. Can you say whether you agree with that interpretation or whether that was in the minds of Ministers when the Act was drafted?
254. MR LLEWELLYN: As the Department which sponsors the RPTS and because of its quasi-judicial role, I cannot comment on its judgment.
255. BARONESS MCINTOSH OF HUDNALL: Could you find another way of thinking about the question?
256. MR LLEWELLYN: What I could tell you in terms of this is that I am actually the sponsoring officer for the RPTS in England and we have a close relationship with Siobhan McGrath, the Senior President, and Mike Ross, the Chief Executive. They would acknowledge that you will not always have consistency of agreement across RPTS decisions, that each decision is a decision in its own right and applies in that case, and if anybody here chose to go to look at RPTS decisions, they would not see equal consistency and not see them refer necessarily to each other and believe that sets a precedent in terms of the decision that a particular tribunal has to take.
257. BARONESS MCINTOSH OF HUDNALL: But would you accept that there is any weight in the argument that we have heard this morning that the existence of those decisions does affect the way in which local authorities carry out their obligations under the Act?
258. MR LLEWELLYN: I think because they are actually not as widely reported as we believe, and can be quite difficult to find, they do not have a major sway in terms of how local authorities act.
259. CHAIRMAN: Are you suggesting that local authorities do not talk to one another?
260. MR LLEWELLYN: Yes.
261. CHAIRMAN: On that slightly provocative note, I am going to call for a lunch break and we shall reconvene at five minutes past two.
The Committee adjourned at 12.55pm and resumed at 2.05pm
262. CHAIRMAN: Good afternoon, everyone. I believe, Mr Lewis, you wanted to make a statement before the departmental evidence continues, so would you like to do that now?
263. MR LEWIS: If I may. I just wanted to correct a small factual error I made this morning, if I may, for which I apologise in advance. It is around the issue of the Enforcement Concordat. You will remember it is a document which is in our bundle and you yourself raised questions on its status. I can tell you that its status is defunct now in relation to the Housing Act 2004. I have learned over the lunch period that as from 5 April 2009 it was in effect replaced by a statutory document, the statutory Regulators' Compliance Code, which is a code which is made under the Regulatory Enforcement and Sanctions Act 2008.
264. Obviously, I have not got the document in front of me so I cannot tell you exactly what it says, but I am led to believe that in a sense it carries on that message of "use informal enforcement procedures where you can", but it goes a lot further in terms of requiring local authorities who regulate businesses, and I suppose landlords fall within the general idea of what a business is, to co-operate and streamline regulatory enforcement procedures. I do not think, from what I am told, that the message is any different from the message which is given by the Enforcement Concordat.
265. CHAIRMAN: Thank you very much. In that case we will turn to the Department for Communities and Local Government. I think the original statement has been made and we are now embarked upon questions.
266. MR LLEWELLYN: Can I just pick up two points, my Lord Chairman? In answer to your question do I believe that local authorities do not speak to one another I said yes, which was slightly tongue in cheek, I have to admit, on the basis that we fund the Local Authority Co-ordinators Regulatory Services (LACORS) to ensure that they do speak to one another and it is actually a key priority that we have. The reason we do fund them is to make sure it happens as opposed to our concern that it might not happen.
267. Also, in relation to charging, I was asked specifically the question earlier about the concern that if you undertook action under section 40 whether the authority would be able to recover their costs. Under section 42 you can recover the costs for the emergency works. You cannot recover the costs under section 42 for works that you would otherwise have done under section 239.
268. CHAIRMAN: Which required the notice.
269. MR LLEWELLYN: Which required the notice. You can recover the costs for the works for the emergency, so to make good, to correct or cordon off or whatever in respect of that emergency action.
270. CHAIRMAN: That is indeed helpful information, thank you very much. Turning back to our other point, that local authorities do indeed get together and are strongly encouraged to do so, if I may put it that way, the point I was making about the tribunal's decisions circulating amongst authorities and causing them concern does have force in that case?
271. MR LLEWELLYN: It has force in that LACORS will look at RPTS decisions, and in relation to its decisions to date they have been supportive of the department's position in terms of the way that the legislation should be used, and so the guidance notes that they of course send and the general approach they take in terms of bringing in the guidance will support the use of section 239, where appropriate, or section 40.
272. CHAIRMAN: In that case, can you give us an indication of the guidance that the department offers in relation to the specific points that were raised this morning, mostly about the informal procedure and its role within the system?
273. MR LLEWELLYN: To my knowledge, and I stand ready to be corrected, there is not departmental guidance as such on the informal nature or otherwise. What there is, as you have in the pack, is the general guidance on housing health and safety rating and, as was mentioned, we would support the view in terms of being informal and trying to do things in a non-confrontational manner where possible and using notices where they are required, so not to use notices excessively.
274. It is our view as a department, and this is not offering any comment in relation to the RPTS decisions, that the legislation as it was does not state anywhere that you should go, nor does it prevent you from going and doing an informal visit and discussing the issue and then deciding whether or not to return under the auspices of a notice, and at that point you decide whether it is worth putting the effort that we have heard about (and we believe appropriate amount of effort) into deciding that it is right to serve that notice and to take that action.
275. CHAIRMAN: Again, that is very helpful because it is now on the record as the official department view.
276. MR LLEWELLYN: Yes.
277. CHAIRMAN: Thank you. Do any of the members of the Committee want to question the representatives?
278. BARONESS McINTOSH OF HUDNALL: Could I ask one question in relation to the human rights issues that were raised? The question of the human rights of the owner of a property has clearly been the thing that has been of most concern in thinking about whether or not notices should be served. Sometimes the owner and the occupier are the same person, of course, but frequently they are not. Do you have any observation to make on the potential for either creating or exacerbating existing tension between owners and occupiers where a complaint is received by a local authority from an occupier in respect of an owner and the owner is simultaneously notified?
279. MR LLEWELLYN: I think this is a difficult position because ultimately you are in a place where there is a contractual arrangement between the tenant and the landlord in terms of the supply of a product. I would encourage any tenant who phoned the department to speak to me about problems with a property to first discuss that with their landlord, and I think that would be good practice in the same way as you would in the transaction of any good.
280. You then get to the stage where that may break down and that is where the legislation is there to support, to be honest, either the landlord or the tenant. My personal view is that if you are looking to go down an enforcement route at whatever point the landlord is notified, whether it is before the local authority go in or after the local authority go in, you will have a negative reaction. I think it is more likely, and this is a personal view, that a landlord would react more negatively if the local authority had been in, had undertaken works and then notified the landlord of works; I am not talking here about emergency works, but where the landlord knew nothing of what was happening to their property.
281. BARONESS McINTOSH OF HUDNALL: Can I just stop you there in relation to what we heard from our witness, that, certainly as far as Camden is concerned, there is a system of triage in operation before any decision is taken to carry out works and that in order to determine whether works need to be carried out (other than in an emergency situation) and on what timescale and on what basis that decision has to be preceded by some kind of inspection visit which is unlikely to include doing any work unless presumably there is an emergency, so the issue rests upon the status of that first visit, does it not?
282. MR LLEWELLYN: No, because the status of that first visit can be an informal visit. We would maintain that an individual can invite the local authority into their property to look at it and to consider the merit of the complaint. What I was saying was that at that point that is the same as that individual inviting any person into their home and I would argue that that is appropriate. What I was then saying was that if then the local authority felt that there was the need to serve a notice that would be based on an assessment of the severity of the condition of that property and the risk. That is probably not going to be well received by a landlord at any point in the process because that is basically suggesting that the product is potentially not fit for purpose and that is not a positive message to have to give but is one that we have asked local authorities to do and it is one that landlords know they face if they do not have property in good condition.
283. The department would encourage local authorities, and Camden has been active in this field, to engage with landlords on a routine basis so that the time at which you are serving the notice is not the first time that that local authority has spoken to that landlord, that it has landlord forums, that there is an accreditation scheme (and there is a London accreditation scheme for landlords), so that there is a dialogue, an ongoing relationship, between that landlord and the local authority, and if that was working well, and it probably will where it is a good landlord, that is an added method of ensuring that this does not come as a bolt from the blue and that you would as a routine practice by any local authority be encouraging landlords to ensure that their properties are of good condition and that you would have a strategic policy for how you were looking to secure improvement within the private rented sector within your borough. If you just look at the notice in isolation you only get a small element of the picture rather than the wider duties of a local authority.
284. BARONESS McINTOSH OF HUDNALL: I think you are just in effect reiterating the point, which obviously is a very helpful one, that everything that occurs up to the point of issuing a notice ought not to be subject to the provisions of clause 239. Is that the case?
285. MR LLEWELLYN: Yes, I would say that.
286. BARONESS McINTOSH OF HUDNALL: That would be your view?
287. MR LLEWELLYN: In terms of how the legislation is currently drafted, if a notice has not been served then it is open for an individual to invite anyone into their home.
288. CHAIRMAN: If I may come in here, if you are going to serve such a notice, would that require a formal visit of inspection beyond the informal first visit?
289. MR LLEWELLYN: I believe it would.
290. CHAIRMAN: Because that seems to me quite key in terms of any tribunal decisions.
291. MR LLEWELLYN: Indeed so.
292. CHAIRMAN: That you would need to go back and make a formal inspection, having got the lie of the land, so to speak, on your informal visit.
293. MR LLEWELLYN: I think that is correct.
294. CHAIRMAN: And then everything goes in train with the enforcement procedures?
295. MR LLEWELLYN: Exactly.
296. CHAIRMAN: Thank you.
297. LORD HASKEL: Have you issued any guidance on this at all?
298. MR LLEWELLYN: There is guidance on enforcement in relation to housing health and safety rating. The department committed to produce guidance in relation to other parts of the legislation and is planning to do so, hopefully later this month, in relation to a research project that we commissioned from the Building Research Establishment that was looking at the operation of the 2004 Housing Act within its first three years. We had a baseline study and then we are looking at local authority performance against that and we were using that evidence guidance that we will provide for local authorities. We have that guidance currently in draft with lawyers and we have the draft BRE report and we are hoping that those can be published - I was going to say in July but I am conscious that there are not that many days of July left.
299. CHAIRMAN: But would I be right in thinking that that deals with a slightly different issue from the one that is exercising us here at this moment? That is more concerned with how you evaluate the situation, is it not?
300. MR LLEWELLYN: No. That would be looking at performance and therefore to picking up on issues where local authorities would benefit from guidance.
301. CHAIRMAN: I see, so might we hopefully think that this point that we are now considering might be included in the guidance?
302. MR LLEWELLYN: It is included in the guidance, and also it will be departmental guidance but, as you will understand, with departmental guidance we always have to say to local authorities that they must take their own legal view. The department can only offer an interpretation.
303. LORD HASKEL: If I could just pursue that point, of course, it is quite easy to deal with a good landlord when there is a problem. It is the poor landlords who are the problem. Could you give us some idea of what this guidance says about dealing with difficult landlords?
304. MR LLEWELLYN: You will have heard referred to earlier a thing called the Rugg review, an independent review of the private rented sector that DCLG ministers commissioned from Dr Julie Rugg at the Centre of Housing Policy at the University of York, looking specifically at the private rented sector. We asked this question because local authorities will tell us and we recognise that it is very easy to engage with the good landlords. They want to engage and have a positive relationship. Engaging with poor landlords is more difficult and is very resource intensive, which is why we encourage local authorities to try and take a strategic vision.
305. We encourage local authorities to look at worst first in general terms when speaking to them, but how you get to worst first is difficult. Therefore, one of the recommendations which Julie Rugg made to the department was that a national landlord register should be established. This would require primary legislation. This would require all landlords to register; it would be a no-hurdle register, and at that point a local authority would know what landlords were operating in the area and the addresses of their properties. That would then allow them to tie any need for enforcement action, because they would be aware of where those properties were, to the potential condition, and that would help local authorities prioritise.
306. This is something that has also been picked up by the Chartered Institute of Environmental Health when they did a study of enforcement action through housing health and safety rating. They questioned local authority behaviour and whether they were properly doing risk assessment on where they should enforce and whether they were going to worst first or whether they were going almost on a responsive basis to whoever phoned next, and one of the challenges put to the department by the Chartered Institute was how we could help take the message that in a risk-based assessment process there could be something to be said for going for the more difficult risks ahead of the less challenging ones.
307. That is not always the case and there will obviously be quick wins and whatever. At the risk of saying that we will always commission research, we published in our research programme for the current year a review of the operating of the housing health and safety rating regime which will look at this very point of whether local authorities are properly using it as a strategic tool or whether they are too under pressure almost and therefore just using it on the next person who comes along.
308. CHAIRMAN: So does this strategic vision, as you put it, come down to worst first?
309. MR LLEWELLYN: No. The strategic vision may be worst first in a particular part of the borough and a different policy in another part of the borough. It cannot always be worst first. What you have to do is stand back and look at your problems and properly assess where best to use your powers.
310. CHAIRMAN: Is it what I would call an assessment because I am not too keen on visions?
311. MR LLEWELLYN: I think "assessment" is an excellent word.
312. BARONESS McINTOSH OF HUDNALL: From what you heard from Mr Princep about the triage system in operation in Camden, does that sort of system comply with what you have in mind?
313. MR LLEWELLYN: It clearly works for Camden. I do not think we would necessarily advocate it for everybody but it shows that they are thoughtful in terms of -----
314. BARONESS McINTOSH OF HUDNALL: Prioritising.
315. MR LLEWELLYN: They prioritise and it was interesting, I thought, that in terms of the number of cases that are considered the number of notices served is very small.
316. LORD HASKEL: Thank you for telling us about this possible register. How do you think this register would simplify this whole business of issuing notices requesting permission to visit premises?
317. MR LLEWELLYN: I did not say it would simplify the process because we believe the process is appropriate. The important thing that Julie Rugg said to us, and she worked with stakeholders to look at the legislation and how it operated, was that there was sufficient regulation and that it was effective and operational. The problem was that local authorities found it difficult to prioritise and she believed that if the local authorities had a clear picture of which landlords were operating where in their borough they would then be able to prioritise that action and make a proper assessment.
318. CHAIRMAN: I guess that if you are a bad landlord for one property you will be a bad landlord for all the others, so if you know all the others you might be able to make an informed guess that you would go there first.
319. MR LLEWELLYN: Indeed so.
320. CHAIRMAN: Any further questions from the Committee? Mr Roberts?
321. MR ROBERTS: I have got one question. It is about the new power in clause 21(3) about entry where there is unnecessary and imminent risk to safety. I have heard what has been said about section 40 and I understand the powers to take emergency remedial action. I could not quite work out what the department's position was about how the housing authority put themselves in the position of being satisfied under section 40 that a category 1 hazard exists. It is this dilemma, as they perceive it, that they cannot know it exists until they have been there. They suspect it exists, they suspect it might be urgent. How do they get in there without having to give the notice?
322. MR LLEWELLYN: It is open for the local authority, as we have said, to be invited into the property. The good thing about the housing health and safety weighting system is that it does have a very broad base and has a way of calculating risk. What we are talking about in terms of using a section 40 notice is something that goes beyond that. It is where you go and you can easily identify risk, so, for example, your carbon monoxide scenario.
323. Doing a housing health and safety weighting assessment of that property is not a quick and easy task. It needs detailed work and will take some time. Going in and checking the output from a boiler is a very different task and one that would be done very easily and very quickly and you would know immediately that you had to do emergency work. The emergency work in that instance is not replacing the boiler or the heating system. It is switching the boiler off and then ensuring that there is an alternative source of warmth and hot water. You might consider whether you can rehouse the family or ask them if they want to stay with relatives, but you do not at that point have to remove the boiler, replace it and then charge the landlord. You then speak to the landlord and ask questions such as, "When was that boiler last serviced? You should call British Gas out immediately and have this seen to", and whatever.
324. In answer to your question, the nature of section 40 activity is meant to be for the sorts of things that would hit you in the face, not that you would have to sit and go through and do a heavy assessment on to then decide that the score is high.
325. CHAIRMAN: Thinking of the recent horrific case of the fire in the block of flats in Camberwell, where it seemed to go very rapidly from one flat to another with loss of life, presumably you would have to put something in hand pretty quickly to look at the other blocks of a similar nature apart from the one where presumably very detailed investigations are going on.
326. MR LLEWELLYN: That is correct, and that is why John Healey made it a priority to write to all local authorities drawing to their attention the fire, the nature of the block and the risks that were there. Independent assessment is being done of that block, both by the Building Research Establishment and by the department's Fire Service in terms of the problems that were there. I obviously cannot comment on the detail of that but you are right that you have to draw that to everyone's attention. The full survey of the fire and its impact on the block is something that will be reported but, as you say, you have to alert local authorities to the fact that that risk exists.
327. CHAIRMAN: There is just one other point and that is harking back for the moment to the human rights issue. You were absolutely adamant that you thought that the clauses in question would not comply, but when I came to look again at Lady Andrews's report of 24 January, at the end of paragraph 4 it says that it "may not be compatible", which is not quite the same thing as "it is not".
328. MR LLEWELLYN: We have sufficient concerns that we would not support this amendment because we would not wish to be challenged in relation to this and we would not wish to have an infraction case against us.
329. CHAIRMAN: I was simply drawing attention to the difference in wording between the written statement from the Minister and your own statement made here this morning.
330. MR LLEWELLYN: Indeed so. The Minister is obviously our Minister and it has been considered in her reply which was provided for her by myself and officials,
331. CHAIRMAN: I think we guessed that.
332. MR LLEWELLYN: So we should take her reply as having primacy.
333. CHAIRMAN: Any other points that anyone wants to raise?
334. LORD HASKEL: Just one point on the human rights. We have had the correspondence from the department and we have had the correspondence from Andrew Dismore saying that it does not conform with the human rights. We had the evidence from Mr Lewis that James Goudie says that it is okay. Do you have any comments about that?
335. MR LLEWELLYN: On the basis that we have seen neither James Goudie's comments nor had we until lunchtime seen a copy of Andrew Dismore's letter, I think it would not be helpful for me to comment.
336. CHAIRMAN: Anything further? If not, then at this point may we ask you to withdraw while we deliberate?
At 2.32pm Counsel and Parties are directed to withdraw
and at 3.00pm are again called in
337. CHAIRMAN: Mr Lewis, we have deliberated and come to the following conclusions. With regard to clause 21, only subsections (2) and (4) should come out, the rest to remain with any necessary consequential amendments.
338. We are mindful of the fact that many of the worries expressed have been met, so far as we are concerned, by the assurances of the departmental representatives that the issue of informal visits is as it was thought to be before certain tribunal decisions, and we are further pleased, delighted indeed, that we shall have departmental guidance on this and a number of other issues in the near future.
339. We commend this very much and we hope that it will be not only widely circulated, as I am sure it will be, but will be taken on board by all local authorities.
340. With regard to clause 22, we are allowing this but with an important amendment suggested by you, Mr Lewis, that though we go one stage further down in the chain of command there should be one designated person at any time able to sign the enforcement notices.
341. I think that concludes the points from our point of view.
342. MR LEWIS: Thank you very much, my Lady.
343. CHAIRMAN: In that case, we turn to the rest of the Bill which we shall be taking in strict order, so Part 1, clauses 1 to 3. As the departmental representatives are leaving, may I thank them for their attendance and the help and information that they have given us.
344. Hopefully this will not take quite so long. Clause 1, I think, is pretty standard.
345. MR LEWIS: It is.
346. CHAIRMAN: I will go through and if you want to comment or members of the Committee want to comment we will stop: clause 2, the general interpretation, 3, the appointed day. Clause 4 is no longer there.
347. MR LEWIS: And with it goes Schedule 1.
348. CHAIRMAN: So then we turn to the next one, which is clause 5, powers exercisable by police, civilians and accredited persons. Are there any points you want to make on that?
349. MR LEWIS: There is nothing specific. I am happy to explain what it is all about if the Committee wishes to hear but I have not anything particularly in mind to add.
350. CHAIRMAN: In that case we will move to clause 6, power to require name and address. I think we have an addition for this.
351. MR LEWIS: We do. It is simply an addition of a definition which is required. It is a drafting matter.
352. CHAIRMAN: Yes. It just makes for greater clarity, I think.
353. MR LEWIS: Yes, indeed.
354. CHAIRMAN: Clause 7, street litter control notices. Again, there are some amendments made.
355. MR LEWIS: Again, drafting amendments suggested by Mr Roberts.
356. CHAIRMAN: Clause 8, charges for public toilets and use of turnstiles. I have a view upon turnstiles.
357. MR LEWIS: We did not think we would be able to pass this clause without comment, I have to say. If I may, just by way of introduction, explain a little bit about the clause and first explain why we have deleted subsection (1), the effect of which would have enabled a discrepancy to be dealt with in relation to the way local authorities can charge for the use of lavatories, as the legislation stood there was a perceived discrimination as between women and men which has now been dealt with by government legislation since the introduction of the Bill.
358. Subsection (2) remains though. It is fairly clear almost from reading it what it does. You will see that there is a 1963 piece of legislation which prohibited the use of turnstiles at lavatories provided by local authorities. We have done a little bit of research into the background to that legislation. It was a Private Member's Bill and I think the first attempt at it was by Barbara Castle, who attempted to get this through. Again, one of the reasons was discrepancies between male and female lavatories, I understand, where local authorities had been putting in turnstiles but significantly more - and I do not, I have to say, know why - in women's lavatories. I do not want to go into too much detail but I suspect that it was because in the gents' lavatories you have the urinals rather than the cubicles and for some reason more money was spent on the ladies'.
359. CHAIRMAN: Cheaper to run.
360. MR LEWIS: I guess that is probably right. That was one of the reasons for introducing the ban on the turnstiles. Another one was that back then, obviously, the technology was not anywhere near as advanced as now and I have seen some of the extracts from the debates at the time which refer to the sorts of turnstiles which were like "prisons" or "bear cages" - those were the words used by Barbara Castle - which ran from ceiling to floor, in effect, and were very difficult to manoeuvre through.
361. Obviously, things have changed a lot since then. In terms of legislation we now have sex discrimination legislation. We also have disability discrimination legislation, which, I have to stress, applies despite the lifting of the prohibition on turnstiles, so if a local authority wished to introduce a turnstile into its lavatories it would have to be DDA compliant. That is an overriding concern.
362. There are different types of turnstile and you will probably be familiar with them. If anyone is familiar with Victoria Station and the lavatories there, I think they have them there, a bit like a milking stool, three legs, on its side. You go through and there is one turn every time you go through and I think you pay 20p to get in. That is one sort which local authorities would be able to provide in the same way that Network Rail do if this clause were allowed.
363. There are also the paddle gates, which might not fall within your own personal definition of what a turnstile is, but we would suggest that possibly they might be called by the term "turnstile", which is not defined, and so this clause would allow the paddle type of turnstiles as well, which are the sort you have on the London Underground where you have two little gates which open outwards, and again the idea would be that there would be a small charge to pay for the turnstile opening.
364. In anticipation of queries raised by the Committee I have brought along someone who is an expert in the sorts of turnstiles we have and who could answer any questions about their use and I am happy to call him if required.
365. CHAIRMAN: It is a him?
366. MR LEWIS: It is a him. I make no apologies for that. One of the difficulties that the clause is trying to address is revenue. It is expensive to maintain public lavatories and they are closing at quite a considerable rate. It is a concern which has been raised, I know, in this House and this is one way of trying to deal with that issue.
367. CHAIRMAN: You said that there was no precise definition of a turnstile, which means that presumably, if this were granted, any kind of turnstile, including the old type, could go in.
368. MR LEWIS: It might be best if Mr Berry were asked what the likelihood was of that ever happening. I suspect it would be very unlikely, and I suspect also that the Disability Discrimination Act would make sure that that was impossible.
369. CHAIRMAN: Perhaps it would be useful just briefly to hear from your witness.
MR ROGER BERRY, Sworn
Examined by MR LEWIS
370. You are Roger Berry, are you not?
(Mr Berry) I am indeed.
371. Could you just explain to the Committee what your role is?
(Mr Berry) I am a local councillor in Wiltshire and I run a business called Healthmatic which is a public lavatory management business. We look after loos for 73 different local authorities. We have clients from - and this is a great strap line - Aberdeen to Newquay and Sleaford to Galway.
372. Arising from what we have just said, Mr Berry, first is my Lord Chairman's question about the floor-to-ceiling turnstiles, the bear cages, as they were known. Do you think there will be a danger of those ever being reintroduced?
(Mr Berry) I think it would be very unlikely, particularly bearing in mind the recent concerns about turnstiles in terms of access and egress as a result of the Sheffield incident. Just in case you were not sure what "turnstile" was referring to, my Lord Chairman, here are some pictures which I can pass on, (Same handed in) and that (indicating) is the milking stool type. We operate one of those in Portadown, Northern Ireland. It does have a slight issue in that from time to time a larger person finds it difficult to get through and we have the facility where there is an attendant there to look after a pushchair which would not be able to get through.
373. This (indicating) is a paddle gate. There is only one of those, unfortunately, but that is at Bourton-on-the-Water and that was installed on the basis that it was not a turnstile and therefore did not come under the Act as far as Cotswold District Council felt on their legal position. In terms of turnstiles and their accessibility as far as a public loo is concerned, there is a requirement for loos to be DDA compliant where reasonable.
374. There will be some difficulty in certain loos where there are large numbers of steps to go down and the likelihood of them ever becoming DDA compliant is limited. If there was any improvement to repealing the Bill, it might be to add some element of access statement perhaps, but in most cases in the City and Westminster those loos would be attended and have somebody to come and open a gate should that be required, although that is not ideal in that it means that a disabled or ambulant person, or indeed someone of a larger stature, might have to require of the attendant that they come up and open the gate and that can be a little diminishing as an individual, I think.
375. CHAIRMAN: It also assumes that the attendant will be there. I have to tell you that I have been in such places on occasion where there was no attendant at that moment. I am sure in theory they were but in practice they were not.
(Mr Berry) It happens from time to time, I am sure.
376. The other point is this question of everyone being able to get through. People are getting larger, to say nothing of women either expecting babies or with small children. I have seen many people struggling like that in the course of quite a long lifetime and also if you have luggage. Trying to get through one of these with luggage, I have to tell you, is not good.
(Mr Berry) I would concur with that.
377. So how can we be sure, sitting here today, that any models which are brought in using this general principle of a turnstile, however interpreted, means we are not going to perpetuate some of the disadvantages we have seen over the years?
(Mr Berry) In general building control from the local authority would deal with that accessibility, so they would query the contractor, or indeed the local authority, to determine whether that turnstile was compliant or not. I think the issue we have is the term "turnstile" and the broader concept of a paddle gate which is the preferred option at all transport hubs, with the exception of Strathclyde. Interestingly enough, my Lord Chairman, I notice that you certainly have an opinion as far as a lady is concerned regarding turnstiles, but the typical (thankfully not frequent) injury in Strathclyde is of the gentleman's crown jewels being caught if he follows somebody too closely and the turnstile comes up and catches him in a nasty place.
378. So that would suggest that the other model, you call it a paddle model, which is how they operate at the London Underground -----
(Mr Berry) Correct.
379. ----- seems to work reasonably well.
(Mr Berry) It certainly does.
380. But, as I say, how certain can we be that that is more likely to be the model or an improvement upon that rather than these other models?
(Mr Berry) I think it would depend on what building controls' interpretation of accessibility was on the turnstile. If they felt it was accessible then clearly they would allow it. If they felt it was not they would not, and I think we do have to trust to a degree that element of our local councils to deliver what the public require.
381. MR LEWIS: Is there also an element of cost there? Are the paddle gates cheaper or more expensive than the milking stools?
(Mr Berry) Paddle gates are more expensive than the milking stools. The issue you have got is that with a paddle gate you need two, one in, one out, because they are ratcheted. With a paddle gate you can go in and out of the same one so there is a slight differential there but paddle gates are approximately twice as expensive.
382. I think you just said that with the paddle gates you can go in but you cannot go out and I think you probably meant that with the milking stools you can go in but you cannot go out.
(Mr Berry) Correct. With milking stools you need two - one in, one out. With paddle gates you can go in one way and back out the other.
383. CHAIRMAN: Would that suggest a lesser differentiation in cost?
(Mr Berry) Lesser differentiation in cost, yes.
384. Would the paddle one still come out slightly more expensive, because you would need one or two?
(Mr Berry) If you took a typical mechanical turnstile operation you would be talking about £8,000 for two, paddle gates £10,000 for one but an in-and-out one.
385. CHAIRMAN: Thank you very much.
The witness withdrew
386. If there are no more issues on that let us move on. I think we make a big jump now to clause 20. Numbers 21 and 22 we have done; 23 is out.
387. MR LEWIS: Clause 24 is next.
388. CHAIRMAN: Amendment to City of Westminster Act. That is quite a minor point?
389. MR LEWIS: It is a minor point about the way in which notices are to be served in relation to the closure of unlicensed sex establishments.
390. CHAIRMAN: So you are getting rid of the prepaid registered letter?
391. MR LEWIS: And replacing it simply by a requirement to serve by post, which is equivalent to the rules in the Supreme Court and other courts for the service of legal documents.
392. CHAIRMAN: So it is a watering down in one sense, is it not?
393. MR LEWIS: It is a watering down for the local authority, yes.
394. CHAIRMAN: Also, could you then get people claiming that they had not received it, because the whole point of a prepaid registered letter is that it is signed for and you cannot then pretend it did not arrive?
395. MR LEWIS: I am instructed that with the sort of premises we are dealing with here the recipients would not sign for them anyway, even if you had registered delivery. We are talking about unlicensed sex establishments. As a little bit of background to the 1996 Act, it was quite an innovative piece of legislation which allowed Westminster City Council to effectively go to the magistrates' court and seek an order closing down unlicensed sex establishments, ie, premises usually based in Soho, seedy premises selling unregulated videos and other equipment which they should not have been selling because they did not have the correct licence from the authority, persistent offenders who could not be dealt with by normal prosecutions. They just opened up again immediately and this is the way that the problem has been dealt with, I think, quite successfully in Soho.
396. MR BLACKWELL: It simply mirrors the provisions in relation to the service of summonses in every other magistrates' court.
397. CHAIRMAN: That is interesting; okay, thank you. Let us go on. I think we omit 25.
398. MR LEWIS: Yes.
399. CHAIRMAN: So we go on to 26, street trading vehicles and the internet.
400. MR LEWIS: Yes. This provision extends the London Local Authorities Act 1990 which deals with street trading, and also, if you look at clause 27(3), it does the same job for the City of Westminster Act which deals with street trading in Westminster.
401. The issue which the clause attempts to deal with here is motor vehicles on the street. If you look at tab 13 in the bundle you will see we have put in there the definition of "street trading" in section 21 of the London Local Authorities Act 1990. The practice that we are trying to deal with here is legal advertising vehicles on a website and parking the vehicles, usually on residential streets, and the problem, identified originally by Richmond Borough Council, is that sometimes what are effectively car dealers park their cars along the same street and make it a showroom almost.
402. I remember when I was instructed to draft this Bill there was a particular problem with a chap in Richmond who was a Jaguar dealer and lined this particular street in Richmond with Jaguars. This was a street which had unregulated parking so there were no parking controls; it was suburban enough to merit that. The local residents obviously knew that the vehicles were not being parked by one of them and they started complaining to the council about it. The council thought that under the street trading legislation, which is why we are here, there was nothing they could do about it. The definition of "street trading" I have set out there for you, and if you look at it, it says "street trading" means "the selling or the exposure or offer for sale of any article", and if you skip down a couple of lines "... in a street ...".
403. The legal view taken by the council was that the vehicles themselves, while they did not have any signs on them indicating that they were for sale - and this is the difference between this type of car dealing on the street and the other sort, which is also a problem where dealers put signs in the windows with their telephone number in - this particular type was not caught by the street trading legislation. The sort where you have a sign in the window is because they are being exposed; you can see that they are for sale, but with these Jaguars it is not so easy to get the owners to say that they are on sale, which is why we need the clause.
404. CHAIRMAN: Because the details are on the internet.
405. MR LEWIS: Exactly.
406. CHAIRMAN: Which is obviously not in the street.
407. MR LEWIS: Correct. That explains the reason behind the clause. Mr Roberts raised a query with me over the telephone about the scope of the clause. If you look at 26 and the new provision 1A.A, it catches the exposure or offer for sale of any motor vehicle "in the course of a business". It does not say "in the course of a business of dealing in motor vehicles".
408. Mr Roberts raised with me the hypothetical example of a butcher's shop and the butcher wanting to just offload one of his spare delivery vehicles. He would be acting in the course of a business, obviously, his butchery business, and he would be selling one of his vehicles. We do not think this should raise any issues because of the introduction I have just given you in that the council is only very likely to act under the street trading legislation if it is amended in this way, if a problem is reported to it by a local resident.
409. It is very unlikely, I would think, in the circumstances Mr Roberts described, where there is one vehicle being sold off quite legitimately by the butcher, of it causing the sorts of problems as the Jaguar dealer, who has a number of vehicles on the street all in one and over a long period of time as well. Hopefully, the butcher will be able to sell his vehicle very quickly and it will never cause a problem in any event.
410. CHAIRMAN: Thank you. Clause 27 I think we have looked at at the same time.
411. MR LEWIS: Clause 27 goes quite a lot further than just dealing with internet trading. I am very happy to tell you a little bit about this clause as well and we have today with us Mr Rigabie from Westminster City Council if you need a bit more information about why we have got these clauses.
412. Clause 27, and perhaps I may also mention the Camden provisions, which are clauses 30 through to 33, all deal with the same problem, and the problem is an old friend as far as London Local Authorities legislation is concerned, which is hot dog salesmen on the streets of the West End.
413. The previous London Local Authorities Acts have dealt with the problem successfully but it is actually their success which is one of the main reasons why we are here today. Under the London Local Authorities Act as it stands council officers and the police, but it is mainly done by council officers, are able to seize the hot dog trolleys of the people who are trying to sell their fast food in the West End. None of these people has a street trading licence. They are all trading unlawfully and that entitles the council to seize them and the court can then forfeit them later.
414. The problem is that it is a very long-drawn-out procedure before the hot dog trolleys can finally be disposed of after the council has made a forfeiture order, or, if the council has gone down a different procedure and asked for a disposal order, we are talking about a period of months for each of these hot dog trolleys being in the custody of the council awaiting disposal.
415. I have the figures here and they are astonishing. The council has to hire two warehouses to store these things. The cost of one of them is £42,000 a year and of the other one £45,000 a year. At any one time the council will be storing up to 500 hot dog trolleys. No-one ever claims them back because they are not worth anything and it is seen by these traders as a legitimate business expense. They simply lose the trolley and get another one. They are very easy and cheap to make. We have got photographs of some of them which may assist you and shows how dangerous they are as well. In a sense Westminster City Council has become a victim of its own success and needs additional help from you, my Lord Chairman, to deal with it.
416. The way the clauses will work will be to allow the council officers, when they are seizing the trolley, to hand a notice to the recipient saying, "Please will you fill in this form with your name and address and if you want to claim your trolley back then is the procedure and you have to require us to seek a disposal order" The crux of it is that they have to give their proper name and address and, of course, they will not do that and so hopefully they will not require the council to seek a disposal order, and if they do not require the council to seek a disposal order the council can dispose of the hot dog trolley summarily.
417. CHAIRMAN: Hopefully within 24 hours?
418. MR LEWIS: I would not like to say. There we are; that is the solution that the council has determined on.
419. BARONESS McINTOSH OF HUDNALL: Will there be a consequential problem of landfill?
420. MR LEWIS: I would imagine. The photographs we were going to show you show that some of them are not made completely of metal, which is what is so worrying about these things, that some of them are made partially of wood. They have a gas canister within them and we have had incidents where they have caught fire; in Coventry Street I think there was an incident, and they are very dangerous. On the whole I think it is fair to say that most of them are made of metal and one would hope that there would be scrap value and the council would be under an obligation, I think, to its ratepayers, if nothing else, to ensure that they got good value for it. Sending it to landfill would not do that; they would have to pay to do that, I would imagine, whereas selling it to a scrap dealer they would perhaps make a little bit of money out of it. I am told that some of these hot dog trolleys are hybrids. They are half wood and half metal and the wheels are stolen from shopping trolleys and put onto the hot dog trolleys. It is extraordinary the lengths they will go to in order to save the money.
421. CHAIRMAN: We have learned some fascinating facts.
422. MR LEWIS: There is another aspect to these provisions and it might help if Mr Rigabie took a seat because I think he can explain better than I why we need the other provision in the Bill.
MR PATRICK RIGABIE, Sworn
Examined by MR LEWIS
423. Your name is Patrick Rigabie?
(Mr Rigabie) Yes, it is.
424. Can you explain to the Committee what your role is at Westminster City Council?
(Mr Rigabie) I am the Operations Manager for the Street Management Service, which involves most of the street-based activity within the local authority.
425. So you would be responsible for the enforcement of the provisions I have just been explaining, but the other provision is all about seizing hot dog trolleys before an offence is committed, which is a fairly innovative approach. What the clause is seeking to do is allow Mr Rigabie and his colleagues and the police to seize hot dog trolleys from the people who are going to use them for selling hot dogs before they even suspect an offence has been committed, which is what you would expect to be the procedure, but here we have, we say, a clear example where it would be justifiable for council officers to seize the hot dog trolleys where they suspect that an offence is going to be committed. Perhaps Mr Rigabie can explain why by illustrating what happens on the ground when the hot dog trolleys are delivered into the West End.
(Mr Rigabie) On any given night we will have two to three transport-style vehicles and they will range from a transit type van to a Luton vehicle and they will each contain between eight and 14 hot dog trolleys coming into the West End. These vans will find a quiet street, oftentimes a residential street, to offload their vehicles. One such location will be Suffolk Street just off Haymarket. Another one will be St James's Square, which is off Piccadilly, and they will park their vehicle there.
426. They will offload eight or 12 trolleys, as the case may be. They will start the preparation for their activity, which is cutting up onions, decanting boxes of sausages and bread rolls, and the resultant waste from that will just be left on the street, so straightaway they are creating a waste problem. They will pour oil onto a hotplate to fry the sausages up and that oil will get spilled onto the pavement, again, creating grease and necessitating that area being washed down using chemicals and water. The trolleys will then be dragged from there along the road to whatever location they choose to trade from.
427. That dragging of what is basically a metal cage creates quite a lot of noise and at three o'clock in the morning these quiet residential streets are now being disturbed by a noise nuisance against which there is no effective legislation because the noise nuisance legislation you cannot effectively use because you have no-one upon whom you can serve a notice. Therefore we are incapable of taking any action because an offence is not created until we see someone serving and selling to a member of the public. At best all we can do is observe and follow these trolleys to a location where they have set up and started to trade.
428. They then park their vehicle on a residential bay. Again, that causes a problem for residents who cannot park their own vehicles because the bays will be being used by someone who is conducting an unlicensed activity, so it creates a myriad of problems for the residents of Westminster and for businesses as well because they are now competing with businesses for legitimate business, businesses who are paying quite high rates for operating in Westminster and they are operating free, so it causes a series of problems that we are trying to address.
429. BARONESS McINTOSH OF HUDNALL: Would I be right in thinking that this legislation, once it is in operation, if it is allowed into operation, would allow you to swoop on them in St James's Square or in Suffolk Street before they have offloaded the vehicles?
(Mr Rigabie) Effectively, yes.
430. BARONESS McINTOSH OF HUDNALL: And it is a power of seizure?
(Mr Rigabie) It would be a power of seizure, yes.
431. BARONESS McINTOSH OF HUDNALL: And would that include everything to do with the activity, including the vehicle that was used to transport them?
(Mr Rigabie) Unfortunately, no, not the vehicle, just the hot dog trolleys and the food associated with them.
432. LORD HASKEL: How do you find out that this is going on? Do you cruise around?
433. CHAIRMAN: Residents' complaints, I would think.
(Mr Rigabie) We have been operating in St James's for a number of years and we do get complaints from residents, we get complaints from businesses. We do go to the area the following morning to conduct inspections, to do a manual sweep, to then require a flush and wash of the area to clean the grease off the pavement, and that costs the council approximately £250 just to clean that area.
434. BARONESS McINTOSH OF HUDNALL: Each time?
(Mr Rigabie) Each time, yes, so, one, from the experience of seeing them offloading the vehicles and, two and three, from complaints from residents and businesses and seeing the mess that they leave the following morning.
435. LORD HASKEL: I was just trying to debate how likely it is for somebody to be on the spot when they start unloading or getting ready to unload.
(Mr Rigabie) We do know a number of locations that they frequent. St James's Square is one. Upper Tree Yard is another; that is in St James's as well.
436. CHAIRMAN: Excuse me interrupting you but about how many likely locations do you have within Westminster for the offloading?
(Mr Rigabie) Probably about six or seven. We would obviously have to monitor it and it would be down to some level of luck to find them at the time, but with that number we stand a very good chance of locating them.
437. I presume, of course, that if you have this legislation and there were certain known hotspots they would try and find new spots, would they not?
(Mr Rigabie) They would, but they would have to get to the area that they trade from eventually and go back from there to the vehicle and that gives us the opportunity to trace them back to that location because they will always choose to trade from specific areas within the West End where the footfall is highest and so we could trace them back to the vehicle and the location.
438. MR LEWIS: Can I just go back to Lady McIntosh's question, "Can you seize the vehicle?". In the original draft of the Bill, yes, we could have done that, but then we sent it off to Mr Goudie QC and he said we could not do it.
439. BARONESS McINTOSH OF HUDNALL: That would certainly hit their pockets, I think.
440. MR LEWIS: Yes. As it happens, under the existing street trading legislation those local councils can seize vehicles and they do, notably ice cream vans.
441. CHAIRMAN: Perhaps we should not go into what is not before us, but one is intrigued to know why you could not seize the vehicle if you can seize an ice cream van.
442. MR LEWIS: The ice cream van seizure provisions were, of course, enacted well before the Human Rights Act came into force. I am not saying they are not compliant; let me make that clear for the record, but there have certainly been no problems raised with it hitherto.
443. CHAIRMAN: Does anyone have any more points? If not, thank you very much. You have explained it very clearly.
(Mr Rigabie) Thank you, my Lord Chairman.
The witness withdrew
444. If there are no more points, let us continue. There are just a few minor points left. Clause 28, minor and consequential amendments?
445. MR LEWIS: Yes, these are simply consequentials.
446. CHAIRMAN: The repealing schedule?
447. MR LEWIS: Simply setting out for the benefit of the reader how the City of Westminster Act 1999 would look if amended by this Bill.
448. CHAIRMAN: And then we have 30, the interpretation of the Camden provisions.
449. MR LEWIS: Yes, and, as I said, the provisions in Camden mirror the Westminster ones. Obviously, the reason Camden have these provisions in as well is that they share the border with Westminster across the West End and so they have the same problems in Covent Garden and along Tottenham Court Road and Charing Cross Road, and, of course, they unload the vehicles there too.
450. CHAIRMAN: So 31, 32 and 33 we have effectively already considered?
451. MR LEWIS: Yes.
452. CHAIRMAN: That brings us to Part 7, miscellaneous, supplementary. Clause 34?
453. MR LEWIS: Very minor tidying-up amendments.
454. CHAIRMAN: Clause 35?
455. MR LEWIS: In terms of 35 to 37, I know, my Lord Chairman, that you are not a great fan of precedent being used as the only justification for provisions but I can say that all these provisions, you will not be surprised to hear, appear regularly in London Local Authorities Acts.
456. CHAIRMAN: Then I think we have two schedules.
457. MR LEWIS: Schedule 1 has gone.
458. CHAIRMAN: I think it is Schedule 4 and Schedule 5.
459. MR LEWIS: Yes. We have skipped through the clauses but Schedule 4 has a list of very minor drafting amendments required to the Westminster Act, and Schedule 5 is the City of Westminster Act as it would be amended.
460. CHAIRMAN: I think that completes our going through the relevant clauses and schedules. Does anyone have any last-minute queries? If not, may I ask you to withdraw while we deliberate?
At 3.45pm Counsel and Parties are directed to withdraw
and at 3.50pm are again called in
461. CHAIRMAN: Mr Lewis, we are content with the remainder of the clauses and they should proceed, together, of course, with the amendments proposed in the Filled Bill. Perhaps I could just add that I hope the turnstiles will be of a new and better variety than I have been accustomed to in my life.
462. MR LEWIS: I am sure that will be noted.
463. CHAIRMAN: Thank you. We turn then to the Preamble, the formal part of the proceedings. May I ask you to prove the Preamble?
464. MR LEWIS: Before I do that, my Lord Chairman, there is one thing that has been nagging me. I handed in a paper of additional amendments this morning. There is a tiny error on it, if I could just bring that to your attention now. It is the amendment to Clause 21. It refers to a new subsection (3). That should be (4).
465. CHAIRMAN: Yes. I had regarded that as part of the tidying-up process but thank you for drawing it to our attention. The Preamble?
MR GARY BLACKWELL, Sworn
Examined by MR LEWIS
466. Is your name Gary Blackwell?
(Mr Blackwell) It is.
467. Are you the Head of Litigation at Westminster City Council, the Promoters of the London Local Authorities Bill?
(Mr Blackwell) I am.
468. Have you read the Preamble to the Bill?
(Mr Blackwell) I have.
469. And is it true?
(Mr Blackwell) It is.
470. CHAIRMAN: Thank you very much.
The witness withdrew
471. Mr Lewis, that concludes our proceedings. We will report the Bill to the House with amendments, together with a special report where we have disagreed with the Minister of the Crown upon certain matters.
472. MR LEWIS: Thank you very much.
473. CHAIRMAN: Thank you very much indeed, Mr Lewis. The Committee is concluded.
The Committee concluded at 4.52pm