Clause 46 - Powers of entry: notices

Fire and Rescue Services Bill – in a Public Bill Committee at 3:15 pm on 2nd March 2004.

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Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government) 3:15 pm, 2nd March 2004

I beg to move amendment No. 144, in

clause 46, page 23, line 17, at end insert

'(not being the dwelling in question)'.

One of the hazards of the job on this side of the Committee is that it can become rather difficult to keep pace if the velocity gets too great. Clause 46 deals with notices for power of entry to a dwelling. It provides for notice to be given to the occupier of the dwelling, and subsection (3) deals with interpretation of the phrase ''proper address''. It is necessary to have an appropriate definition of that phrase in order to establish that notice has been properly served. In many cases, the former occupier of a dwelling that has become unoccupied because of a fire will provide the investigating fire officer with a forwarding address; for example, if he has gone to stay at a local hotel or with his granny.

My concern is with subsection (3)(b), which gives the definition

''in any other case, his last known address.''

If the former occupier has not given a forwarding address for official contact, his last known address will likely be the address of the fire-damaged dwelling. It is not satisfactory to allow that a notice has been properly served simply by posting to the last known address, if that address is the fire-damaged premises.

There is already a power under subsection (4) to affix a notice to the subject premises as a fall-back if the person cannot be contacted in any other way. That is a perfectly reasonable last resort power. It is not acceptable to post the notice to the premises, as that is not the same as affixing it prominently. It will probably not be delivered or, if it is, depending on how badly damaged the premises are, it could get completely lost. It would not have the same effect.

The amendment would preclude proper service to the last known address of the former occupier if that address is the damaged premises. I may not have explained its effect very clearly—it is quite a tortuous issue—but I hope that the Under-Secretary appreciates my argument and has some sympathy with it.

Photo of Phil Hope Phil Hope Parliamentary Under-Secretary, Office of the Deputy Prime Minister

I understand the hon. Gentleman's intention. However, if we were to accept the amendment, it would give rise to undue complication in serving a notice. The formulation in subsection (3) is a common form used for the service of notice. The phrasing of the amendment would mean that if a dwelling were unoccupied and there was no forwarding address, the correct address could be an address that the individual lived at 40 or 50 years earlier. Alternatively, there could simply be no known address. I understand the hon. Gentleman's intention, and his point that subsection (4) deals with that by referring to pinning up a notice. However, his amendment would create a complication in dealing with matters under subsection (3) and, consequently, it would cause difficulties in tracking people down. It would result in complications involving serving notice on addresses at which people had lived many years before. That is not how he or I want to proceed, and I hope that he will withdraw his amendment.

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government)

I accept entirely the first part of what the Under-Secretary said. He is quite right about the way in which the amendment is phrased: it would be absurd to have a notice served at an address that was known to be out of date. What he did not go on to say was, ''However, we acknowledge the issue that is being raised, and if the hon. Gentleman will withdraw his amendment, we will find a better way of dealing with the problem.'' I still think that there is a problem. It clearly is not appropriate to serve the notice to a fire-damaged premises by post; it is appropriate to pin it on the fire-damaged premises. I urge the hon. Gentleman to think about that. If we believe that it is necessary for notice to be given, it cannot be given by post to an unoccupied, damaged premises. Obviously, there is a

range of damage, but in an extreme case we will be talking about premises that are uninhabitable, and it would not be appropriate for notices to be served by post to them.

Photo of Richard Younger-Ross Richard Younger-Ross Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions

I agree with the hon. Gentleman. If, following a fire in a kitchen, there was a lot of flood damage to the rest of the property because of water from the hoses, which made it uninhabitable, there could be large areas of the property where powers of entry could do damage and where there would still be personal possessions.

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government)

The hon. Gentleman is right. We can all envisage the situation: the premises have been damaged, and the person who was occupying them has moved out, but there are enough of his things there to make it reasonable that he should have notice if someone is going to come prodding around in his possessions. How do we get notice to him? In 90 cases out of 100, we will know where he is and it will not be a problem. In the other 10 cases, we can pin the notice on the premises. If he is a diligent occupier he will probably have a look very regularly to ensure that his semi-secure premises still have not been broken into or squatted in. However, it is not satisfactory to have notice served on him by post at those premises.

Photo of Phil Hope Phil Hope Parliamentary Under-Secretary, Office of the Deputy Prime Minister

The hon. Gentleman is making a good point that was supported in an intervention, and although I did not say that we would go away and look at this, I am listening carefully to what he has to say. I will go away and consider the matter, but I still ask him to withdraw his amendment, which causes us difficulties.

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government)

I am glad that I persisted for the extra two minutes. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to consider Government new clause 6—Powers of entry: notices given electronically.

Photo of Phil Hope Phil Hope Parliamentary Under-Secretary, Office of the Deputy Prime Minister

New clause 6 allows for documents to be served by electronic means such as e-mail. If that method were used, it would have to be by prior agreement with the person concerned. The new clause is necessary only because of an oversight during the drafting of the Bill. It is in line with the Government's policy on e-service of documents and with provisions in the Communications Act 2003. It would allow the occupier of premises who wished to be notified by electronic means to be so notified. The e-mail address to be used would have to be agreed by both parties prior to any document being served. That will be of use where a fire has occurred and the occupier is absent.

I hope that, with those few words of clarification, the Committee will agree to the new clause.

3.30 pm

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government)

We touched on this subject this morning and were steered away from it by your co-Chairman, Sir Nicholas.

I have one question for the Under-Secretary. I understood that, by virtue of legislation that the House has already passed, any references to notices in writing can be construed as including electronic communications. What the new clause does is unexceptional and we have no problems with it, but why do we need it at all? I thought that in considering draft legislation, such provisions were routinely not detailed and that that was the purpose of introducing the Communications Act 2000, which provides that whenever the phrase ''in writing'' is used, it encompasses ''in electronic form''. Incidentally, he could confirm that new clause 6 encompasses the now rather Jurassic technology of faxing as well as the more up-to-date technology of e-mail, but can he also explain why we need it at all?

Photo of Phil Hope Phil Hope Parliamentary Under-Secretary, Office of the Deputy Prime Minister

First, I can confirm that the new clause includes faxing as well as other electronic forms of communication such as e-mail. The key point is proving legal service. I know that that was mentioned this morning when I was not in the Committee.

Although the hon. Gentleman is right to say that the 2000 Act encompasses e-mails as a written form of communication, we wish to establish the conditions by which the process would occur, because it is a legal form of serving a notice. We wanted to include in the Bill the conditions under which such notice would be served, because it proves legal service of notice. That is why we wanted to include, over and above what is specified in the Act, the conditions in which such enforcement would be operated.

Photo of Philip Hammond Philip Hammond Shadow Minister (Communities and Local Government)

Is the Under-Secretary saying that the conditions in which electronic means of service can be used under clause 44 are different from those provided for more generally where electronic service of notice is taken to be good service of notice?

Photo of Phil Hope Phil Hope Parliamentary Under-Secretary, Office of the Deputy Prime Minister

I am saying that new clause 6 spells out some of the conditions relating to powers of entry and giving notice electronically. What we are describing is entirely consistent with provisions in other Acts, but we still need to say it because those provisions are of specific importance to the powers, and we wish to make clear what is required when notices are served in this way.

Question put and agreed to.

Clause 46 ordered to stand part of the Bill.