My Lords, I shall speak to Amendments 52A to 52C, 54A, 54B, 55B and 55C, which relate to Clauses 97 to 99. I also support the amendments in the name of the noble Lord, Lord Blencathra, and his comments, as well as those of the right reverend Prelate the Bishop of St Albans. It is in that spirit that I make these observations.
One issue that the building safety and cladding crisis has shone a light on is just how iniquitous residential leasehold tenure really is. The system of leasehold may dress itself up as home ownership. When I bought my flat 25 years ago, which was the first time I had ever bought anything or got a mortgage, I thought of myself,
very proudly, as a home owner—it was part of my growing up—but I now think that it was a bit of a mis-sell, as I am nothing of the sort. As Rabina Khan, a Liberal Democrat councillor in Tower Hamlets, puts it—she has been very insightful on all these issues—in effect:
“Leaseholders are tenants when it comes to rights, but owners when it comes to paying any bills. Yet they have no control over the contractor, costs or scope of any works. They must pay up pretty much whatever is demanded by the freeholder landlord and their agent.”
Under Part 4 of the Bill and the clauses that I am referring to, building owners are given sweeping new rights in relation to entry to and surveillance of leaseholders’ homes in the name of safety and fire prevention, even being able to force entry if the leaseholder does not admit entry to their own homes by a set time. Leaseholders who I have spoken to are concerned that these Part 4 provisions could be used to threaten and harass leaseholders, are overly intrusive without affecting fire safety in any real way, and, more broadly, feed into a dangerous atmosphere —which we are familiar with from the Covid period and lockdowns—of dispensing with civil liberties and privacy too easily under the auspices of safety.
My amendments to Clauses 97 to 99 come as package. They seek to tighten up the drafting to ensure proportionate actions that do not leave leaseholders open to either false accusations or blame for safety issues, so that it does not become yet another vehicle for forcing leaseholders to pay ever more money, and they would respect the rights of leaseholders as home owners.
Clause 97 places a duty on every occupant of a high-risk building not to interfere with safety features. The focus here is making it clear that residents have a duty not to affect the safety of the building. My amendment to Clause 97 makes it clear that this duty is breached only where there is material interference. This change would, for example, avoid someone being found in breach of the duty if they accidentally broke the glass in a dry-riser door or accidentally broke a hinge on a fire door because the current drafting would treat them not as accidents but as breaches of duty in the same way as someone deliberately disabling a fire alarm.
Clause 98 allows an accountable person to send a notice, possibly demanding money, if the accountable person knows or, importantly, just suspects that there has been a breach of this new residents’ duty. Again, this section has no materiality threshold, so it can be triggered by any breach that the accountable person feels like enforcing. As it stands, it is far too subjective. It is blatantly open to malicious misuse or just a promiscuous and ever-growing risk-averse blame culture targeting leaseholders as culprits. The amendment I have put forward tightens the clause up to focus on material breaches that the accountable person can evidence—a key point.
Clause 99 is on the power of entry. The current drafting allows the accountable person to demand access for any reason, including mere suspicion of a breach of duty. This demand for access can be given with as little as 48 hours’ notice. If access is not given in that timeframe, the accountable person can then obtain a court order, possibly without a notice to the person affected. This makes what should be a last resort possibly a new normal, and, I argue, a new draconian normal.
The amendment I have proposed to Clause 99 would require that the new building safety regulator issues a code of practice on how exactly this power is to be used after consulting a tenants panel. That is not a perfect solution, but at least the onus would be on the accountable person to comply with the code of practice when making requests for access to people’s homes.
As has already been mentioned by a number of speakers, I am not trying to paint a picture of dastardly freeholders, building owners or managing agents gleefully harassing leaseholders or threatening to kick their doors down, but for me one of the inevitable consequences of a disproportionate zero-risk attitude to building safety with an ever-growing proliferation of demands and duties placed on the accountable person, requiring that they check, check and check again, means that we end up where the Secretary of State, Michael Gove. warns us not to end up. In another context he has warned of the dangerous overzealousness of inspections, unnecessary surveys and precautionary, just-in-case assessments.
All this fuels the notion that not only is every flat a fire hazard but that every owner of a flat is a fire hazard too. As soon as safety measures become a disproportionate fear, they can lead to perverse outcomes. In June 2020, before the Public Bill Committee, L&Q, one of the biggest social landlords, responsible for 95,000 homes, including leaseholders and shared ownership properties, complained about the difficulties of accessing the front doors of leaseholders, implying that leaseholders who refuse to go along with its neverending fire safety upgrades might be putting lives at risk. Its spokesperson said:
“With tenants, we might be able to go to court and get injunctions and get injunctions to gain access to a home, but with leases, that challenge becomes even more difficult.”
That was said as a matter of regret.
This attitude means that these provisions presume that leaseholders cannot be trusted. I think they imply a certain contempt that treats leaseholders as ignorant or stupid or both, as though, if left alone, away from the wise and sensible landlord or his or her appointed overseer, they might set up a barbeque in the living room, rewire their own flats even though they are not electricians, be like children irresponsibly playing with matches or wilfully destroy safety equipment, as the noble Lord, Lord Blencathra, mentioned.
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The inference is that the building owner or freeholder needs to be able to keep an eye on what goes on behind the door of our homes and to have easy access regardless of leaseholders’ rights. I do not exaggerate; the trend is to treat flat owners as though they have no more rights than renters—who should, by the way, have more rights. To quote the complaint from the L&Q spokesperson to that committee:
“It is their private space and we cannot touch it.”
He went on to suggest that leaseholders’ property rights ought to be curtailed in the name of safety:
“Ultimately, if there was a way of transferring ownership of a leaseholder’s property through legislation so that it is no longer theirs but the building owner’s, that could solve the problem”.—[Official Report, Commons, Fire Safety Bill Committee, 25/6/20; cols. 12-13.]
It certainly would, but I think we can see the direction of travel here, and it is not in the direction of leaseholders’ rights.
Because of the devastating death toll of the Grenfell tragedy, the emotional weight of these clauses seems to overcome any squeamishness about leaseholders’ rights and civil liberties. Even in pragmatic terms, these clauses will not enhance safety, although I think that leaseholders’ rights and civil liberties should not be dismissed so easily in the name of safety.
On the safety question, entering people’s homes would not have spotted the cause of the fire at Lakanal House in south London in July 2009, when six died and 20 were injured, as the fire started because a TV developed an electrical fault. Entering people’s homes would not have prevented fire at New Providence Wharf last May, where a faulty circuit breaker ignited. Nor would it have prevented the fire at Grenfell, where the cause was a faulty fridge freezer, or in my own block of flats in Haringey, where the block catching ablaze in the first lockdown—I have still not returned—started because of a fridge fire in another flat.
No one could have known that these appliances would fail. There will be similar issues in future, no doubt, but the shocking thing about those fires is not that each of them happened but that the damage and death was worse than it should have been, partly because of a failure to maintain fire safety systems, not because of a lack of surveillance of leaseholders’ activities in their own homes. We need to row back from potentially blaming leaseholders.