Smoke and Carbon Monoxide Alarm (England) Regulations 2015

Lord Marlesford Excerpts

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.

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[Baroness Williams of Trafford]

A key stakeholder is someone who has a stake or interest in the regulation or legislation at hand.

In going forward with the regulations, the Government provided £3.2 million in a one-off grant to help fire and rescue—

[Lord Marlesford]

Before my noble friend leaves that point, I was certainly not regarded as a key stakeholder—there is no reason why I should be—but I received from the CLA only this morning a link for me to be able to download the advisory note issued last Friday. It produced its new view when it received that advisory note last Friday, which makes the idea of bringing it into force with no period of grace obvious nonsense.

[Baroness Williams of Trafford]

I take my noble friend’s point: he is not a key stakeholder and he got it from someone who would be regarded as a key stakeholder. That includes local authorities, groups of landlords and managing agents. It is not long until 1 October, but the draft regulations were laid back in March, so people who have an interest in this—that is, stakeholders—knew that it was coming.

--- Later in debate ---

[Baroness Williams of Trafford]

I will certainly do so. I have just spotted that point and I will certainly write to the noble Lord.

[Lord Marlesford]

Following the very interesting, important and sensible point made by the noble Baroness, Lady Finlay, does the Minister not now realise that the courts or anyone else will not see three weeks as being a reasonable time for these regulations to be put into effect? The guidance states that there is no grace period. If anyone tried to impose a £5,000 penalty on day two, three or four, I would have thought that that would be seen as absurd in judicial review terms. Will she not take away and reconsider the implementation date? I certainly could not agree to the regulations going forward with an implementation date of 1 October. That is obviously nonsense. The Minister herself gave a lot of examples, referring particularly to the very limited number of stakeholders. One would like to know how many stakeholders there are. I very much doubt whether people have had advisory notices. I do not believe that anyone would regard dishing out advice last Friday, three weeks before the regulations come into force, as adequate. It clearly is not. It is bad government and basically bad administration by Whitehall, and I hope that the Minister does not defend it.

[Baroness Williams of Trafford]

My Lords, there are two points here. First, it is imperative to protect tenants from unscrupulous landlords who will not meet their obligations. Secondly, in the theoretical situation set out by my noble friend, if on day two—2 October—a landlord was in breach, that landlord would have 28 days to comply, so the date we are talking about is more like six weeks from now.

[The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD)]

The Question is that this Motion be agreed to. As many as are of that opinion will say “Content”; to the contrary, “Not content”.

[Lord Marlesford]

Not content.

[The Deputy Chairman of Committees]

I think that the Contents have it.

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[The Deputy Chairman of Committees]

That is exactly what happens. I am grateful to the noble Lord. It will go back to the Government and they will decide when and if they take the regulations to the Floor of the House.

[Lord Marlesford]

That presumably means that unless they come back this week or next week, because Parliament does not come back until 12 October, it would be impossible for this statutory instrument to be brought into effect on 1 October.

[Baroness Finlay of Llandaff]

My Lords, perhaps I may suggest that there is other business to consider and it will be up to the Chief Whip to determine the timetable. We have a sitting Friday coming up, when it is possible to consider this matter. That will be up to the Chief Whip and we should now move on.