New Clause 5 — Building regulations relating to emissions and use of fuel and power: time limit for prosecutions

Orders of the Day — Climate Change and Sustainable Energy Bill – in the House of Commons at 12:00 pm on 10th March 2006.

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'(1) After section 35 of the Building Act 1984 (c. 55) insert—

"35A Time limit for prosecution for contravention of certain building regulations

(1) Despite anything in section 127(1) of the Magistrates' Courts Act 1980 (c. 43), an information relating to a relevant offence may be tried by a magistrates' court if it is laid at any time—

(a) within the period of two years beginning with the day on which the offence was committed, and

(b) within the period of six months beginning with the relevant date.

(2) In subsection (1) above, "relevant offence" means a contravention of a provision contained in building regulations which is designated in the regulations as one to which this section applies.

(3) A provision may be designated under subsection (2) above if, and only if—

(a) it was made—

(i) for the purpose of furthering the conservation of fuel and power or otherwise in connection with the use of fuel and power, or

(ii) for the purpose of reducing emissions of greenhouse gases (within the meaning of the Climate Change and Sustainable Energy Act 2006), and

(b) contravention of the provision would be an offence under section 35 above.

(4) In subsection (1)(b) above, "the relevant date" means the date on which evidence sufficient to justify the proceedings comes to the knowledge of the person commencing the proceedings.

(5) In the case of proceedings commenced by a local authority—

(a) evidence is to be regarded for the purposes of subsection (4) above as sufficient to justify the proceedings if in the opinion of the proper officer or an authorised officer it is sufficient to justify the proceedings, and

(b) a certificate of the proper officer or, as the case may be, that authorised officer as to the date on which evidence which, in his opinion, was sufficient to justify the proceedings came to the knowledge of the person commencing the proceedings is to be conclusive evidence of that fact.

(6) Subsection (1) above does not apply in relation to a contravention of any provision contained in building regulations which was committed before that provision was designated under subsection (2) above."

(2) In section 53 of that Act (effect of initial notice ceasing to be in force), after subsection (6) insert—

"(6A) Subsection (6) above is without prejudice to any ability which, after that function has become exercisable, the local authority may have under section 35A above to commence proceedings for the offence after the end of that period of six months." '.—[Yvette Cooper.]

Brought up, and read the First time.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to discuss the following:

Government new clause 6—Building regulations to emissions and use of fuel and power: report regarding compliance

Government amendments Nos. 54, 56 and 57.

Photo of Yvette Cooper Yvette Cooper Minister of State (Office of the Deputy Prime Minister) (Housing and Planning)

I congratulate my hon. Friend Mark Lazarowicz on all the work that he has done on the Bill, and my hon. Friend Dr. Whitehead on his work on the issues relating to building regulations that are raised in the new clause. I also welcome the work that was done in Committee on this issue.

New clause 5 extends the time limit within which local authorities may bring prosecutions for breaches of those parts of the building regulations designed to conserve fuel and power. We will be strengthening those regulations—known as part L—from 6 April, so that buildings will be 40 per cent. more energy efficient than in 2002. They are particularly important in tackling climate change when building new developments.

If the regulations are to make a difference, they need to be complied with. The new clause will increase the time limit for action, so that if local authorities discover a breach up to two years after it has taken place, they can still take action in the courts, rather than having only six months, as they now do. New clause 6 also promotes greater compliance by asking the Government to report back to Parliament on the issue. Extending the time limits for local authorities to take action could improve compliance with all aspects of the building regulations, and we would like to extend to two years the period relating to all aspects of the regulations. However, only certain parts of the regulations fall within the scope of the Bill. We have therefore taken this opportunity to extend the time limit for the regulations relating to energy efficiency, but it is important to recognise that other aspects of the building regulations also need improvement in order to increase compliance.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Is the Minister not worried that this could cause confusion? If we are to have two different regimes operating, people might be unaware that only a partial change has been made. They might not know the status of each type of regulation, and whether it had a time limit of six months or two years. Will that not create difficulties?

Photo of Yvette Cooper Yvette Cooper Minister of State (Office of the Deputy Prime Minister) (Housing and Planning)

Clearly, it would be better to be able to extend the time limits for all the building regulations at the same time, but that is not within the scope of the Bill. However, we shall seek to extend the provisions to all the other regulations at the earliest opportunity. It is right that we should make the most of this opportunity, given the impact that it could have on improving compliance with the energy efficiency regulations, and the benefits that that could have for addressing climate change.

Photo of Michael Fabricant Michael Fabricant Opposition Whip (Commons)

Is the Minister aware of my concern that building regulations have driven a lot of good electrical engineers out of business? Will she assure me that the new clauses will not adversely affect such traders?

Photo of Yvette Cooper Yvette Cooper Minister of State (Office of the Deputy Prime Minister) (Housing and Planning)

I cannot see why the new clauses would affect such traders in any way. They are simply about giving local authorities more chance to pursue breaches of compliance, and it is right that they should be able to do so.

New clause 6 requires Ministers to report back to Parliament on the steps taken to improve compliance with part L and related provisions. We intend to do that, and we take the matter very seriously. If the Bill passes in a timely way, it is our intention to make the report in January 2007 and to include in it matters such as pressure testing, which we are introducing from this April.

The new clauses will be a helpful way of improving compliance with the building regulations. Given the importance of having high standards in the new homes that we need for the next generation, the provisions will add considerable value to the Bill.

Photo of Gregory Barker Gregory Barker Shadow Spokesperson (Environment, Food and Rural Affairs)

When this issue arose in Committee, it usefully exposed a flaw in the Bill which we thrashed out at the time. I am glad that the Government have been as good as their word, and I thank the Minister for returning with a sensible proposal that I am sure all members of the Committee will welcome.

Extending the time within which prosecutions can be brought must not send local authorities the message that they can relax, and can delay investigation of breaches. The provision is not a way of buying them more time; it constitutes a recognition of the importance that we attach to effective enforcement.

As the Minister has heard, there was considerable dissatisfaction with her Department in Committee. While that was articulated by Opposition Members, including me, I think that it was felt throughout the Committee. I am pleased to see the Minister here today, however, and I hope that the constructive way in which she approached the Committee's deliberations on this issue will be reflected in more constructive consideration of other matters in relation to which concern about her Department was expressed in Committee.

Photo of Alan Whitehead Alan Whitehead Labour, Southampton, Test

I welcome the new clauses. One of the Bill's aims is to ensure that account is taken of ways in which new build can deal with its own energy needs and consumption, which will not be possible in the long term without proper compliance with building regulations in their current or future form. The new clauses make that possible in a practical fashion, and I thank the Minister for proposing measures that will increase the breadth of the Bill.

Photo of Andrew Stunell Andrew Stunell Shadow Secretary of State (Office of the Deputy Prime Minister), Shadow Chief Whip (Commons), Liberal Democrat Chief Whip, Liberal Democrat Spokesperson (Office of the Deputy Prime Minister)

I welcome new clause 5. There is clear evidence from the Building Research Establishment that most new homes do not comply with the current building regulations. As we raise standards—regrettably, not fast enough or far enough—the risk will increase, as will the need for effective enforcement.

I am pleased that the Minister has proposed these measures. As we heard from Gregory Barker, in Committee her Department was subjected to sustained criticism from me, among others, because of its unambitious approach to the implementation of effective building regulations and improvements in energy efficiency and conservation, not just in the housing sector but throughout the built environment.

I hope that, having taken this important step, the Minister will take a second look at the Sustainable and Secure Buildings Act 2004, which I was fortunate enough to promote successfully in the House. The Act proposes that a responsible and accountable person should carry the can for compliance with regulations in the case of each building project. Enforcement becomes a great deal easier if someone on the contracting side is responsible for compliance.

I also welcome new clause 6, which gives the Government a duty to report. I hope that it will give Parliament an opportunity to remind the Minister annually that we still think she has not done enough to bring this part of her Department's work under control.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

It is a very long time since I was a Minister in the equivalent of the Minister's Department, but I recall that in those days, it was the building inspector's responsibility to look at a building's construction and to decide whether the building regulations had been complied with. We privatised the building inspectorate so that a range of different people could carry out building inspection responsibilities, and my understanding is that it is already incumbent on the person constructing or seeking to alter a house to employ a building inspector. If so, why should a building inspector so employed not ensure that a building complies with the regulations? Andrew Stunell thinks that—even before the new, much more stringent regulations come into force on 6 April—the majority of new houses do not comply with the building regulations.

Photo of Andrew Stunell Andrew Stunell Shadow Secretary of State (Office of the Deputy Prime Minister), Shadow Chief Whip (Commons), Liberal Democrat Chief Whip, Liberal Democrat Spokesperson (Office of the Deputy Prime Minister)

That is not my opinion; it is the result of a survey carried out by the Building Research Establishment. It identified the cause of the problem—the privatisation of the building inspection regime that the hon. Gentleman has just boasted about.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

That is a bit of a non sequitur, is it not? As a result of such privatisation, house builders are entitled to ask a range of different people to carry out building inspections. If a builder fails to employ a building inspector or to produce certificates, they fail to comply with the building regulations. However, under the new clause, instead of the onus being placed on the building inspector, it is the constructor who will be subject to prosecution, and long after the event.

The extent of the powers being taken in the new clause is absolutely unconscionable. The normal principle in a magistrates court is that someone has to receive a summons or similar information within six months of committing an offence, and we know how that process operates with speeding or other motoring offences, for example. Unless someone is charged within a maximum of six months of committing such an offence, it is, in a sense, time-expired. The thinking behind that principle is that such a person cannot possibly recall exactly what they were doing more than six months after laying such information before a court.

That is the background to section 127(1) of the Magistrates' Courts Act 1980, which provides an important safeguard against the abuse of arbitrary power. In essence, it says that anyone who is going to charge somebody with an offence had better get on with it. There is no reason why building inspectors should be unable to have the relevant information at the time when the building in question is being constructed. Six months is obviously a reasonable period within which they or the owner of the building can be prosecuted if there has been a failure to comply with the regulations. Why should the period be extended beyond that?

Implicit in the new clause is the belief that there is a problem with identifying whether there has been a breach of the building regulations, but surely such matters should be the responsibility of the building inspector, who has a statutory duty in this regard. If there is collusion between a building inspector and a developer—it seems that the hon. Member for Hazel Grove thinks that that has been happening—that is a separate issue. That would be a conspiracy to break the law. There is no time limit for the initiation of prosecution. Conspiracy is a serious criminal allegation and a serious criminal charge. If there is a conspiracy between a developer or the builder of a house and a building inspector to try to mislead on whether the building regulations have been complied with, that is not covered by the time limit, because that would be a conspiracy.

In a situation short of a conspiracy, why do we need to make an exception to the general principle that is set out in section 127(1) that for such an offence any information should be laid within the period of six months? In the new clause, the Government are saying that such information can be laid within two years rather than six months. That is subject only to the qualification that information is laid within six months beginning with what is described as "the relevant date". That is the date

"on which evidence sufficient to justify the proceedings comes to the knowledge of the person commencing the proceedings."

An incredibly wide power is being taken by the Government. Subsection (5) says that if the person bringing the proceedings is a local authority—it does not matter if it is anybody else—

"evidence is to be regarded . . . as sufficient to justify the proceedings if in the opinion of the proper officer . . . it is sufficient to justify the proceedings."

In other words, there is no objective assessment. There is no scope for this to be justiciable in the court. Why not? Why is the power of the court being ousted in terms of whether or not the person, in bringing the proceedings, should have known, could have known or did know that the offence had been committed prior to the period of six months beginning with knowledge of the information?

Why should that power be contained in the subsection? Surely the test of whether the relevant date has been satisfied should be an objective one that the court can investigate as to when the knowledge of the person commencing the proceedings was such that he or she felt that there was sufficient information to enable the proceedings to be brought.

Paragraph (b) is a further affront to those of us who believe that evidence should be assessed by courts rather than on the basis that the evidence is as it is if some official says it is. That is no way in which to bring people to conviction following a prosecution. Why is it that this issue is not to be allowed to be justiciable? That is outrageous and entirely over the top. Of course, that is typical of so many things that the Government are doing at the moment. They are playing fast and loose with our civil liberties. This is a little measure to be brought in under the umbrella of a Bill that people may think is of no great issue. The result could be that people, long after the event, are being accused of offences, and at that stage no longer having the material available to enable them to defend themselves. That is the essence of the proposal before us. I am extremely concerned that the Government should want to introduce such a measure.

Like much regulation we see in this House, the provisions we are considering are based on a failure to ensure that the existing system operates properly. We have a system of building regulations and a requirement, which is separate from planning permission, for a building inspector's approval of new houses and alterations. Now we are saying that, notwithstanding that approval and even in cases in which there is no conspiracy, if it comes to light within two years that there has been an alleged breach of building regulations, it will result in a prosecution. In my submission, that could end up—as my hon. Friend the Member for Bexhill and Battle suggested—being counterproductive. Only time will tell, but the provision is in any case oppressive and should not be included in the Bill. I shall oppose it.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst 12:30 pm, 10th March 2006

On this occasion, I happily defer to the wisdom and experience of my hon. Friend Mr. Chope, who has had a distinguished career in local government, as a Minister in the relevant Department and as an eminent lawyer. His comments chime with my lay reservations about this part of the Bill. The Minister did not make much of an effort to give any really good reason for the change. It is no secret that new clause 5 is something that the Government want to do and they are slipping it into this Bill as a precursor to some wider measure. It always makes me suspicious when private Members' Bills are used as a vehicle to further the Government's purposes.

A worse prospect is the real possibility that confusion will arise between the proposed two-year period and the existing six-month period. What the Minister said, in effect, is that the two regimes will run side by side, both covering building regulations and local authorities, from whenever this provision reaches the statute book—I hope that it does not—and whenever the Government get around to introducing a broader dispensation. We should not be in the business of increasing confusion. If the Government want to make such a change, they should introduce it properly so that it may be scrutinised properly.

The most worrying aspect was pointed out by my hon. Friend, based on his legal experience. Even a cursory reading of new clause 5 would make one suspicious that it would radically alter the balance between the individual and the authorities. We should always be very suspicious of such a change and, in my view, we should resist it unless an overwhelming case is made for it. We have not only not heard an overwhelming case today: we have not heard any real case at all. That should give us considerable cause for concern.

New clause 5(5) states:

"In the case of proceedings commenced by a local authority . . . evidence is to be regarded for the purposes of subsection (4) above as sufficient to justify the proceedings if in the opinion of the proper officer or an authorised officer it is sufficient to justify the proceedings".

If that is not an example of untrammelled power, I do not know what is. We do not even know who these authorised officers might be, nor what restrictions might be placed on the giving of the power under the new clause. That is a very worrying development.

Of course, we will be told that the new clause is all right, because it is going to save the planet. It is not all right. It will not save the planet, but even if it would, we would want much more justification than has so far been offered for what appears to be a fundamental shift in the balance between the individual and the authorities under the apparently innocent provisions in new clause 5.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Does my right hon. Friend agree that, if one looks at subsection 4, one sees that the issue relates to when the material came to the knowledge of the person commencing the proceedings, instead of when it ought to have come to his knowledge? If a building inspector employed by local authority fails to report something, notwithstanding that, the local authority will be able to proceed as though there was no information coming from that building inspector.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I agree with my hon. Friend. That raises the issue of why this matter was not aired in Committee. However, we have to be frank that one of the problems with Committee proceedings on private Members' Bills in particular is that the Committee members tend, not unreasonably, to be supporters of the Bill and there is a scramble between the Government, if they rather like the Bill, the promoter of the Bill, if he was not given the idea by the Government in the first place, and a compliant Opposition, which is the trend at the moment. Everyone is tumbling over each other to put more and more into the Bill. This measure is a classic case of what should have been done, if at all, in Committee, where it could have been properly scrutinised, instead of bobbing up at the last minute with very little notice to make this fundamental alteration in the law. For all these reasons, unless a much better effort is made to explain and justify this measure, I will not support it.

Photo of Yvette Cooper Yvette Cooper Minister of State (Office of the Deputy Prime Minister) (Housing and Planning)

With the leave of the House, I shall reply to the debate. I shall begin by responding to the points made by Gregory Barker who Mr. Forth just described as "the compliant Opposition" in this case. I am keen to take a constructive approach to the deliberations of the Committee where this matter was discussed and to the decisions of the Department. I wish him luck in trying to take similarly keen and constructive approach to the comments of Mr. Chope where he may have a little more difficulty.

I welcome Andrew Stunell to his new appointment shadowing the Office of the Deputy Prime Minister and congratulate him. I know he is interested in sustainability issues, and I look forward to having many debates with him on that issue. I assure him that we are looking at the questions he raised in his private Member's Bill about appointed persons and other matters as part of the current review of existing buildings and how to improve their sustainability.

It is important to recognise that in April energy efficiency standards will be raised by 40 per cent. compared to 2002. We have already introduced a series of measures to improve compliance, including on training and pressure testing, all of which we need to address as part of the report called for under new clause 6.

The measures do not change the enforcement framework. At present, if a breach of part L of the building regulations is discovered seven months after work is completed on a building, the local authority cannot take action. The provision would allow action to be taken on discovery of a breach. That is a proportionate and sensible response to the concerns raised with the Government by local authorities and Back Benchers, and debated extensively in Committee.

I commend the new clause to the House.

Question put, That the clause be read a Second time:—

The House divided: Ayes 99, Noes 2.

Division number 185 Climate Change and Sustainable Energy Bill — New Clause 5 — Building regulations relating to emissions and use of fuel and power: time limit for prosecutions

Aye: 99 MPs

No: 2 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 541 MPs

Absents: A-Z by last name

Question accordingly agreed to.

Clause read a Second time, and added to the Bill.

Photo of Linda Gilroy Linda Gilroy Labour, Plymouth, Sutton

On a point of order, Mr. Deputy Speaker. May I raise the issue of the door that blocked my way as I was coming to vote? I was unable to vote, so I will report the matter to the staff of the Serjeant at Arms. However, I wish to place on record the fact that there was a blockage.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

I thank the hon. Lady for raising this issue. There have been occasions when defective door mechanisms have obstructed hon. Members. Fortunately, it was not crucial to the outcome of the vote today, but I regret the inconvenience to her and possibly to other Members. I am sure that now that the matter has been placed on the record, it will be dealt with as speedily as humanly possible.