Smoke and Carbon Monoxide Alarm (England) Regulations 2015

Debate between Lord Marlesford and Lord Crickhowell

Monday 14th September 2015 Lords Chamber

[Lord Marlesford (Con)]

My Lords, in speaking to this statutory instrument, I first declare an interest in that I have residential properties which are let in the village that I live in in Suffolk, and the regulations will apply to them. That is in the Register of Lords’ Interests.

I got involved in this last Monday, when I suddenly realised, because I was told, that this statutory instrument was to be brought into full force on 1 October this year. I heard about it because the Government had issued a guidance note on how it would all work on 4 September, the Friday before, which was three weeks before the regulations were due to come into force. In a question and answer section, the guidance note states:

“Is there a ‘grace’ period for landlords?”

The reply is:

“If the regulations are approved, landlords are expected to be compliant from 1 October 2015 when the regulations will come into force. There will be no grace period after this date to install the required alarms”.

That is a pretty extraordinary statement considering that it was made such a short time before the regulations come into force.

My noble friend has made a lot of how everybody knew about the regulations, saying that there has been a great deal of publicity. My humble queries last Monday have produced a huge response. The British Property Federation points out that the regulations cover 4.4 million properties, but landlords are being asked to implement them in three weeks. Quite out of the blue, I received an email dated 9 September from British Gas in response to the Minister’s point about the effectiveness of the Government’s consultation. It states that,

“these Regulations are intended to come into force on the 1st October, without a grace period and with immediate effect. At British Gas, we are concerned that levels of awareness of the new regulations are currently very low, and that landlords may continue to unwittingly put their tenants’ lives at risk by not being aware of the new legislation … We recently conducted research with nearly 1,000 landlords in England through our long-term partnership with the housing charity Shelter, and found that 59% of landlords are not aware that these Regulations are due to come into force on the 1st October”.

That is pretty good evidence. As a result, there have been many applications to delay not necessarily bringing the order into force, but when it has to be complied with.

I say straight away—probably no one in the House would disagree—that we all think that the regulations are very sensible. They are needed. They should apply to all let properties—and probably, eventually, all owner-occupied properties as well. The intention is perfectly sound. I am complaining about the astonishing level of bad government in the way in which this has been put forward. It is very bad administration: Whitehall at its worst.

After I had made my comments on Monday, my noble friend very kindly invited me to see her in her department. I went with interest and expectation, but it was very unclear what the invitation was for, because she had nothing to tell me except that the Government intended to bring the regulations into force. What she said, interestingly—this was on Wednesday last week—was that she was going to lay the order that night in the Chamber. Actually, when I got back here, I found that that was not true and that the usual channels had attempted to inform her of that, but the message had not got through. That is another example which raises pretty good questions about the administration of her department—no fault of hers; I acquit her completely of that.

Then the decision was made to lay the order today. Interestingly, there was suddenly an ad hoc committee in the House of Commons, which met at 4.30 this afternoon to consider the regulations—an ad hoc committee, not a standing committee. I went along. It was very interesting. It did not take very long; the whole thing was dealt with in seven minutes, four minutes of which was taken by my honourable friend Mr Brandon Lewis, the housing Minister. I should say that Mr Lewis was kind enough to ring me over the weekend to say that he understood that I had a problem with the regulations, so I explained in some detail what it was. He undertook to consider it, which I thought was rather encouraging. Perhaps one should never be encouraged by undertakings. Anyway, he put the order forward. The opposition spokesperson got up and said how important the regulations are, as I have just done, and how sad it was that so many people die from carbon monoxide poisoning. There was not a squeak from anyone else. Immediately, the question was put, up everybody jumped up and off they went. That was the procedure in the House of Commons.

One of our functions in this House is to see that government is properly carried out and that legislation is sound, properly thought through and brought through in such a way that it can be properly implemented. A number of questions have been raised about the regulations which I will not mention now, because it would take too long. All I say is that there is far from being happiness and agreement that the Government have run the thing properly.

I shall cite three different bodies. The British Property Federation states that the compliance date should be postponed until April 2016. The Association of Residential Letting Agents, responsible for 1.42 million properties, states:

“It is not possible to undertake this amount of work before the regulations come into force”,

and that,

“all existing tenancies should be allowed to have until 1st January 2016 to comply”.

It also raises the point, which seems to me sound, that to have to inspect on the day a new tenancy is formed is rather impractical. An organisation called Your Move said that the matter was so unclear that,

“We had mistakenly thought the legislation applied to new tenancies only”.

I may say that the CLA—of which I am a member, incidentally—thought the same, and has asked for it to apply to new tenancies from 1 October, but from 1 April 2016 for existing tenancies.

The way in which this has been handled is thoroughly unsatisfactory. It is not good government. This Government have a responsibility not just for working out the right policies but for doing so in a proper way. It is not being done in a proper way, and that is lamentable.

[Lord Crickhowell (Con)]

My Lords, I hate having to rise to criticise my Ministers on the Front Bench, particularly the noble Baroness who is to reply to this debate. She has a well-deserved reputation for being extremely knowledgeable, not least about local government, and for dealing very well with matters. However, she has not been at her best in handling this business.

My noble friend the Minister started very eloquently this time on the way that information had been given to the fire authorities and how apparently they have rushed round the country telling tenants what they should and should not do. In the last debate in Grand Committee, I took my brief from the Secondary Legislation Scrutiny Committee and asked a number of very specific questions about the points that that committee made. The Minister did not answer one of those questions. Indeed, she did not even refer to the fact that I had made a speech at all. I had become a sort of non-person. I would gently say to her that it is usually a mistake when one of your colleagues makes a speech not to at least acknowledge he has done so, even if you are unable to give convincing answers to the questions. I was reminded earlier this evening that Lord Whitelaw always used to brief new Ministers and say, “Even if you haven’t a clue what the answer is, refer to the speech they made and then most Members will be reasonably satisfied”.

Slightly by chance later in the proceedings, partly as the result of questions from the noble Lord, Lord Beecham, on the other Benches and someone else, we were told:

“We have decided to issue new guidance in the form of explanatory booklets, one for local authorities and one for landlords. We also want to update How to Rent”.—[Official Report, 7/9/15; col. GC 177.]

How to Rent was the first of four documents referred to by the Secondary Legislation Committee, all of which it said needed revision. The situation when we met last Monday on these regulations, which launched in March and which the department had the whole summer to deal with, was that the department was going to revise and issue guidance and all these things. We are now told that it has been informing the fire brigade, which has been rushing round telling everyone, although my noble friend Lord Marlesford suggested that that was less than entirely accurate. It does not seem that we are getting on quite as we should or that this is the way to proceed. In the course of my speech, when I was told that key stakeholders had been informed, my noble friend the Minister said:

“A key stakeholder is someone who has a stake or interest in the regulation or legislation at hand”.—[Official Report, 7/9/15; col. GC 176.]

I am not sure that that took us much further forward.

I came into the House earlier today and picked up a document I had not read before. I am not sure whether it was on the table in the Grand Committee when I came in last Monday. It is the second report of the 2015-16 Session of the Joint Committee on Statutory Instruments. In her very brief introductory speech last time, my noble friend made a reference to one of the reports of that important committee. She said that the Government would follow the recommendation that a review clause should be added to the policy. A commitment was given that a review clause would be introduced in due course. However, that was only one of five committee reports outlined in paragraphs 6.1 to 6.11 of the Joint Committee document, covering nearly three pages, which identified,

“doubtful vires, defective drafting and unexpectedly limited use of powers”.

None of those points has been dealt with at all by the Government. We come here this evening and that very important Joint Committee has not even been mentioned by the Government, except on one point. That does not seem an acceptable way to do business.

Smoke and Carbon Monoxide Alarm (England) Regulations 2015

Debate between Lord Marlesford and Lord Crickhowell

Monday 7th September 2015 Grand Committee

[Lord Marlesford (Con)]

My Lords, first, I declare an interest in that I have residential properties, which are let, in the village that I live in in Suffolk and these regulations will apply to them. That is in the register of interests.

I support the intention behind, and the method employed in, these regulations. I am sure that, with her scientific knowledge, the noble Baroness who has just spoken has made many valid points about carbon monoxide. However, I am rising to protest about the way in which these regulations have been introduced so far. They are very complicated, as I shall show.

I should like to refer to the report, published in June this year, of the Secondary Legislation Scrutiny Committee, which has already been mentioned by my noble friend. The report draws attention to this statutory instrument as being very important and in the public interest, and it states:

“It will be important that the Department secures effective publicity for the new requirements in good time for the date of October 2015 when the Regulations come into force”.

I suggest that that has simply not been the case. The draft regulations were laid in March but that does not mean that the right sort of consultation on them took place; nor was there any real indication of what was likely to be involved. In fact, the scrutiny committee said that in its Explanatory Memorandum,

“the Department states that … it does not intend to publish new guidance on the policy”.

It is interesting that it has now produced guidance but we should keep bearing in mind the date—1 October 2015, which I think is three weeks away. That is pretty relevant because the guidance was produced last Friday, 4 September, and I have a copy of it in my hand. I obtained it only today but that is quite good with publication having been on Friday, and I doubt whether many other people have it. The guidance contains various questions. One is:

“Is there a ‘grace’ period for landlords?”.

The point made by the department—it is published by the Government and is the official view of Whitehall—is:

“If the regulations are approved, landlords are expected to be compliant from 1 October 2015 when the regulations will come into force. There will be no grace period after this date to install the required alarms”.

That is one of the most astonishing things that I have heard from Whitehall on something which is going to be a major undertaking for many people. In my view, it is an absurd idea. I think that there should be a much better explanation. Until last Friday, the CLA, of which I am a member, found the regulations so complicated to read that its official advice was that they were being brought into effect only for new tenancies—in other words, they were to be brought into effect gradually. It was only last Friday, when this new guidance was published, that the CLA changed its advice, saying that the regulations apply to all tenancies as from 1 October, and that advice was issued today. The CLA has a major role advising people with such tenancies of the obligations upon them. I doubt very much whether there are in the country sufficient pieces of kit to be fitted by 1 October, let alone whether they could physically be purchased and installed by that date—and yet, there is no period of grace.

I shall give noble Lords an example of the sort of complication. What is meant by a “solid fuel burning combustion appliance”? Some would be obvious to many of us. A wood-burning stove is an example. However, open fireplaces are included but they would not normally be regarded as a combustion appliance. I suspect the drafting and do not think that the courts would say that an open fireplace was a combustion appliance. The word “appliance” has a different connotation. There should be much more precision in the drafting of such regulation.

There is also a little note in the advice which states:

“In the Department’s view, a non-functioning purely decorative fireplace would not constitute a solid fuel burning combustion appliance”.

I asked the CLA today about this and it said that this was extremely unclear. For example, let us suppose—as is the case in many old properties—that fireplaces have been left for perhaps decorative or listed-building reasons in a room that has now become a bathroom. They would normally come under this rule. What is the requirement? Is it necessary, as with the energy certificate, to put a board over the fireplace so that it could not be used? Much more precision is needed in these matters.

I am asking for a much longer period. There is no way in which it is practical to bring these regulations into effect on 1 October with no period of grace. The Government have to think again about this. It is an example of extraordinarily bad Whitehall administration.

[Lord Crickhowell (Con)]

My Lords, I have a few preliminary remarks. First, as I usually do, I find myself in almost total agreement with everything that the noble Baroness, Lady Finlay of Llandaff, had to say. I re-emphasise the importance of the whole issue of carbon monoxide poisoning. My second confession is that I returned to this country from abroad only this morning and I had not seen these regulations until my noble friend Lord Marlesford drew my attention to them. Thirdly, I think that I have to declare an interest in that I am a tenant of premises that fall within the definitions here. The new regulations may or may not apply to me. There are certainly carbon monoxide and fire alarms in the building and on the upper floor. I do not think that there is an installation on the ground floor that may come under the definition—although it is virtually never used. However, the regulations may not apply in my case because they will apply only to tenancies that come into effect after 1 October. I think that I will be renewing my lease within the next day or two because my landlord and I have already agreed the terms. However, I will hasten to tell my landlord that we may have such an appliance.

My anxieties are like those of my noble friend and I begin, as he did, with the recommendation of the Secondary Legislation Scrutiny Committee. I began to wonder exactly how far the consultation had advanced. The Minister referred to some initial consultations, which I think took place in general a year or so ago. We are informed in the Explanatory Memorandum that during those consultations, which took place between February and March 2014, there were 299 responses to the question on smoke alarms. “A regulatory approach”, we are told,

“was supported by Fire and Rescue Authorities, industry representatives and over 96% of landlords, agents and fire officials who responded to the paper”.

I am glad that they did respond to the paper, but quite clearly if only 299 responded, it does not necessarily indicate that there was—or even now is—a widespread awareness of what has happened in terms of consultation. I do not think that my noble friend the Minister gave us any real information about that.

The scrutiny committee did give us some quite useful information in an appendix. We were told in appendix 1 that the Department for Communities and Local Government,

“intend to update a core set of guidance documents”.

The guidance documents are listed: the How to Rent guide, the industry code of practice, the model tenancy agreement, and the Renting a Safe Home guide. We are entitled to know whether those have all been updated, when and in what way. I would certainly be grateful for that information.

The appendix goes on to say:

“In addition to updating current guidance, we plan to use our partners and the media to communicate the regulatory changes. We have already communicated the key message through press notices”.

I wonder how many people in the business world actually read the press notices on matters such as this, issued even by so great a department as the one in charge of these regulations. It says that we,

“are working with our partners: lettings agents, landlord representative bodies, local authorities, fire and rescue authorities and alarm manufacturers to publicise the requirements over the next 6 months”.

What we really are entitled to know—this is what the scrutiny committee really demanded—is exactly how far that consultation and dissemination of well-publicised advice has gone. I do not think we heard very much about that, with great respect to my noble friend the Minister, in her introduction.

Before we approve these very important regulations—even if it is only a first step, as the noble Baroness suggested—we should know exactly what has been done to ensure that they are widely understood. I am quite certain that my very nice landlord, who is currently renewing the lease of my property, has no idea about it. I am not criticising him for that because I had no idea at all about it until my noble friend Lord Marlesford spoke to me less than an hour ago. I suspect that that situation would be found up and down the country. If we are to approve regulations that are to come into effect in three weeks’ time or something, we should have rather better information than we have been given so far.