Who will pay for Yarl's Wood?

A wrangle over last month's fire at a detention centre has set the local police against the Home Office. Who, asks Penny Lewis, was responsible for safety?

The fire that ravaged the three-month-old Yarl's Wood detention centre on 15 February has ignited a legal dispute that may take many months to resolve. Not only is there a furore over whether the £38m bill must be paid by the local police authority, but questions have been asked about the safety of government buildings everywhere. Must they conform to the same safety standards as other premises? The case highlights anachronistic laws that are surely due for repeal.

When residents of the Bedfordshire asylum and deportation centre set the building alight, the inferno quickly gathered momentum, completely destroying a large part of the complex. David Pye, whose syndicate, DJ Pye, provided insurance in excess of £100m, comments that detention centres such as Yarl's Wood are "not constructed or operated in the same way as prisons". In those institutions, the emphasis is on segregation in small units. When riots break out, prisoners have access to restricted spaces only. By comparison, the Bedfordshire regime was unconfined.

Much attention has been focused on whether the Government was right not to install a sprinkler system. Jacquie Manners, spokeswoman for Bedford and Luton Fire and Rescue Services, says, "Our line is that there always should have been fire sprinklers." She believes that they would have made it "easier to contain the fire". In October 2000, when construction was under way, she says, "We recommended that it should have them." In a volte-face, David Blunkett announced to Parliament on 25 February that he would be reversing the earlier Home Office decision.

Certainly, it is difficult to argue that incorporating every conceivable safety feature is a bad thing. But is this reasonable? The Fire Services Inspectorate, a division of the Home Office, explains that a decision was taken after careful consideration. They say the "building had other safety features, the structure was highly compartmentalised and living accommodation had smoke alarms". Paraphernalia to fight fires was available in the form of fire extinguishers and hoses. Officers were trained in fire safety procedures and early detection was possible through CCTV. Apparently, fire services could be summoned two minutes after a conflagration was detected.

Pye confirms that he was told, before insurance was put in place, that sprinklers were not going to be used. He says there is no question that the contractors, Amey Construction, Group 4, who managed the site, or the Home Office, all joint insureds under the policy, withheld any material fact regarding sprinklers. Indeed, Pye adds that one drawback would have been potential water damage to property.

The necessity of installing sprinklers may become relevant to the Home Office for a number of reasons, not least internal accountability. In response to an emergency call, Bedfordshire police assembled 200 officers on site, many deployed from neighbouring forces. They did their best to provide safety for other emergency services – Group 4, as well as the Prison and Immigration Services. Despite their efforts, insurers face a £38m claim.

Shrewdly, Pye offset exposure in traditional manner, by obtaining reinsurance. It has also, via the loss adjusters Capita Maclaren, lodged a claim for compensation against Bedfordshire police, relying on an obscure 19th-century statute, the Riot (Damages) Act 1886. This ancient but potent legislation allows property-owners (or insurance companies who must pay out on property claims) to seek reimbursement from the local police authority when a riot causes damage as a result of injury, stealing or destruction to premises. Pye is adamant that it would not have provided riot cover but for the fact that it knew that it would have this right of recovery from the police. Interestingly, the Prison Mutinies Act excludes recovery for prison riots.

There are plenty of precedents for the invoked of the statute. In May 1999, for example, disturbances in the City of London during the day of action against global capitalism resulted in an estimated £2m of damage, which the Corporation of London was left to pay.

On that occasion, attention focused on whether the event constituted a riot. The old definition, of a group of persons gathered together "riotously and tumultuously", has been supplanted by Section 1 of the Public Order Act 1986. It defines a riot as a situation in which "12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his safety". The scale of the devastation and scenes recorded on film left little doubt about the answer. In Yarl's Wood it seems improbable that there were fewer than a dozen troublemakers. Employees caught up in the mêlée must have been badly shaken. One officer apparently jumped from a window, sustaining serious injury, to avoid the flames. This was therefore a clear example of a riot, albeit one in which police were drawn in without warning and were powerless to extinguish the flames.

Failure to keep the peace may have been the original justification for such an onerous law. But Bedford's police were not at fault. Yet under the 1886 Act it is difficult to see how they will escape liability. On any view this is inequitable. Pye believes that if the law is repealed insurers would be reluctant to provide riot cover. As an alternative, he suggests a government compensation fund or spreading the burden across police authorities instead of it falling on the jurisdiction where rioting occurs.

Bedfordshire Police say they will be considering the legal position carefully. One area that may preoccupy them is the extent to which damage was contributed to by the Home Office's refusal to incorporate sprinklers. It would be ironic if the police authority – itself a major Home Office division – ends up in a legal wrangle with part of its own organisation.

Another legal conundrum is whether it is time to excise vestiges of another outdated rule of law allowing Crown properties to fall outside the ambit of a number of building laws. Peter Coulson QC, a construction law expert, explains that there remain anomalies when it comes to government buildings. This is a legacy of the more general principle that the sovereign is immune from lawsuits. Piecemeal erosions into this law have been made over the years. NHS buildings and the Metropolitan police, for example, must comply fully with all legislation.

It is unsatisfactory that building regulations do not apply to premises occupied by the Crown. Coulson explains that the regulations "relate to the design and construction of buildings. The contents are generally regarded as good practice and if something goes wrong with a building you can refer to a failure to comply. Breach is a civil offence which can lead to a fine."

A leading textbook confirms that for statutes "the general position regarding Crown exemption is that a statute does not bind the Crown unless it so provides either expressly or by implication". Indeed, s.44 Building Act 1984, which is intended to explain how regulations apply to Crown property, has never been enacted.

Coulson says that in practice the non-application of the building regulations makes little difference. "The fact remains that if you are the owner of the building you owe obligations to the occupier in a variety of ways. There are common law obligations to act reasonably unless there is Crown immunity, full stop." He cannot conceive of a government building being built to standards less stringent than other commercial premises.

In Coulson's experience, regulations are particularly relevant in fire cases where they cater strictly for such features as fire breaks and barriers. Sprinklers, however, are not mandatory but fall into the category of "good practice tells us to do it". Nevertheless he considers that concentrating on lack of sprinklers in fire cases can be a red herring; "Quite often cases on spread of fire turn on whether requirements as to fire barriers and fire resistant materials were fully complied with." Crown premises are not exempt from certification under the Fire Precautions Act 1971 but they are inspected not by the fire authority but by the Crown Premises Inspection Group, another Home Office entity. Powers of entry under the 1971 Act do not extend to government buildings. These anachronistic inconsistencies should end.