Report stage in the Lords
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The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews)Labour- Quote
- My Lords, I beg to move that the Bill be now further considered on Report. Moved accordingly, and, on Question, Motion agreed to. Clause 69 [Transitional arrangements]:
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- Baroness AndrewsLabour
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- moved Amendment No. 89:
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Lord Graham of EdmontonLabour- Quote
- moved Amendment No. 91:
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Baroness HamweeLiberal Democrat- Quote
- My Lords, I supported the amendments relating to community land trusts at the previous stage and I continue to do so. Therefore, I am very glad that the noble Lord has tabled his amendments today. I hope he will understand that what I say next is an expression of the affection in which the whole House holds him. It is wonderfully disingenuous of him to say, “All I’m doing is asking the Government to take the amendment away and draft it for me”. That is very skilful and it shows the noble Lord’s years of experience. I hope that the Government will do exactly that.
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Lord Dixon-SmithConservative- Quote
- My Lords, the noble Lord, Lord Graham, is absolutely right. In Grand Committee, this proposal was supported by every speaker in the debate. It is perfectly true to say that there would not be a complete inhibition on this type of development. There is no formal definition of community land trusts, but the ones that go forward do so by private arrangement without the absolute certainty of legislative backing. Although, in principle, that is a method of development that I thoroughly approve of and support, in this instance if something along the lines of this amendment could be put on the statute book, it would help a movement which, in turn, would very often help smaller communities where, among other things, as we have argued from this side, there is currently a social housing deficit. This is a very worthwhile move and I hope that the Government have their sympathetic boots on this afternoon.
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Lord Bassam of BrightonLabour- Quote
- My Lords, the good news is that we do have sympathetic ears this afternoon. We have listened carefully to the views of my noble, and very venerable, friend Lord Graham on this, and we recognise the strength of the argument that has been put forward in favour of including in the legislation a definition of a community land trust. I should be honest and say at the outset that, although we have been committed to helping the development of community land trusts, we would have preferred our consultation to reach the point where the way that we addressed the issues raised by my noble friend could be better finessed. That is also the case in relation to the legal definition. That said, we want to respond to the powerfully expressed will of noble Lords in Grand Committee and meet their concerns. Over the next few days, I should like to consider the options for putting a definition of community land trusts in Part 2 of the Bill. I give an absolute promise this afternoon that we will bring back an amendment at Third Reading that satisfies my noble friend. We have said all the way through that we recognise the importance of consulting interested parties on community land trust definitions. Of course, there will still be an opportunity for consultation with stakeholders and for considering the detail when the regulator sets the relevant criteria under Clause 113, which concerns eligibility for registration. I assure the House that we are working closely with the community land trust movement to agree a suitable definition for our amendment. I hope that that demonstrates our support and commitment to everyone’s satisfaction. I thought I had made that pretty plain in Grand Committee; that was certainly what I thought I said. I am more than happy to make the concession this afternoon and hope that the House will accept our good offer to bring something back at Third Reading next week.
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- Lord Graham of EdmontonLabour
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- My Lords, I am deeply grateful to the Minister and his colleagues. Without the opportunity taken today, we would not be looking at what is possible this year; it could have been next year. I remind the Minister that the Housing Corporation saw fit to ask an eminent body to consult and bring forward its ideas, which it did. The Minister might believe that a wider consultation might have produced a better answer, I do not know, but it would be churlish of me not to say to the Minister that what he has done this afternoon is as much as he could possibly do. I look forward to looking at the amendment. I am sure that he and his colleagues are consulting a number of people on the precise wording. I am satisfied that the net product of their work will be acceptable to the House. I repeat that I am grateful to the Minister and his colleagues for having responded to the overwhelming view of all Benches of the House. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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The Earl of OnslowConservative- Quote
- moved Amendment No. 92:
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- Baroness AndrewsLabour
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- My Lords, I am very sorry to disappoint the noble Earl. Would that it had been as relatively simple to deal with this matter as it was to satisfy my noble friend. This is an important amendment that raises very complex issues. I am glad that we can have another go at it because the noble Earl has raised a couple of additional points that I am happy to address in my response. The amendment makes the ownership or management of social housing a public function for the purposes of Section 6 of the Human Rights Act, as proposed by the JCHR. As I said in Committee, we welcome the Joint Committee’s interest in this important matter, although we cannot agree with its recommendation. I hope I can persuasively explain why. I made it clear that there is no logical tradition that suggests that the provision of accommodation at below the market rate is by nature a public function. In Committee, I referred to the long history of social housing provided by the charitable and commercial sectors, which are largely privately funded. I think the noble Earl sort of agreed with me that social housing is not a public service that has recently been privatised, but is a regulated voluntary activity in which local authorities have become involved. I also made it clear that we were very concerned by the potential consequences of the amendment because of the risks and costs on the RSL sector, which includes many very small charitable organisations—more than 1,000 of them—that could face the possibility of more legal challenges in their day-to-day decisions. The Government do not subsidise the management of social housing by RSLs so the costs, which the JCHR reasonably did not assess, may need to be met by higher rents. I cannot impose extra burdens on the sector without full and proper consideration. The bigger risk is that reclassification of social housing as public housing would mean that the RSLs’ ability to borrow to provide new social homes and refurbish stock would be very constrained and £35 billion would be added to the public balance sheet. That is money that funds affordable homes for ordinary people. No matter how low that risk would be, the consequences for our ability as a country to provide the affordable homes so badly needed mean that we cannot take the chance that that might happen. The noble Earl mentioned the recent case of Weaver v London & Quadrant. As he knows, the opinion of the presiding judge in the case was that social housing provision was a public function for the purposes of the Human Rights Act. Obviously, we are looking at that decision and its implications carefully. I want to make just two comments on the case. First, the judgment appears to have been finely balanced. The judgment of Lord Justice Richards states: “I have not found this an altogether easy issue to resolve. The difficulty of drawing the dividing line between public and private functions in the context of s.6 of the Human Rights Act 1998 is illustrated by the differences of judicial view in previous cases”. That is absolutely right. Secondly, I understand that the housing association involved in the case may appeal. As I said in Committee, we are of the view that social housing provision is not and should not be considered a public function, whether for human rights or any other purposes, but we recognise that there may well be different opinions on the issue and we feel that we need a careful consideration of the arguments raised in the case. The noble Earl asked: will I sort it out? As part of the Government's response in the YL case, my honourable friend the Minister for Human Rights intends to undertake a consultation on the scope of the Human Rights Act. We are still fervently of the view that that is the best possible route for taking forward the broader question of what should and should not be considered subject to the Human Rights Act. That is where we rest our case at the moment. My right honourable friend Mr Straw actually said that if you are a private authority carrying out a public function, that function is covered by the HRA. I have just said that that is right. He also mentioned housing associations as bodies which, he speculates, might do things including some public function. He said nothing about what functions they do that are public; he certainly did not say that social housing management is a public function. It is a complex area; it is very easy to read things into a statement that were not intended. It was some years ago that my right honourable friend made that point; I cannot believe that he envisaged that the Act would turn private functions into public ones, as the noble Earl proposes in his amendment. Perhaps he meant that sometimes housing associations take on other public functions; for example, Group 4 in providing prison services, or contracting with the local authority. In any case, the Government's view in 2000, when Mr Straw made that statement, was that social housing provision was not a public function. Our view is the same now. I am sorry to disappoint the noble Earl, but we have had a serious engagement in two stages and I hope that he will consent to withdraw his amendment.
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- The Earl of OnslowConservative
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- My Lords, I never thought that I would be able to say this—it is a totally joyous thing to be able to do—because I never thought that I could confuse the noble Baroness with the Byzantine Archimandrite. She is making one of those wonderful Byzantine arguments about the number of angels who can dance on the head of a pin. As I understand it, Mr Straw said something that is now inconvenient and someone is trying, perfectly reasonably—if I had ever been entrusted with government business, which, thank goodness, I have not, I would probably be making exactly the same effort—to bat the ball away, but that did not stop it sounding slightly hollow. I accept that the Government cannot accept the amendment as it is, but I am trying to ensure that the problem is seriously and urgently addressed because it goes wider than the Bill; it goes to the YL and Weaver cases, as well as to what Mr Straw said. There is a lacuna somewhere, a muddle, and it needs to be sorted out. With that, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 88 [Fundamental objectives]:
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Baroness Finlay of LlandaffCrossbench- Quote
- moved Amendment No. 92A:
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Lord BestCrossbench- Quote
- My Lords, I support my noble friend Lady Finlay, who is much more expert than I ever could be in matters of medicine and science, and cancer and child leukaemia. In Committee, I mentioned that I was responsible for negotiating the undergrounding of a stretch of overhead cables with an electricity generator. From that experience, I discovered quite a few things. As a housing association, we were very unhappy at the thought that we would be developing underneath such wires. If the law meant that it would be impossible for us to develop underneath such wires, the value of the land that we would be acquiring would be correspondingly reduced, so we would have paid less for the site. As it was, the wires went underground and we were able to develop on more of the green land on top, an option that will always be open to people. At a time when housebuilders are quite desperate to make the profits that they have made in the past, but which have become extremely difficult to make today, it is important for building regulations or planning requirements to make clear that development cannot happen under these wires. They may take actions today that they would not have taken in the past. Equally, with the housing shortage as acute as it is, people—consumers, buyers or tenants—may take unwise risks. It would be much better for the regulations to be clear. With the risks that the science appears to suggest, it would be much better if there was a prohibition on building beneath these wires and options for doing other things, such as undergrounding cables or leaving a green wedge, which are reflected in the price. Whether that should be in this Bill, I leave to others to decide. It sounds more like a planning matter or, possibly, a building regulations issue. In this context, it would apply only to the social housing for which the regulator has responsibility, but I should like it to apply to all housebuilders. I very much support the sentiment behind the amendment.
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- Lord Dixon-SmithConservative
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- My Lords, I should like to express some sympathy with this amendment. On looking at the history of our development over the past 50 years, we have seen increasing scientific sophistication, increasing capacity to measure the adverse effects of developments that have taken place historically and increasing knowledge of the side effects of some of those things. We see it across many fields and there are many things that we do not do today that were considered to be perfectly normal 50 years ago, and sometimes not even as long ago as that. The noble Baroness is not asking that development should be prevented, but that, in social housing, particular tenants should not be moved into particular properties in particular locations, which is slightly different. I do not think that I have misunderstood her. We are not aiming to inhibit development in toto. We are saying that this housing, which may be perfectly acceptable for middle-aged adults and even the elderly, should not be used to house young people. That is a much more refined request than the idea that the proposal might be to inhibit development altogether, which is an important factor. If there is a serious risk of an effect on our young people, we should be concerned about that.
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- Baroness AndrewsLabour
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- My Lords, as always, I admire the way in which the noble Baroness, Lady Finlay, marshals the evidence and makes the case. This is a serious issue, and the contributions from the noble Lords, Lord Best and Lord Dixon-Smith, were very thoughtful. We discussed this in Committee. I know that the noble Baroness is keen to see action from the Government on this matter. She correctly anticipated what I have to say, but that does not mean that I have not listened very hard to noble Lords. The noble Lord, Lord Best, said that this is not the right Bill, but let me answer the points raised by explaining what we are thinking of doing in the future. This group of amendments would place various duties and requirements on the regulator which relate to reducing exposure to extremely low frequency electric and magnetic fields—I shall use the shorthand of ELF EMF. Amendments Nos. 92A and 94A relate to the fundamental objectives of the regulator. Amendment No. 92A specifies that pursuit of the regulator’s objective to ensure tenants an appropriate degree of protection includes protecting them from any risk arising from exposure to ELF EMF, whilst Amendment No. 94A would allow the Secretary of State to add to the regulator’s objectives. As I have said many times in the course of the Bill, the objectives are high level and guide the regulator’s behaviour; they are not designed to refer to such specific issues. The regulator has no authority over where homes are sited. Its role is to ensure good management of existing homes, wherever they are. Amendment No. 94A would give the Secretary of State the power to micromanage the regulator, giving it new tasks and changing its focus whenever she liked. That is inconsistent with the Cave review, which proposed that the regulator should be as independent as possible. We have given the regulator 10 high-level objectives which it must balance in performing its functions, and we do not want to add to those. As I have said, the regulator has no control over where homes are sited. Therefore I cannot accept Amendment No. 119B, which would grant the regulator power to set standards to include the distance from overhead transmission lines that housing must be built, the levels of ELF EMF permitted within housing and the locations of housing intended for occupation by families and children. The regulator will not issue standards on such matters. The noble Baroness and the noble Lords who have spoken are driving much deeper than the detail of the amendments. As I did in Committee, I can reassure the noble Baroness that the Government take this issue very seriously. There are already guidelines in place in this country to protect people from exposure to ELF EMF which are based on the established effects of exposure to these fields. In addition, we are currently considering the need for additional practical precautionary measures to reduce exposure to ELF EMF. In another place, my honourable friend Iain Wright will be taking forward discussions with Ministers in relevant government departments to inform the Government’s policy on this issue. We will not be in a position to set that out until later this year. I will ensure that the noble Baroness is fully informed of those discussions—she may like to share in them—with the relevant Ministers. I have listened closely to what she said about the way she thinks we should go forward and I will ensure that that is also put within reach of the Minister. Any measures which are appropriate to limit the exposure of the public to ELF EMF should apply at the national level. It is not appropriate to place individual responsibilities and duties on the regulator, as it would be subject to the same statutory control and regulatory frameworks or guidance concerning exposure to ELF EMF as any other body. That rounds off the argument. I hope that, with those assurances, the noble Baroness will understand that the Government are alive to and concerned about the issue she raises.
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- Baroness Finlay of LlandaffCrossbench
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- My Lords, I am grateful to the Minister for her reply and to the Government for their sympathetic understanding of the need for a precautionary approach and that the size of the precaution must be proportionate to the size of the risk. I accept the Minister’s arguments as to why these amendments are not appropriate. I am grateful for the support of the noble Lords, Lord Best and Lord Dixon-Smith, and I hope the Minister will also keep them informed of discussions on this matter. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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Earl CathcartConservative- Quote
- moved Amendment No. 93:
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The Deputy Chairman of Committees (Lord Colwyn)Conservative- Quote
- My Lords, if this amendment were to be agreed, I remind the House that I would not be able to call Amendment No. 94 owing to pre-emption.
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- Baroness HamweeLiberal Democrat
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- My Lords, I did indeed express the concerns that the noble Earl has summarised. I think I said that I read objective 10 as being a how rather than a what, and I found it difficult to understand it in the context of the list of objectives. It was of a different type from the other objectives. The noble Lord, Lord Graham of Edmonton, referred earlier today to the “brainy people”. The Government have said so many times that this would give the wrong indication. They seem to say at one point that the objectives are not a list and not in order of importance, but they also say that moving this objective around would affect the importance. I am still confused by that, but there comes a point where one has to accept that the brainy people who draft legislation, which is a bit different from ordinary-speak, must know what they are doing, and the amateurs cannot interfere with it. I hope the Minister has some notes that will explain all these questions. I have one question for the noble Earl about the last paragraph. He has taken me to task outside the Chamber for criticising his amendments, but I frame this as a straight question. Paragraph (c) refers to a duty; it does not matter where it comes, but if Section 22 of the Legislative and Regulatory Reform Act 2006 applies, why does that need saying? I was not quite sure why the noble Earl felt it necessary to spell this out because that Act will either apply or not and we do not need to repeat one piece of legislation in another. From the look on the noble Earl’s face, I am not making myself entirely clear. I suppose my question boils down to why it is necessary to spell this out. Is the 2006 Act, and the way it deals with matters, not sufficient?
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- Baroness AndrewsLabour
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- My Lords, I appreciate the way in which the noble Earl has tried ingeniously to come back with an amendment which he thinks we might accept. I hope it does not sound churlish of me to say that we still cannot accept it on a point of principle. The amendment still prioritises its proposed objective over the other nine, which is a problem for us. Since the Committee stage, and since the noble Earl tabled his amendments, a statement by a coalition of interested stakeholders has drawn attention to their anxieties, which are exactly the same as those I expressed in Committee. They do it more authentically because they are going to be affected by this and involved in making it work. The National Consumer Council, tenants’ organisations and the CIH argue that the amendment would undermine tenants’ rights, send the wrong signal to tenants and tie the hands of the regulator. It is significant that they welcomed everything else the Government have done but have issued a red flag of warning regarding this amendment. I am sure that the noble Earl has brought forward the amendment with total integrity, and the noble Baroness has returned to some of the arguments that took place in Committee. I do not have many new arguments, I am afraid, but I believe that those I have are sound. Objective 10 is not a drafting point; it is a deliberate decision to make the objective to minimise interference as important as all the others. Of course we want the regulator to proceed proportionately to minimise interference; we have said that throughout our proceedings and that must be in the culture and expectation of the way the regulator works. The objective is included because it expresses the balance that we want to achieve between driving improvements among poor providers while minimising the regulatory burden for good providers. We are conscious that overburdening a regulatory system drives out good, and that is the last thing we want to do when we are trying to stimulate the market, not suppress it. Making this an objective does not diminish the fact that minimum interference is a working principle, as it is with other regulators, but demonstrates that the regulator should positively aim for it. I believe, as those very important stakeholders have said, that it would be wrong to require the regulator to start by asking how he intends to minimise interference by providers. His task is to start by asking how he will address and resolve the weak consumer position of tenants. That is his job. The amendment, albeit with the best of intentions, seems to send the wrong signal about what the Bill, the system and the regulator are trying to achieve, so I am afraid that I cannot accept it.
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- Baroness HamweeLiberal Democrat
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- My Lords, I do not know whether the noble Earl intends to divide the House on this; I will go with the Government because there comes a point when one just has to accept what is being said. Can the noble Baroness explain why it is important to leave the objective in this place when subsection (13) states: “The order in which the objectives are listed in this section is not significant”?
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- Baroness AndrewsLabour
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- My Lords, that is indeed the case. We have not created a hierarchy of objectives, because they each have to be balanced against the rest. Objective 10 is part of achieving that balance of all the other things that we want the regulator to do.
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- Baroness HamweeLiberal Democrat
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- My Lords, the noble Earl’s amendment would not remove subsection (13).
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- Earl CathcartConservative
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- My Lords, we have had a short but interesting debate. The noble Baroness, Lady Hamwee, asked about our new paragraph (c). It was cribbed straight from subsection (12) of the clause. The intention of our amendment was to change the Bill as little as possible, which is why we have included the paragraph. At this and the previous stage, the Government have agreed to amendments from all sides of the House. That is welcome as I have no doubt that they will enhance the Bill. However, I am feeling a little left out. The Government in their wisdom have not agreed to any of my amendments on Report, neither a fair deal for rural areas nor the need for flood amendments. It therefore comes as little surprise that they will not accept this amendment—maybe it is just the way I tell ‘em. However, if at first you do not succeed, try, try again, so I live in hope. Slightly crestfallen, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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Lord FilkinLabour- Quote
- moved Amendment No. 94:
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- Earl CathcartConservative
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- My Lords, I was interested to hear the arguments of the noble Lord, Lord Filkin. I would agree with him. We certainly agree that encouraging the resolution of disputes at a local level is sensible and preferable. It is far more efficient for everyone involved to resolve any differences without allowing them to escalate. Indeed, his amendment might also bring a change in culture to registered landlords.
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- Lord BestCrossbench
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- My Lords, I am deeply sympathetic to tenants being empowered to play a full role in the management of their organisations. The Bill has been amended in several important respects to get the balance right between the opportunities for residents to participate actively in the management of their affairs—indeed, in some circumstances to raise the issue of a change of management—and, on the other hand, the regulator’s powers to act on the residents’ behalf and to take into account the cost to the taxpayer of any changes and the viability of the provider; that is, whether it would stay in business if changes were brought about. We have got the balance about right. I have done this before, but just so that everyone is entirely clear, I declare that I chair a large housing association and can be accused of bringing a provider interest into the debate. I put that declaration up front. A transfer of management—which sounds like a relatively modest change in the affairs of an organisation—is no trivial matter. Only about 350 housing associations are currently active and developing, although about 1,300 exist. That means that around 1,000 are really managers of rented property. That is what they do. Although they may own the property in name, if they are denied the opportunity to continue to manage it, they will go out of business. Some of these organisations have been around for decades, some for longer. I absolutely accept that they have no God-given right to be managers of social housing; that is certain. However, it is not a trivial matter to end their management of their stock. The Housing Ombudsman is there to handle complaints and individual redress for the 4 million tenants whom the noble Lord, Lord Filkin, mentioned, who will have issues and complaints on a day-to-day basis. The ombudsman provides an effective service. I have been on the sharp end of it myself, and have been entirely content with its judgments. The ombudsman can arbitrate between tenants and landlords—between the housing associations and their residents—and it can fine the registered social landlord, the housing association. It can publish on a name and shame basis the offending housing association. It can draw the attention of the funder—currently the Housing Corporation but in future the Homes and Communities Agency—to the fact that the housing association has not acted properly. Those powers ensure that tenants with individual complaints on a day-to-day basis—the 4 million tenants—have redress and access to a higher authority to settle those disputes, without it being suggested that it requires a change of management or a wholesale shift in the management of the stock of the organisation to another enterprise. That should not be taken lightly, because it brings with it—although it probably should not—the imposition of VAT on the management process. There is a 17.5 per cent surcharge if someone else, apart from the owners, does the management. Therefore, if residents complain that service charges are too high and they want to see some cuts in the costs, then, to get a 5 per cent efficiency gain, you need a 22.5 per cent cut in cost to take on board the VAT at 17.5 per cent as well. So they should not enter into this lightly. We are trying desperately to get the right balance here. I should be very disappointed if the noble Earl, Lord Cathcart, does not see any of his amendments accepted by the end of the day, with some concessions from the noble Baroness. On this one, getting the balance exactly right is difficult. At the moment, the Bill, after the changes that the noble Baroness is bringing forward in the amendments before us now, will get it just about right.
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- Baroness HamweeLiberal Democrat
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- My Lords, I had the good sense in Committee to let the noble Lord, Lord Best, speak before me on this issue, and I am very glad that I did so again, because he put it so well. There is a need for guidance, or a regime, to enable tenants, in the most serious situation, to prompt a change of management. As the noble Lord said, this is not by any means a trivial matter. That prompts me to ask about the application of “mismanagement”. If there is mismanagement, various mechanisms can be brought into play. Mismanagement is defined as including affairs conducted “improperly or inappropriately”. Is the Minister able to explain how that would apply to the concerns that are being voiced? I do not want to take out the reference to “control” in Clause 191(2)(g), but whether or not that provision is amended in this way, again I ask how that fits with the issues. Like the noble Lord, I do not think that it is necessarily a service to tenants to enable an easy flip-flop, which I think is the term that was used last time, and that is the concern. On Amendment No. 138A, I am unclear about how these matters are linked to the standards that are being spelt out in the Bill, because they seem to come in from a different direction, or at least to allow for a different direction. The noble Lord, Lord Best, referred to the VAT issue, which is not a trivial matter either. These are really difficult issues, and we are feeling our way around them and moving forward. It is hardly for me to say this, but the noble Earl ought to bear in mind that raising matters such as this one will have led the Government to reconsider things. None of us gets an amendment labelled with our initials into a Bill, but the process is very worth while.
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- Baroness AndrewsLabour
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- My Lords, I thank my noble friend Lord Filkin for enabling us to have this important debate. His amendments in Committee prompted rethinking on the Government’s part; likewise, my noble friend Lord Whitty, who is not in his place, raised issues to do with tenants that we have been able to address. They are important issues; I echo the noble Baroness, Lady Hamwee, about the context in which we have such debates and on the influences that make an impression on the Government and require us to change. Because it is a complicated group of amendments, I propose to take them slightly out of order to make a more logical argument; then we can have a more coherent debate on the main amendments. Amendments Nos. 120, 122 and 128 would add a body considered representative of the interests of local housing authorities to the list of bodies which must be consulted when issuing or changing standards under Clause 194, issuing directions under Clause 195 and issuing guidance under Clause 214. The amendments are a direct response to the argument made by the noble Baroness, Lady Hamwee, in Grand Committee that the regulator should be required to consult local authority representatives on standards. It was the first time the issue had been raised with us, which is another testament to her forensic abilities. I have considered her points, and on balance I certainly agree that it would be preferable to include bodies representing their interests in the list of mandatory consultees. For consistency’s sake, it should apply to directions and guidance as well. I turn to my own amendments, Amendments Nos. 95, 96, 97, 116, 124, 125, 126 and 127, and will discuss the amendment tabled by the noble Lord, Lord Filkin, in that context. They are important and address two key issues: how the regulator will involve tenants in its own functions, and how it will address complaints. We had a good discussion on this in Committee, and I am pleased to offer the amendments, which help to deliver a truly tenant-focused regulatory system. I very much hope that they have reassured my noble friend; I think that they have, from what he said. They have certainly been widely welcomed by those who represent the interests of tenants: the National Consumer Council, the National Federation of ALMOs, the Tenant Participation Advisory Service and the Chartered Institute of Housing. Now I come to what will give me great pleasure. The noble Earl, Lord Cathcart, tabled a good amendment in Grand Committee to give the regulator a “duty to involve”, to ensure that tenants are involved in the exercise of its functions. I responded that I was concerned about how that would work in practice and within the structure of the Bill, but I took the principle away. I am pleased to put forward Amendment No. 97, which fully meets the requirements outlined by the noble Earl and my noble friend Lord Whitty, who has also been of great help in this. I hope that it restores the noble Earl’s amour propre and good humour. I am bound to explain how the amendment works. The amendment puts a duty on the regulator in three parts. It requires it to promote awareness of its functions; to consult and discuss where appropriate with tenants on the exercise of its functions, such as through tenant focus groups or other meetings; and to involve them where appropriate in the exercise of functions, such as by including them on committees. It is a signal provision; it flags up the relationship that we hope the tenants and the regulator will have, which will be open, frank and constructive. The amendment additionally requires that the regulator publish a statement saying how it will comply with the duty, and that the statement be subject to consultation. Those measures increase transparency and accountability, so I hope that the noble Earl is pleased with that. The second key issue is of course how the regulator addresses complaints. We call that the tenant trigger, in shorthand. In Grand Committee, my noble friend Lord Whitty put forward an amendment proposing requirements on the regulator as to how it achieves that, which helped greatly in clarifying our own thinking. He won the support of many noble Lords in doing so. These amendments, which are the culmination of the hard work of my officials, take forward what we are doing. My starting point is the Cave review, which recommended that the regulator works with the National Tenant Voice and others to develop a range of ways in which interventions can be triggered, by which Professor Cave meant that the regulator should ensure a constant flow of information to allow it to intervene on the basis of clear evidence from a range of sources. That evidence will frequently come from tenant complaints. As I think the House knows, while the regulator will certainly use tenant complaints as evidence and will have strong powers to intervene, it is not set up to address most individual complaints. That is a core responsibility of landlords, and by issuing standards on complaints procedures the regulator will ensure that they do it well. Where landlords fail to address individual complaints, tenants have the right to put their case to the ombudsman, who delivers a very good service. Indeed, if he has captured the noble Lord, Lord Best, the ombudsman is obviously providing an extraordinary service. We want the ombudsman to work closely with the regulator. We do not want to interfere with those arrangements, but it is for the regulator to address systematic breaches of standards. Amendments Nos. 124 and 125 are the most important of my amendments. They amend Clause 213, which requires the regulator to issue guidance on how it will use its powers under Chapters 6 and 7. The best way to include the complaints procedure within the regulatory system is for the regulator to issue guidance specifically dealing with complaints about the performance of providers. This is a powerful requirement. The regulator must issue guidance, must consult—including with tenant representatives—and must have regard to its guidance. We thereby ensure that guidance on complaints handling is produced alongside guidance on how the regulator sets standards or uses its enforcement powers, because that link, as the noble Baroness implied, is extremely important and makes it more likely that complaints will influence the rest of the regulatory system. The guidance issued on this subject also must address specific issues. Three are mentioned: procedure followed in making a complaint, criteria used in deciding whether to investigate, and periods within which the regulator aims to inform complainants of the results. The regulator will, therefore, have to publish a document committing it to stating broadly which complaints it will handle and which are for other bodies to deal with—in particular the ombudsman. It will also need to commit to setting timescales for informing complainants. It is right that the regulator should make commitments in these areas, but it is also right that we leave it flexibility to address each complaint as deserved rather than imposing a target in statute. Our amendments make the regulator more accountable and its activities more transparent. It must publish guidance and consult on it, but we have added an extra requirement at Clause 94. Amendments Nos. 95 and 96 require that the annual report includes a general description of complaints made to the regulator that year about performance of providers, and how complaints were dealt with. The amendments would not only clarify the culture that we are trying to achieve and the processes whereby the regulator will have as a priority dialogue and involvement with tenants, but, crucially, would give tenants the clarity and confidence that their concerns will be addressed and resolved in the most appropriate and helpful way. Amendment No. 94 is tabled in the name of my noble friend. He was most generous and helpful, and I hope that I can answer his specific questions about how the Government intend to respond to the issues raised by the noble Earl’s Amendments Nos. 136 and 138A and how we want the regulator to work to achieve the best results. I have explained how my amendments will ensure that the regulator will be open and responsive to tenants, but that is only part of the story. My noble friend is quite right about the need for a rapport between the regulator and tenants that is driven by tenants themselves, and the need to inspire and create a new and confident ecology which means that tenants feel genuinely empowered to raise their own concerns and living standards. That is what we both want to see. It is not our intention that the only route open to tenants who deserve a better service from their landlord will be to formally complain to the regulator. Again, my noble friend and I agree on that. It would not be practical or desirable, because tenants should not have to seek redress from the regulator in order to receive a decent service. If we were to rely on central intervention, we would not be providing what true tenant empowerment is about. It is not the cultural shift that we want. My noble friend understands that point very well; it is what his amendment is driving at. I agree with him entirely that the new regulatory system that we are introducing should be about not just fundamental tenant protection but also behavioural and cultural change—a culture of expectations that will make it clear to tenants that they can be confident that they are entitled to ask for a good service. I believe that the Bill will deliver this. That is the first part of my answer to my noble friend, who asked how we see the system working if we do not agree to later amendments. I assure my noble friend that promoting dispute and complaint resolution at the local level is something that the regulator will be empowered to do, through setting standards for landlords. We have a link with standards at that point. There will be standards on procedures for addressing complaints by tenants against landlords, methods for consulting and informing tenants and methods for enabling tenants to influence or control the management of their accommodation and environment. These empowerment mechanisms relate to the relationships between tenants and landlords. They do not depend on regulatory intervention in order to happen on a day-to-day basis. The regulator’s role will be to set standards on these areas, in consultation with tenants and providers, and to take enforcement action when necessary to ensure that tenants are receiving a satisfactory service. Some of the regulator’s standards will use tenant satisfaction as a measure of compliance. Poor complaint handling by RSLs would show up very clearly in these data. I also anticipate that the guidance that the regulator will now be obliged to publish on how it will respond to tenant complaints will make it clear that the regulator will support a culture in which tenants can proactively resolve problems with landlords at the local level without having to seek redress. The regulator will promote local dispute resolution through standards, as I have explained, but it will also promote it in the way it regulates. The regulator will not be swooping in to deal with disputes unless that is necessary. That imperative is already in the Bill. The regulator will have a statutory objective to minimise interference, as we have discussed. It will also be required to comply with the statutory code of practice for regulators. Before exercising its enforcement powers, the regulator must consider the desirability of providers being free to choose how to conduct their business. The Bill provides that RSLs can give the regulator voluntary undertakings. The regulator must have regard to any such undertakings. I assure my noble friend that the regulator will have no interest in crowding out dispute resolution at the local level—quite the reverse. It is also right that, through the tenant trigger, we should provide a mechanism for tenants to escalate complaints where there are systemic problems that landlords are not addressing. The regulator will focus on setting good standards for complaint resolution, backed up by a good procedure to handle complaints where there are systemic problems. My noble friend has been a champion of this issue throughout this Bill, and I am sure that the whole House recognises the great contribution that he has made. I hope that he feels that the amendments that I have tabled today have been useful. I turn to Amendments Nos. 118 and 119, in the names of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart. The noble Earl was right: we slightly misunderstood the intention behind the amendment when we discussed it in Grand Committee. I now understand the noble Earl’s point that Clause 191(2)(e) should not refer exclusively to, “complaints by tenants against landlords”; that might imply that a landlord could never have a legitimate complaint against a tenant—it should be a two-way street. I need to go back to the Cave review briefly; Professor Cave was the original author of Part 2. He found that the closed market for social housing resulted in tenants being disempowered and he suggested that this was one of the principal reasons why regulation of social housing was necessary. He said that, “a system in which tenants cannot switch and are put at risk of poor treatment by providers, which face limited pressures to offer good service and choice, or even to operate efficiently … makes a strong case for regulation to protect tenants”. Cave did not find that landlords were similarly disempowered. The fundamental challenge of Part 2 is to address that lack of tenant empowerment and choice. That is why Clause 191(2)(e) is drafted as it is. The Bill does not assume that the tenant is always right; nor does it assume that RSLs will never have legitimate complaints against tenants. However, there are already well established routes for dealing with such complaints under tenancy contracts, up to and including evicting the tenant in some circumstances. As the noble Earl said, RSLs also have anti-social behaviour powers, which are highly effective in dealing with troublesome tenants, and standards can be issued on this as well. Tenants simply do not have powers of this nature. I hope that that explanation will satisfy him.
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- My Lords, I thank my noble friend for her thoughtfulness and care in responding to these complex issues. I shall value reading what she has said. I will reflect on it and see whether I need to come back at Third Reading or whether I can leave a little peace in her life before she prepares for the Planning Bill. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 94A not moved.] Clause 94 [Annual report]:
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- My Lords, I am completely sympathetic to the intention and the vocabulary of the noble Lord as he described the amendments and I welcome them back because I strongly agree with the need to ensure that registered providers are indeed properly accountable to their tenants and that tenants have the information that they need to exercise their rights. Where we disagree is on how that imperative should be reflected in the Bill. Generally, we have preferred to use regulatory tools rather than impose direct statutory requirements on RSLs because, as we all know, that is more flexible, lighter touch and more consistent with the independence of the sector. I do not want to return to the debate on the risk of reclassification of RSLs as public rather than private sector bodies, but we always have that in mind when considering these issues. I very much doubt whether those concerns would be eased by imposing a direct statutory duty on every RSL in England at this stage of the Bill’s progress. I am also reluctant to impose such a requirement on RSLs without consultation with the sector. For those reasons, I am not convinced that it would be wise to impose a statutory duty, as the noble Lord proposes. However, we have given careful thought to the aims behind the amendments and how we can translate them into reality. We think that the best way to do so would be through regulatory guidance. That would have several advantages. It would allow the RSL sector to be consulted first, as required by Clause 214. It would give the regulator some flexibility to determine what should be included in the accountability statements. That would help to ensure consistency with whatever regulatory standards had been set. Consistency is very important, given the sector that we are dealing with. It would also integrate the requirement into the broader regulatory system. It would be for the regulator to decide whether this was appropriate, but I believe that the National Housing Federation is keen on these changes. If it wanted to submit this requirement as a regulatory proposal, I am sure that the regulator would consider it seriously.
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- My Lords, I am happy to acknowledge that the difference between us, if it is a difference, is between the means and the ends. However, the end is no problem; the question is how you get there. The Minister’s explanation and offer of regulatory guidance in essence accepted the principles behind the amendments. It is therefore perfectly possible for me to beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 124 [Complaints]:
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- moved Amendment No. 104:
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- Baroness HamweeLiberal Democrat
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- My Lords, I am grateful to the Government for acting on the concerns that I raised at the previous stage about disposals without consent. I would have preferred to see something which more closely mirrored the position that would have applied with other companies on an insolvency, but the proposed amendment is a good one. A question has just occurred to me and I am sorry I did not think of this before and give notice. If the purported disposal is one where there has been an agreement to sell more properties than come within the exception and the purchaser has paid a deposit, what happens to that deposit? Of course, anyone with his wits about him would provide for the possibility of a moratorium when drafting a sale agreement. There must be an answer. If the purported disposal is void, would the deposit go back to the failed purchaser? It would be helpful to have clarity on that.
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- My Lords, the noble Baroness is probably right but I shall take advice and write to her on the point. On Question, amendment agreed to. Clause 149 [Exempted disposals]:
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- moved Amendment No. 121:
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- My Lords, my noble friend has made an admirable case for trying to keep all the bodies that he mentioned in line. I am quite sure that the Minister will argue that the Bill already does that but the report of the Delegated Powers and Regulatory Reform Committee shows that there is clear division of opinion as to whether that is the case. I support my noble friend in his amendments; as he says, they would enable the apparent conflict to be resolved and would unquestionably assist in keeping co-ordinated the actions of the Homes and Communities Agency and the regulator. That has to be a worthwhile ambition. Therefore, it is very easy for me to offer my support.
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- My Lords, I agree absolutely with the noble Viscount about guidance being better than directions. I hope that he will comment on the fact that Amendment No. 123 gives the Secretary of State a much wider direction-making power than Clause 195, as I do not think he has said anything about it. His argument may lead one inevitably to that conclusion—probably it does—but it gives me some trouble.
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- My Lords, I shall start where the noble Baroness finished, because her point goes to the heart of the argument. As I read the amendments, they would make the regulator subject to the Secretary of State’s direction and guidance. I understand the point about guidance, but that would apply for all its functions. When we discussed this matter earlier, I assumed that the noble Viscount, Lord Eccles, was much more keenly in favour of the regulator’s independence. It is a feature of the Bill, which I had thought was broadly accepted, that the new social housing regulator should be largely independent from government, subject to the Secretary of State’s direction only in the setting of a small group of key standards. This is in contrast to the status quo, where the Housing Corporation is subject to direction by the Secretary of State in respect of all its functions; so there is a change. A key recommendation of Martin Cave’s review was that the new regulator should be independent of government, but that does not mean that there is no role for government. Professor Cave was very clear that the Government had a direct interest in the setting of rents and standards of service for tenants, which are the areas in which we have given the Secretary of State a power to direct the regulator. This limited power of direction, backed up by transparent processes, should give providers and tenants the certainty that they have previously lacked. I am clear that this is much more faithful to Professor Cave’s recommendations. It is perhaps worth quoting what he said: “It is right that regulation should be used to achieve policy objectives. But current and future social housing providers need to have more regulatory certainty about the extent and cost of policy burdens. The process for introducing and adapting policy requirements needs to be more structured, transparent and equitable”. The Bill achieves that objective. The noble Viscount’s amendments would provide a new role for the Secretary of State that rather waters down the Cave recommendations. The Secretary of State’s role under this Bill remains extremely limited. We have introduced amendments that would give the Secretary of State additional roles in two very specific areas, to which I referred earlier, but they do not undermine the basic principle of independence. First, we have given the Secretary of State a role in the process for setting the regulator’s fees. As the House will know, regulation in this sector has not previously been funded by fees, and providers are perhaps understandably nervous about how the new system might work. The role for the Secretary of State should help to reassure providers. Secondly, we have given the Secretary of State a role in the regulator’s determinations on the disposals proceeds funds. In this area, the regulator takes on the role of the Housing Corporation in determining how proceeds from right-to-acquire sales are invested. That is how we ensure that proceeds of right-to-acquire sales are invested in new social housing. Although it is a regulatory function, it has important investment implications. The Secretary of State’s role here simply ensures that the status quo is maintained; namely, that government are able to ensure that right-to-acquire sales do not lead to the loss of social housing stock. I am sure that most noble Lords will agree that that is a desirable outcome. The Bill was not intended to make any substantial changes to the right-to-acquire system. Giving the Secretary of State a role here ensures that the status quo is maintained. These small roles for the Secretary of State do not diminish the overall independence of the regulator. The Secretary of State will have only a limited role in setting standards and no role at all in other areas, including the registration of new providers, enforcement of standards or the disposal consents regime, where one could fairly argue that a guidance role is more appropriate. These are amendments that we have to resist.
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- Viscount EcclesConservative
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- My Lords, I thank the Minister for his reply. I shall deal first with the question of Professor Cave. We all have the greatest respect for the work that the professor has done on this subject, but none of us would expect him to be an expert on parliamentary procedure or the drafting of Bills and proper implementation of Acts of Parliament. That is not what we would expect—and Parliament would not wish to delegate the responsibility for such decision-making to anybody, however expert they were, if they were not themselves Members. On the point made by the noble Baroness, Lady Hamwee, on the width of the directions clause, I remind the House that I suggested that if the Government thought it more appropriate they could use Clause 49 and thus put the regulator on exactly the same basis as the HCA. That clause is quite short; subsections (1) to (4) are the ones that count. It would do admirably. I chose Section 76 of the 1985 Act only because the Government kept citing it as the precedent on which they relied. Directions clauses are meant to be wide. There are many of them, in many Acts of Parliament, and when they are used as backstop or reserve powers, as is their usual use, they are wide, because it is not possible to foresee the purposes for which they may need to be used. In Grand Committee, we had three uses of directions pointed out to us by the Minister, which were all to do with the Dome. That is an absolutely classic example of the need to use directions under an Act of Parliament because the circumstances of the Dome, as it was shut down after the millennium, could not have been foreseen. That is why they were used in that way. As a matter of precedent and parliamentary procedure, I believe that directions clauses should be wide. There is much benefit in Amendments Nos. 121 and 123, and I wish to test the opinion of the House.
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- My Lords, I am well content with the amendments, and I am very grateful to the Minister for introducing them. The clinching argument for limiting the circumstances in which the regulator could transfer the management of property to another landlord was made by the noble Earl, Lord Cathcart, in Committee. He put it so well that it bears repetition. He said that it was, “rather like a court trying someone for murder, finding him innocent of murder but guilty of shoplifting, and then deciding, ‘Well, we’ll hang him anyway’”.—[Official Report, 18/6/08; col. GC 428.] That was such a good quote that I felt it was worth repeating. I am deeply grateful to the Minister for the amendments, which will definitely be well appreciated by the National Housing Federation and others. On Question, amendment agreed to. Clause 228 [Warning]:
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- Lord Graham of EdmontonLabour
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- My Lords, I was intrigued by the weight that the noble Lord placed on the words of Sir Bryan Carsberg about letting the market decide, because it was the market that decided in the past, when the problems arose of delay and cost. From day one there has been a concerted effort to denigrate the worth of HIPs. It has been difficult. As the House will appreciate, the market itself has been topsy-turvy for at least the past two or three years. On this side of the House, we are more prepared to intervene than those on the other side. In other words, we intervened in a genuine belief that the first-time buyer, faced with delays, chains and all the rest of it, had a bad deal. Undoubtedly the main weight in the original legislation was the conditions survey, which was dropped about a year ago because there was undoubted hostility towards the idea. Where did that come from? The vested interests in business. People had been professionally involved and elevated the profession of surveyors to the degree that they virtually had a monopoly, and they did not like interference. Whether the Government got it right or wrong, that provision was dropped to make some progress. I am not in touch with the detail, but the Government should not feel chastised at all because they have not allowed the market to decide. It was the absence of a market that was sympathetic to the needs of the consumer that led the Government to intervene. I will of course listen to what the Minister has to say, as I am sure the House will too.
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Baroness FordCrossbench- Quote
- My Lords, I am disappointed that we return to the issue of home information packs, because the House has debated them long and hard in the past 12 months and, finally, we agreed on the way forward. I take issue with the noble Lord, Lord Dixon-Smith—oddly, because I do not do that often—but it is unreasonable to blame home information packs and energy certificates for the current lack of mortgages in the market. We all know perfectly well that the residential market is frozen because of the lack of availability of mortgage finance. The noble Lord said that home information packs were marginal. Abolishing them would be a gesture and a wholly retrograde step. This afternoon I spent a long time talking to some housebuilders. Not only did they want us to get rid of home information packs, but to significantly dilute all quality standards and elements of the sustainable buildings code that will make a serious difference to climate change. It is wrong to use the current, one hopes temporary, state of the capital and housing markets to renege on very hard-fought and hard-won advances in terms of the impact that the housing construction industry has on climate change. I urge noble Lords to resist the amendment.
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- Baroness AndrewsLabour
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- My Lords, my noble friends have removed two of the most important planks of my argument much more eloquently and powerfully than I could have done. I am particularly grateful to my noble friend Lady Ford for her latest piece of intelligence; we must hold firmly to the principles of what we know is right and we must build differently for the future, not be destabilised by what I am sure is a temporary difficulty in the housing market—although it seems to be severe for many people. We had a similar debate 10 days ago, as the noble Lord, Lord Dixon-Smith, pointed out. Not a great deal has changed in my argument. It was certainly the market that failed to deliver; in fact, it delivered a chaotic and protracted system of buying and selling—the longest time in Europe that it takes to buy or sell a house. This happened against a background whereby customers simply did not get the information they needed early enough to inform their decisions about a property. The introduction of HIPs has been a first step in addressing these problems. We always said that it would be first step. We also said that we hoped that it would galvanise the market into changing itself. Indeed, it has, because the process of introducing HIPs has been much smoother than we had expected. They take on average seven days to prepare; drainage and water searches are taking three days; competition from HIPs is reducing the average cost of property searches; 85 local authorities have already reduced their charges by £30, and some by as much as £120; and energy performance certificates are being prepared within an average of two to four days. This has not been an onerous or bureaucratic exercise and important information is there for the first time. I understand and listened with respect to what the noble Lord said about the state of the market. I am sure that he will have read the independent and thorough report that I sent him by Europe Economics on the relationships that HIPs have with the market when compared with the many other influences on what makes people buy and sell homes. The report found no evidence of an impact of HIPs on transactions and prices, and noted that any effect on listings would be short-lived and the impact on the market marginal compared to wider factors. I hope that the noble Lord accepts that, because we want to move on with industry and consumer groups to enhance and improve HIPs and ensure that consumers can get the information that they want at the right time in a format that they find useful. My other argument with the noble Lord is that at this time of turbulence in the housing market, more change is the last thing that we want, particularly regarding home improvement packs. The industry and consumers want certainty and confidence. That is a very strong argument for rejecting the amendment. More than 750,000 HIPs have now been produced, and energy performance certificates have put into the hands of consumers information which previously they never had. This is important information at a time of rising fuel costs. I know the noble Lord understands that. With respect, I cannot accept the amendment and I hope that the noble Lord will withdraw it.
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- Lord Dixon-SmithConservative
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- My Lords, the essential arguments have not changed; they go over similar ground to that covered 10 days ago. I want to raise three points. First, the amendment would keep the energy performance certificate; that is not an issue. Part of my reluctance about HIPs is because the energy performance certificate is needed on all housing now. Relying on the market to distribute energy performance certificates is a basically flawed strategy. The second problem is that, for better or worse, the home information pack really is not fit for purpose. If it were, we would not have passed, only a few weeks ago, yet another extension of the exemption on first-day advertising and sale, so that HIPs only have to be applied and do not have to be available from day one. If there was confidence that they were doing a genuinely good job, we would not have passed that exemption when we did. I should be surprised if, when the time comes, we do not see yet another request for another exemption period. So long as that is in place, the Government’s confidence in their own product, if one can put it that way, is deeply flawed. Thirdly, the sustainable building code is nothing to do with HIPs. That code will apply in particular to new buildings but it will inevitably—because we want to see it—work its way through into the existing housing market. It will not be an issue in the marketing of property; people buy their property as it is. The evidence is that people buy their property without particular regard to the home information pack and most people usually make a commitment to buy before they have seen it. So long as that is so, we cannot say that this is a benefit to the market. I agree that this could have only a marginal effect on present circumstances. I also agree that the existence of the pack has nothing to do with current marketing or the quality of housing except in so far as the really useful part of it—the energy performance certificate—is part of the pack; we need the energy performance certificates, and we intend that they should continue. There really is no case for sustaining this unsustainable bit of marketing nonsense. I wish to test the opinion of the House.
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 159:
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- Lord Bassam of BrightonLabour
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- moved Amendments Nos. 160 and 161:
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- Lord Bassam of BrightonLabour
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- moved Amendment No. 162:
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- Lord Bassam of BrightonLabour
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- moved Amendments Nos. 163 to 175:
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- Baroness HamweeLiberal Democrat
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- moved Amendment No. 176:
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- Baroness AndrewsLabour
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- My Lords, I appreciate why the noble Baroness has raised this issue, and I shall do my best to address the concerns raised by the ECHR case McCann v UK in which judgment was handed down in May. I do not want to go into great detail about the background to the McCann case, except to say that it involved a complex and unusual family situation. That said, the judgment seemed to raise a point of more general application; namely, whether a public authority tenant can raise an Article 8 defence—the right to privacy—to a possession claim brought against him by his local authority landlord. In order for the possession procedure to be Article 8 compliant, any interference with Article 8 rights—and there will usually be interference with those rights in proceedings for possession of someone’s home—must be three things: lawful; in pursuit of a legitimate aim; and a proportionate means of achieving that aim. I should point out that while the amendment is very generally worded so it might be assumed that it would apply to all homes, only public authorities would have a duty to their tenants under the Human Rights Act. In McCann, the Strasbourg Court held that the interference with Mr McCann’s rights was lawful and pursued the legitimate aim of protecting the rights and freedoms of others. The problem it identified was that the interference was not proportionate to the aim pursued, as the noble Baroness said. The court held that, contrary to the view that had previously been taken by UK courts, a public authority tenant who faces possession proceedings should be able to raise an Article 8 defence to those proceedings and that, where the circumstances were exceptional, he or she should be able to require the court to examine the issue. It is worth observing that the European Court in McCann observed that, “it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue”. Section 2(1) of the Human Rights Act 1998 provides that any domestic court determining a question connected with a convention right must take into account any relevant judgment of the Strasbourg Court. The McCann judgment itself therefore seems to make this amendment extraneous because domestic courts are obliged to take what Strasbourg said into account. That means that they must already consider whether possession action is the proportionate response. The amendment proposes that we should go further than that by providing that the court should have to allow a full hearing of any Article 8 defence raised, no matter whether the circumstances of the defendant were exceptional. That is disproportionate because it is likely to complicate and delay the vast majority of cases whereas, as the Strasbourg hearing affirmed, only an exceptional few are likely to hold reasonable grounds. On those grounds, we do not consider that that position could be easily justified. The noble Baroness will know that this issue and the impact of McCann on domestic possession proceedings are currently before the House of Lords in the case of Doherty v Liverpool City Council and that while that is happening I cannot comment on it. Therefore, this is work in progress to an extent.
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- Baroness HamweeLiberal Democrat
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- My Lords, I am not remotely qualified to take the argument any further, but I shall make one point that I did not make in moving the amendment because it would have been unfair to expect the Minister to respond to it. It is that although the amendment refers to a dwelling house, there could be an equivalent situation in a caravan. I should have thought that similar points arise. In view of the Minister’s explanation of the current position, I am not going to press this matter, but those who are concerned with supporting Travellers will read the comments as if they applied more widely. The choice of the words “dwelling house” was a little accidental, and I should have thought about the need to expand them or define them in some way. I am grateful for the Minister’s reply. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Schedule 11 [Possession orders relating to certain tenancies]:
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- Baroness HamweeLiberal Democrat
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- moved Amendment No. 176A:
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- Baroness AndrewsLabour
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- My Lords, I am happy to bear the pressure, because we are seeking to do the same thing. The noble Baroness and I both recognise that the existence of tolerated trespassers causes serious problems to tenants and landlords. We want to resolve that to ensure that no tolerated trespassers are created in future. My amendments would amend Part 2 of Schedule 11 to deal with the situation in respect of tolerated trespassers whose landlord changes. The most usual situation where that happens, as the noble Baroness implied, is transfer from a local authority to a registered social landlord following a large-scale voluntary transfer. Less usual examples are where one RSL takes over the stock of another, or where one local authority is substituted for another as a result of boundary changes. It is certainly true that, while Part 2 of Schedule 11 provides for all other existing tolerated trespassers to receive new tenancies, it does not at present cover the situation of those who have transferred to a new landlord. That is why we are introducing an amendment today which will put that right. My problem with the noble Baroness's amendment is not that it is extra speedy, it is just that it is not quite as simple as she suggests. Our aim is to provide certainty as well as appropriate speed. As far as possible, the aim is to provide that both landlord and tenant are in the same position as they would have been had the tenant not become a tolerated trespasser and that neither is disadvantaged by the changes. Paragraph 17 of Part 2 of Schedule 11 provides, with one exception, that the new tenancy will be the same as the original tenancy. That means that a tolerated trespasser of an RSL who had previously held a demoted tenancy will be granted a demoted tenancy on commencement. However, the noble Baroness's amendments would provide all transferring tolerated trespassers with a full assured tenancy. We are aware that at the moment different stock transfer RSLs take different approaches to how they deal with occupants who transfer to them as tolerated trespassers. That is part of the problem. Some grant full assured tenancies; others grant only assured shorthold tenancies—usually with a promise of a full assured tenancy after a certain time if the tenant behaves well. There are also some transferee landlords who fail to provide a new tenancy, or to do anything else to regularise the position for transferring tolerated trespassers. That could happen for different reasons, including an intention by the landlord to request the court to proceed with an eviction. However, as with other existing tolerated trespassers, the court may not grant that request, with the result that the occupant would be left in their current anomalous position. We do not have information on how many tolerated trespassers are in this position. Specifying in the legislation that all transferring tolerated trespassers should receive a full assured tenancy would not only be out of line with the general thrust of Part 2 of Schedule 11; it would also remove the choices that transferee landlords currently have. This is not possible or right to do without first consulting landlords. We consulted generally on the provisions in Schedule 11 in August 2007, and the landlords and other housing professionals who responded to that consultation strongly supported remedying the situation for future and existing tolerated trespassers. However, we did not consult specifically on the issue of transferring tolerated trespassers. It would be wrong to make those changes without first seeking the views of RSLs and local authority landlords, because they will be affected by those changes. We would then extend the consultation more widely to include private landlord representative organisations, as well as tenant and advisory organisations. However, it is true that any resulting addition to the provisions is unlikely to affect private landlords to any great extent. Although I have to say that there are certain shortcomings with the amendments tabled by the noble Baroness—not with mine—we accept that it is unfair for a change of landlord outside a tolerated trespasser’s control to determine whether they have their tenancy status restored or not. We also recognise that if we do not remedy this situation, it could lead to subsequent litigation. Amendment No. 177, which I am introducing today, gives the appropriate national authority—the Secretary of State in England and Welsh Ministers in Wales—the power to provide by order that a new tenancy will arise wherever there has been a change of landlord since the former tenant became a tolerated trespasser. It also provides for the order to set out the detail of how that would work. We intend that that should be kept as close as possible to the existing provisions for new tenancies in Schedule 11. Amendment No. 177 will meet the concerns raised with the department by a number of stakeholders, including Shelter. I am very pleased that it will. The provisions will relate only to those tolerated trespassers who have not signed a new tenancy agreement with their new landlord. As I said, however, as this is an issue which we did not include in our earlier consultation, and as we recognise that RSLs in particular may have strong views about the form of tenancy which should be granted in this situation, we have provided a delegated power so that provision can be made by secondary legislation, rather than by inclusion in the Bill. As I said, that will allow for a full consultation process to be undertaken before final decisions are made on the detail. We intend that if, following consultation, the power is exercised, the secondary legislation will come into force at the same time as commencement of the main provisions on tolerated trespassers in the Bill. In that way, we will ensure that transferring tolerated trespassers are not disadvantaged by the timing of these changes. I hope that the noble Baroness will appreciate that. Given that that will end the current situation in which RSLs have discretion as to what sort of tenancy to offer transferring tolerated trespassers, we think it right that the regulation-making powers should be subject to the affirmative resolution procedure. Amendments Nos. 195 and 198 therefore make the necessary consequential amendments to Clause 318, which deals with orders and regulations. Finally, Amendments Nos. 178 and 179 are minor technical amendments. They are necessary for completeness to add a missing definition of “successor” in paragraph 25 of Part 2 in relation to demoted tenancies, where the general assured tenancy succession rules would apply. I hope that that rather long-winded explanation satisfies the noble Baroness on her amendments. I think that we have closed the loophole effectively, which is a good thing.
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- Baroness HamweeLiberal Democrat
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- My Lords, transferring tolerated trespassers is almost as difficult as, “She sells seashells”. The noble Baroness said that my amendments are not that easy. If I have learnt anything about housing law it is that it is not that easy. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness AndrewsLabour
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- moved Amendment No. 177:
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- Baroness AndrewsLabour
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- moved Amendments Nos. 178 and 179:
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- Baroness AndrewsLabour
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- moved Amendments Nos. 180 to 186:
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- Baroness AndrewsLabour
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- moved Amendment No. 187:
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- The Earl of OnslowConservative
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- moved Amendment No. 188:
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- Baroness AndrewsLabour
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- My Lords, I fear that I am not going to be as brief, succinct or clear as the noble Earl. He is absolutely right that this is hugely complex, and I will have to explain it for the record if he will bear with me. We had a long exchange in Committee about this, and I am afraid that my explanation this evening will be much the same. I will also have to reply to the letter from the Joint Committee on Human Rights. We received it only yesterday and I have not had time to reply, so I will address the contents of that letter as well.
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- The Earl of OnslowConservative
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- My Lords, is the Minister satisfied that I accurately summed up the situation as we saw it? I hope that I did. As I say, I had difficulty getting my head around it.
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- Baroness AndrewsLabour
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- My Lords, the noble Earl certainly summed up the crucial points succinctly. I will have to say a bit more about why there is a continuing difference in the treatment of certain people. I would not call it discrimination, but there is a continuing difference. If the House will bear with me, I will have to read my speaking notes on this. This is a complex area of law. As the noble Earl said, in some ways the issue at stake is what help a mixed household, in which household members have different immigration status, should get if its members become homeless. In Committee, I gave a long explanation of definitions of what constituted eligibility, for example. I will not do that here, because I will have to provide more detail in response to the letter from the JCHR. In Committee, I also tabled amendments on behalf of the Government to remedy the incompatibility. These now comprise Clause 312 and Schedule 15. At the time, the noble Baroness, Lady Hamwee, asked whether there might be an opportunity for the Joint Committee on Human Rights to consider the Government’s proposed remedy before the proceedings on the Bill come to an end. Since then, the Joint Committee has helpfully written to me and asked for clarification of some aspects of the remedy. I will address that in a moment. The starting point is this. As the noble Earl said, at present if a British citizen, with a foreign pregnant partner or a dependent child who has leave to stay on condition of no recourse to public funds, becomes homeless and is not vulnerable in his own right, that family will not be housed under homelessness legislation. The Government’s remedy in Schedule 15 is to ensure that, in future, households in these circumstances will be provided with suitable housing—that is the big step forward—while continuing to ensure that people from abroad with no claim to UK public resources cannot confer entitlement to long-term social housing. Long-term housing is what we are talking about here. It will not have gone unnoticed that the noble Earl’s amendment seeks to effect a remedy with a short clause of just two lines, whereas the Government’s own amendments extend to a rather long and very detailed schedule. The noble Earl’s amendment would remove only part of the provision that has been declared incompatible; that is, Section 185(4)(b). The other part, Section 185(4)(a), stays in place. One prevents local authorities taking account of ineligible family members, which is the sort of family he describes, for the purpose of establishing priority need. The other prevents account being taken of ineligible family members for the purpose of establishing homelessness. Both have been declared incompatible, but only to a limited extent. In fact, there may be no need to sweep away completely either of those provisions. The noble Earl’s amendment sweeps one away completely but not the other one. He obviously wants to take our remedy out of the Bill completely.
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- The Earl of OnslowConservative
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- My Lords, I thank the Minister for that detailed answer. She could not possibly expect me or anyone else to absorb it all and retain it in their brains at this time of day. It is very complicated and obviously I shall have to read it again. I still have a worry, not about the head of the family but about subsidiary family members. Let us take the situation where a man is completely legal here but the status of his pregnant wife or girlfriend is under query. If she was completely okay, one set of rules would apply to her; but if her case was pending, a lower set of rules would apply to her. If she was then moved to, let us say, a 12-month tenancy agreement and her immigration status was settled as fully okay during that time, the family would then be landed with a second-class remedy which it would not have had if the settlement had come in earlier. I hope the Minister is following me because I think I am getting it right I am not going to press the amendment. It is obvious that the Minister’s officials have gone to an enormous amount of trouble, for which I am grateful. We look forward to her letter—perhaps not with the glee with which one looks forward to a Valentine’s card, but we will be pleased to hear the answer and I thank her for that. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Schedule 15 [Ineligible persons from abroad: statutory disregards]:
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- Baroness AndrewsLabour
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- moved Amendments Nos. 189 and 190:
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- Baroness AndrewsLabour
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- moved Amendment No. 192:
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- Baroness AndrewsLabour
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- moved Amendments Nos. 194 and 195:
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- Baroness AndrewsLabour
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- moved Amendments Nos. 197 to 201:
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- Baroness AndrewsLabour
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- moved Amendment No. 202:
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- Baroness AndrewsLabour
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- moved Amendment No. 203:
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- Baroness AndrewsLabour
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- moved Amendments Nos. 204 to 207:
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Baroness ThorntonLabour- Quote
- My Lords, I should explain on behalf of my noble friend the Chief Whip that an unusual situation has arisen. The noble Baroness, Lady Campbell, who is in her place, has her name down to speak in the debate but is unable to do so because of a breathing problem.
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- Baroness Finlay of LlandaffCrossbench
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- My Lords, she is going to speak. She is feeling better.
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- Baroness ThorntonLabour
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- My Lords, I am sorry. That is fine. I take this opportunity to inform noble Lords that as the debate is the last business of the day, 90 minutes have been allocated to it.
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