Monday, 13 May 2013

Annie Get Your Gun

Having had John  Young and the JEP headline "A Snooper's Charter", we now have the embattled Anne Pryke fighting back all guns blazing. The JEP headline reads in huge bold letters "Here's Why We Want New Powers".  There are pictures of damp walls and rat infested buildings. As the JEP puts it "From vermin infestations and foul toilets to collapsing ceilings and leaking roofs, the pictures depict the sorry state of the accommodation some people choose - or are forced - to live in."
The JEP report also notes: "The department's plans to give inspectors the power to enter people's homes and impose sanctions on Islanders who breach health regulations have been defended as 'reasonable, consistent and proportional' by the Health Minister."
"There is no intention for any property to be inspected unless referred to us or the subject of a complaint", she says in a letter to be published. Who could not want this? It is made clear that as far as owner-occupied properties are concerned, they would only ever be inspected in exceptional circumstances.
But where is the provision only to act if the property is referred to them or the subject of a complaint? I can't see that provision in the Draft Law. If it is an intention, why not include it in the law? Why make this purely something of an extra comment on how she sees the law being operated?
Likewise, if there are exceptional circumstances for owner occupiers over health, and she outlines that "it would be our intention merely to make them aware of such risks to enable them to make an informed choice about their lifestyle", why aren't those exceptional circumstances listed in the law? Why isn't the intention listed in the law?
It is surely a very bad law that depends so much on "intentions" of those policing the law, and not on restrictions within the law itself. Because the obvious question is: what if the intentions change? It is all very well for her to say "it is not our intention", but that's the situation now. Can that be guaranteed for the future? Only if it is placed within the body of the law, and it is not!
But as Sarah Ferguson notes, there are stringent procedures applied to force compliance with this law: "The Minister will define hazards and the inspectors will then be able to give 24 hours notice that they will be in to review for hazards" No sign of intention there in the law, and it seems to exist only in Anne Pryke's mind, or in some document of intent which for some reason has not made it into the final draft of the law.
Mike Dun, writing on Facebook, suggests that "The threat that some of the greedy landlords who have been letting grotty accommodation for years at huge rents might be called to account is being resisted."  Mike fails to see that the criticisms have nothing to do with legislation being drawn up to tackle that problem; it is the fact that this legislation sets out to do far more than its principal intent. It has been drawn up in the broadest possible way. Ironically, Mike castigates the critics as those "who still not grasped the most basic of International Conventions to protect Human Rights". It is unclear how giving the State such powers of entry to every dwelling on Ministerial order is an improvement of human rights.
Mike also puts the justification for this in terms of particular examples:
"Health authorities especially need powers to enter premises when people have not be seen for some time - or a neighbour smells gas, or a person is known to be ill or unable to fend for his/herself. Something as simple as a broken ankle can immobilise a person of any age and it is usually better to investigate that all is well before the smell of a rotting corpse signals an alarm. Different standards may apply of course to elected and non-elected States Members - their long absences from public view are often beneficial to the public good."
But he is chasing red herrings. As Sarah Ferguson notes "These powers already exist - this law is not for that purpose.. In fact I have, as a centenier and on a number of occasions, entered a property when concerns have been raised about the occupant so why do we need a new law?"
In fact, in general, it should be noted that there are already laws that can be used to tackle 'slum landlords'. If in essence what is being said is that they are insufficient, then let's first determine what those insufficiencies are and amend existing laws as (or if) necessary.
As Trevor Brown comments in a letter to the JEP "Apparently, the Health department have evidence of poor housing conditions experienced by some tenants. If that is so, and I do not disbelieve it, then landlords should be properly dealt with under existing Housing Law, and if that Housing Law is inadequate for the purpose, then clearly it should be amended as a matter of urgency."
There are already - as Sarah Ferguson notes - sufficient laws regarding powers of entry and all are geared to specific circumstances precisely to avoid any abuse. 'Reasonable grounds for cause ....'.
So, if a tenant, neighbour, health worker, GP or whoever reports poor or substandard conditions, that should be reasonable grounds. That should also come with penalty to the complainant if there were any malicious intent involved, spurious call it what you will. The extension to private property is in my opinion an extreme abuse of authority and liberty if that is not otherwise supported by evidence that it poses a health hazard to others. The Environmental Health Officers are already empowered to with a right to enter property on  evidence that a public health hazard exists.
But there is none of this kind of thinking enshrined in the law, instead it is left to "our intentions" as declared by Anne Pryke. Perhaps an amendment would be to add her letter as a letter of intent to the end of the law, with an extra clause to say that all the articles in this law would be restricted by the operation of this letter of intent. As it stands, it is as open ended as a blank cheque, made out to bearer.
What Mike Dun has also failed to notice is the extras tagged onto the draft law, although they come as part of the main proposition; there is no indication that they are extras.
The Minister may make Orders for the purposes of -
(a) securing the health and safety of persons in or about dwellings;
(b) furthering the conservation of fuel and power; and
(c) furthering the conservation of water by, for example, preventing waste, undue consumption and misuse of water.
Anne Pryke has been concentrating her defence wholly on (a) and there is nothing here on (b) or (c), although the letter published in full on Monday might just throw up some rationale.
Why is the law framed to deal not just with heath issues but also energy use and water consumption? Energy is supplied privately. Water is supplied privately. And given the cost of fuel and power, and the increasing programme of water metering, is it likely that people are not conserving as much as they might?
I think it is because they have been taking ideas from the "National Customer Charter for Building Standards"
This provides information about the minimum standards of service that all local authorities should meet, and has a three pronged approach to that:
(a) To secure the health, safety, welfare and convenience of persons in and about buildings and others who may be affected by buildings or matters connected with buildings;
(b) Furthering the conservation of fuel and power, and;
(c) Furthering the achievement of sustainable development.
And if you look at the Guildford Building Control system, for example, you have something even closer:
"The Building Regulations apply to building work in England and Wales and set standards for the design and construction of buildings to ensure the health, safety, welfare and convenience of persons in or about buildings.  They also include requirements furthering the conservation of fuel and power, preventing waste or undue consumption of water and facilitating sustainable development."
That is why you have the details about fuel and power and water. It is all about building regulations. And the wording is so close to the Jersey law that it simply cannot be coincidence.  It includes points (a) (b) and (c) in almost the same words.
What seems to have happened here is that UK building regulations have been taken and transformed under the draft law into health regulations. That's why you get inspections - "Each team carries out the whole range of building control functions within its area including plan checking, site inspections, dealing with demolitions and dangerous structures, administration of competent persons schemes and certificated work."
Essentially, the UK building regulations are being smuggled in under the guise of Jersey health regulations, in the hope that no one spots where it is coming from.
What kind of impact could curbing excessive water consumption  in the draft law have on property owners, including owner / occupiers? Now that we have the source for the idea, it is simple. One example would be to "initiate carbon emission savings for the environment through the introduction of a mandatory building standard requiring basic water efficiency measures in dwellings"
And we can see the same thing in the Building (Scotland) Regulations 2004 which presumably we might have to comply with in all houses under the new Jersey health law: "Introducing mandatory water efficiency measures through the building regulations, to the most commonly used sanitary facilities in homes, will reduce the amount of household treated water used and associated waste water generated. Additionally the household will save on water heating / energy costs and contribute to the reduction in carbon emissions to the environment."
Is it right for the Health Minister to introduce what are in fact building regulations, and would be seen as such in the UK? That is another question for the States to consider,. Shouldn't that come under the Planning Law? Or is it thought that she stands a better chance of bringing it in, or Rob Duhamel might rightly have doubts about its rather draconian measures?


Nick Le Cornu said...

Surely the Rana Plaza collapse in Dhaka, with the death of 1000 workers, illustrates the need for legislation that concerns builiding safety and hazards poseed to public safety.

No doubt Banglasesh has protective legislation but it is more honoured in the breach. Corruption and exploitation will ensure it is ignored.

TonyTheProf said...

Nick, this law deals with dwellings, not workplaces. There is a considerable difference.