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Mr. Raynsford: I hope that it will help the hon. Gentleman towards what seems to be his destination of withdrawing the amendment if I say that we shall certainly take on board his suggestion that we should consider how the new powers can best be publicised. We shall issue guidance to fire and rescue authorities on their new powers once the Bill has received Royal Assent and we shall consider how we can make the public more widely aware that, in the circumstances that the hon. Gentleman has highlighted, firefighters will be able to issue instructions that would involve a breach of the law if they are not complied with.
Mr. Hammond: I am grateful to the Minister. Perhaps one of those handy little flyers in a vehicle excise renewal notice or something like that would be appropriate. I believe that many of those in the example that I cited of the flooding last January thought, ''My vehicle is capable of driving through 6 in deep water because it is a brand new, four-wheel-drive vehicle'', and did not think through the implications for householders living on those streets. I am pleased that the Minister has taken that point on board. I am not 100 per cent. convinced, but given that the Minister clearly recognises the issue and is attempting
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to address it practically, it would be inappropriate to press the amendment. I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 ordered to stand part of the Bill.
Clause 44
Powers of entry
3 pm
Mr. Hammond: I beg to move amendment No. 132, in
clause 44, page 21, line 6, leave out from 'admission' to 'dwelling' in line 7 and insert
'by virtue of his powers under subsection (1) to any premises occupied as a'.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 133, in
Amendment No. 134, in
clause 44, page 21, line 9, leave out 'as of right'.
Amendment No. 135, in
clause 44, page 21, line 12, leave out 'private'.
Amendment No. 136, in
clause 44, page 21, line 29, after 'a' insert 'premises occupied as a'.
Amendment No. 137, in
clause 44, page 21, line 34, after 'any', insert 'reasonable'.
Mr. Hammond: Clause 44 deals with powers of entry other than in cases of emergency. Subsection (1) sets out the scope of those powers—the obtaining of necessary information for the discharge of the functions of a fire and rescue authority or the work of investigating a fire. Subsection (3) then sets out a limitation on those powers of entry in respect of dwellings. It is in that area that the amendments bite.
Amendment No. 132 seeks to do two things. First, it would remove the reference to admission ''as of right'', which seems to be a very broad and sweeping claim. ''As of right'' suggests something superior to any mere body of legislation, yet it seems that any powers exercised would not be ''as of right'' but by virtue of powers granted by subsection (1), which is somewhat more prosaic. Therefore, the amendment would replace the sweeping expression and replace it with:
''by virtue of . . . subsection (1)''.
That is much more modest and less threatening, and consistent with the normal form of drafting that we are used to.
Secondly, the amendment would remove the reference to ''a private dwelling'', substituting simply ''a dwelling''. That is a perfectly well used term; it is used throughout legislation—particularly planning legislation, which is within the remit of the same Department, so Ministers should be able to check that fairly quickly—and, indeed, elsewhere in this Bill. Subsections (3) and (4) refer to a ''private dwelling'' and subsections (7) and (8) to a ''dwelling''. That appears to be inconsistent.
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By my logic, if there is such a thing as a private dwelling, there must be something that can be juxtaposed with it, such as a public dwelling—but that does not make any sense. I asked myself whether the issue was about ownership of dwellings, but I am certain that that cannot be the intention. A dwelling is a dwelling; it is a place where somebody lives, and who owns it is immaterial. The concept of a public dwelling is rather mysterious to me. Perhaps a hotel is a public dwelling; perhaps the Minister will clarify that in due course. On first reading, the construction seems odd, and references are inconsistent throughout the clause—private dwellings in some places and just dwellings in others.
For the sake of consistency, amendments Nos. 133, 134 and 135 raise the same issue in relation to subsection (4), although the point is made by amendment No. 132. Amendment No. 136 is also an attempt at consistency. Subsections (3) and (4) refer to premises occupied as a dwelling, but subsection (7) uses only the word ''dwelling''. The amendment would create symmetry of language throughout the clause. It is the occupation, not any other characteristic, that seems to be the determining factor that makes it subject to the limitation.
Amendment No. 137 would restrict the right of entry by warrant to a dwelling in a non-emergency situation to during a reasonable time. It is sensible to have the power to get a warrant to obtain entry to a dwelling by force if necessary, but there is no obvious reason why such entry should not be limited so that it may occur only at a reasonable time. We do not want to create a regime under which entry can be effected by force under the power of a warrant in the middle of the night, unless there are compelling reasons and in emergencies. Why would it not be appropriate to add such a restriction?
The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister (Phil Hope): To address amendments Nos. 132 to 137, it may be helpful to set out the aim of the clause, although I know that the hon. Member for Runnymede and Weybridge has already done so. Its purpose is formally to authorise activities that the fire service undertakes for the public good, which might otherwise amount to trespass. It provides several safeguards so that a proper balance is struck between the rights of occupiers of dwellings and the public interest in ensuring that the causes of fires are investigated quickly and effectively.
Subsection (3) provides that an officer may not in exercising his powers of entry under subsection (1) demand admission as of right to premises that are occupied as a private dwelling without giving 24 hours' written notice to the occupier. The words ''as of right'' refer to the officer's powers under subsection (1), which makes amendment No. 132 unnecessary.
The term ''private'' is used to differentiate between private living accommodation, which a person should be able to occupy without undue interference, and common areas, to which others have access but form part of premises that might be considered to be dwellings. Those of us who have ever canvassed in flats with entry blocks know the difficulty of trying to gain
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entry by pushing all the entry phone buttons, and that is why we want to ensure that fire officers are able to do so. Removal of ''private'' is therefore undesirable.
Mr. Hammond: I was unaware that the common parts of a block of flats were construed as a dwelling. The Under-Secretary seems to be speaking authoritatively on the matter—[Hon. Members: ''Oh.''] I meant to say that he speaks more authoritatively than Ministers invariably do. I wonder whether he could tell the Committee from where that definition derives. Does it appear in a planning Act? I have never come across a distinction between private dwellings and dwellings.
Phil Hope: I hope that, by elaborating on and describing the terms in this debate, we are establishing the clarification that the hon. Gentleman requires, and that he therefore understands the difference between common areas—in flats and so on—and others. I will provide further clarification if any inspiration arrives.
Amendment No. 136 would restrict application for a warrant to premises occupied as a dwelling. That would preclude application for premises no longer occupied as such but for which there may be an urgent need for the cause of fire to be ascertained, as provided for in subsection (4). It is therefore not sensible to limit the powers of a magistrate in such circumstances.
The term ''private'' was first used in the Fire Precautions Act 1971. Another example of shared accommodation might be a kitchen. My son's shared kitchen at university might be regarded not as private but as a common area, yet we would of course expect firefighters to be able to gain access if necessary.
Mr. Hammond: The Under-Secretary says that of course we would expect the firefighter to be able to gain access, but I remind him that we are talking not about access in an emergency but routine access.
Phil Hope: For the purpose of an investigation.
Mr. Hammond: Perhaps for the purpose of an investigation, but perhaps to obtain information needed for the discharge of a fire and rescue authority's functions—routine inspection. It is not so abundantly clear to me that a kitchen does not form part of someone's castle, to use the expression of the hon. Member for Southport (Dr. Pugh), and ought to enjoy a measure of protection. In general, when there is no urgent need, we restrict the access of the authorities to private homes to times when it is convenient and by arrangement.
Phil Hope: I understand the hon. Gentleman's point. I want to emphasise the difference between private living accommodation, which an individual or family occupies, and shared or common areas. I have been trying to give helpful examples to illustrate why we needed to use the word ''private'' and not have it removed as according to his amendment.
With regard to amendment No. 137, subsections (7) and (8) provide that a justice of the peace may authorise entry to dwellings without first giving 24
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hours' notice in writing or where forcible entry is needed. Although those subsections allow the justice to authorise entry at any time, by force if necessary, their purpose is to provide a method of disapplying the restrictions on entry under subsections (3) and (4). However, they do not affect the basic provision provided in subsection (1) that the officer may enter only ''at any reasonable time''. The key point is that what is reasonable will vary according to circumstances, and be for the justice to determine. The amendment is therefore unnecessary.
Although the amendments have been helpful in teasing out some points for debate, I hope that, with those points of clarification, the hon. Gentleman will feel free to withdraw his amendment.
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