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Mr. Hammond: I accept what the Under-Secretary said about amendments Nos. 136 and 137. On reading the text with the benefit of his explanation, I can see the logic.
On amendment No. 132, although I still think that the phrase ''as of right'' is unusual and not consistently used throughout the Bill—we could go right through the Bill and refer to the exercise of each power created ''as of right'' rather than in accordance with the powers granted under whichever subsection—I also accept that it does not matter that much.
The distinction between a private dwelling and a dwelling is genuine news to me. I will have to go away and try to understand that a bit more. I have taken on board the reference that the Minister has given and I shall try to understand the issue.
Richard Younger-Ross (Teignbridge) (LD): To help with the hon. Gentleman's understanding, my recollection is that the Fire Precautions Act 1971 distinguishes private dwellings from ''common parts''. There are therefore clear definitions in legislation of private property and of common parts.
Mr. Hammond: The hon. Gentleman has obviously read that fascinating statute, which I cannot claim to have done. I certainly had not appreciated that the term ''dwelling'' encompassed two things: a private dwelling and common parts. Immediately into my mind come various provisions of different Acts dealing with totally extraneous matter, such as planning, in which that definition would sit uncomfortably. I will need to go away and have a look at that. I am grateful to the Minister for his explanation, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 44 ordered to stand part of the Bill.
Clause 45
Powers of entry: supplementary
Mr. Hammond: I beg to move amendment No. 139, in
clause 45, page 22, line 8, after 'records', insert
'which he reasonably believes to be relevant to the investigation'.
Column Number: 365
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 140, in
clause 45, page 22, line 11, at end insert 'reasonably'.
Amendment No. 141, in
Amendment No. 142, in
clause 45, page 22, line 13, leave out from 'but' to third 'it' in line 14 and insert 'only if'.
Amendment No. 143, in
clause 45, page 22, line 16, leave out from 'but' to second 'it' in line 17 and insert 'only if'.
3.15 pm
Mr. Hammond: This clause deals with the powers of fire and rescue authority employees on premises that they have entered. The amendments would add a reasonableness test to the exercise of those powers.
Amendment No. 139 would limit the powers over documents to those that the employee, the authorised entrant, reasonably believes to be relevant. At present, there is no restriction and the authorised officer can inspect and copy any documents or records on the premises or remove them from the premises. I cannot see any qualifying provision anywhere that they must be relevant or reasonably believed to be relevant to the investigation or other matter under way.
Amendments Nos. 140 and 141 refer to the powers of inspection and testing and, again, would limit those powers to matters reasonably considered necessary to the investigation. That does not seem to be over-restrictive or unexceptional and, bearing in mind the Minister of State's extreme caution in our discussion a few minutes ago about creating wider powers, I should have thought that he would want to be clear that the powers that can be exercised are directly relevant to the investigation or matter in hand.
Amendments Nos. 142 and 143 would change the limitation on power to remove items from the current provision in the Bill, which is a blanket permission to remove items or take samples from items with the restriction only that it should be not so as to destroy the item unless necessary, to a more general restriction that there should not be such a power unless it is necessary. As I read the clause, a sample can be taken or an item can be removed so long as it is not destroyed or damaged, unless it is necessary to do so. However, the unless-it-is-necessary test should apply to removing the item in the first place. That is what the amendments seek to ensure, and I look forward to the Under-Secretary's comments.
Phil Hope: Amendments Nos. 139 to 141 seek to clarify when the powers provided by the clause may be used. The amendments are unnecessary because the powers themselves are exercisable only for the purpose of investigating the cause of a fire or fire spread pursuant to the power of entry for that purpose provided by clause 44(1). The authorised person must act reasonably in any event because those powers are for the purpose of investigating the cause of a fire or fire spread. There is, therefore, no need to limit the power in the way intended by the hon. Gentleman.
Column Number: 366
The effect of amendments Nos. 142 and 143 would be to remove the power to destroy or damage an article or substance while taking a sample or dismantling an article, which is provided by the words
''not so as to destroy it or damage it''
in subsection (2)(d). A fire investigator must be able to investigate a fire properly by dismantling an article and taking samples, and that may, of necessity, involve some damage. However, the clause provides that damage to property may be deliberately inflicted only when it is necessary, which, by virtue of clause 44, means that it is necessary for the purpose of the investigation. We are describing all those powers in relation to clause 44(1), which is for the purpose of fire investigation. With that explanation, I hope that the hon. Member for Runnymede and Weybridge will accept that his amendments are unnecessary.
Mr. Hammond: I am not a lawyer, but I can readily see the Under-Secretary's point. However, it is not immediately obvious to me that, if an entry under the powers in clause 44(1)(a) or (b) is effected, the actions taken thereafter are limited to those that are necessary in pursuance of the original cause of entry, which is what the Under-Secretary is saying. Entry having taking place under those powers, there is then a blanket built-in presumption that every action taken, even if specifically authorised in different terms, has implicitly within the authorisation the caveat: in so far as it is necessary for the purpose for which the original entry was effected. That is not self-evident, but the Under-Secretary made that point.
I shall discuss the matter with the shadow Attorney-General, who will probably tell me that the Under-Secretary is right, even though his interpretation is not obvious to me. If I am told otherwise, the hon. Gentleman will hear from me in due course. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 ordered to stand part of the Bill.
Clause 46
Powers of entry: notices
Mr. Hammond: 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.
Column Number: 367
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.
Phil Hope: 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.
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