COUNCIL HOUSE LETTING, CAITHNESS (Hansard, 12 March 1951)

§ Sir David Robertson (Caithness and Sutherland)
The case which I am presenting tonight is of importance for several reasons. Firstly, it reveals gross misconduct by a county council in the allocation of a council house; secondly, it involves a number of families living in homes unfit for human habitation longer than is necessary; thirdly, the law has been broken by the county council and condoned by the Secretary of State for Scotland; and fourthly, money provided by the British taxpayers for those in greatest need of homes has not been honestly applied for that purpose.
The facts are as follows. At the end of July a county council house became available for letting in the village of Halkirk in Caithness. There were 17 applicants for the house. Seven days before the allocation meeting took place the sanitary inspector for the county presented his report in regard to the 17 applications. One was from a single man who desired to get married, and the remaining 16 were from men with wives and families, all of whom were living in overcrowded and insanitary conditions, and eight of whom were living in conditions which were unfit for human habitation. But the single man got the house.
The council stated publicly that it was on the advice of the local councillor for Halkirk, a member of an ancient feudal family which has rendered distinguished service to the county of Caithness and to 1252 the country, that this extraordinary letting took place. When I ventilated the matter publicly for the first time at a public meeting in Wick, Councillor Finlayson, a member of the Caithness County Council, and a member of the Public Health Committee, stated that all my facts were wholly correct, and that the council had not only received advice from the local councillor of Halkirk, but he had subjected them to extreme pressure.
I do not in any way minimise the behaviour of the members of the Public Health Committee in doing something which they knew was very wrong at the behest of this member of a distinguished family. They behaved like serfs, in my opinion. These are the facts. I am not going to add to them. I leave the House to decide for itself what it thinks of them.
This matter was raised subsequently with me by two of the unsuccessful applicants, both ex-Service men living in Halkirk in abominable conditions, and as they were entitled to do, they alleged unfairness in the allocation, and asked me to take action to right this wrong. I passed on these two letters to the county clerk, with a covering letter asking that they should be investigated and the reply sent to me. There was no obligation on me to move in that courteous fashion, but there was an obligation on me to bring these letters to the notice of the Secretary of State for Scotland. I thought it more courteous to send them to the local authority concerned, with whom I wanted to act in whole-hearted co-operation for the benefit of the people.
The next I heard of this strange matter was that the Sunday newspapers of 6th August carried a report of a meeting held the previous day by the Caithness County Council in which I was rebuked for inter-ferring.

§ Mr. Deputy-Speaker (Colonel Sir Charles MacAndrew)
Has the Secretary of State any responsibility for this?

§ Sir D. Robertson
Under the law of Scotland the Secretary of State has the greatest responsibility. The Housing (Scotland) Act, 1935, Section 47 (2) imposes on local authorities the duty to give reasonable preference in selecting their tenants to persons who are occupying insanitary or overcrowded houses, 1253 who have large families, or who are otherwise living in unsatisfactory housing conditions. I submit there can be no doubt whatever that that is the law of Scotland.

§ Mr. Deputy-Speaker
It does not give the Secretary of State any control.

§ Sir D. Robertson
I have taken the advice of the highest legal authority available in Scotland, and I am assured that the only man who could have taken action to right this wrong was the Secretary of State, or one of his Law Officers. Obviously not one of these poor afflicted people who have been treated so unjustly could take action in the Court of Session, because he could not prove that he would have been the successful one if fairness had been used instead of the great unfairness which was used.

§ Mr. Deputy-Speaker
That again does not make the Secretary of State responsible.

§ Sir D. Robertson
The Secretary of State is surely responsible for upholding the law in Scotland.

§ Mr. Woodburn (Clackmannan and East Stirlingshire)
Is it not the case that the law of Scotland empowers the local authority to make this choice between tenants? It makes the local authority the body whose opinion decides what is the proper course where a house is to be allotted. Once that supreme authority has decided, no one else has any authority unless the law is altered.

§ Mr. Deputy-Speaker
On an adjournment Motion we cannot suggest any alteration of the law.

§ Sir D. Robertson
I am not suggesting any alteration of the law. I am quoting the law as it stands. If there is any meaning in these words it must surely be that in a case such as this, where the law has been broken, where there is widespread feeling—as there is in my constituency—that the law has been broken, and where members of the council admit that the law has been broken——

§ Mr. Deputy-Speaker
If the law has been broken, that is a matter for the courts, not for the Secretary of State.

§ Sir D. Robertson
Forgive me for referring to the matter again, but I did take advice. I was willing to take the matter to court, I was willing to encourage a 1254 group of these men to do so. I was told that was impossible because no one could say that his family was the one that would have been chosen. I was assured that the Secretary of State for Scotland was the man responsible for acting and taking it to the courts in restraining the council.

§ Mr. Deputy-Speaker
In my opinion—I am, of course, not a lawyer—he is not responsible. It is the law courts which must decide this. We have the Lord Advocate here and I understand that he has no responsibility, so I really have no option but to stop this debate.

§ Major Sir David Maxwell Fyfe (Liverpool, West Derby)
On a point of order. I speak with great deference in regard to the law of Scotland, on which I do not pretend to be an expert, but the law of the Sovereign King is that if a local authority does not carry out its statutory duty, an action for an injunction can be brought by the Attorney-General, and I cannot believe that the jurisprudence of Scotland is so weak that the Lord Advocate has not got similar power.

§ The Lord Advocate (Mr. John Wheatley)
I am sorry to disillusion the right hon. and learned Gentleman, but as far as my knowledge goes there is no such power vested in the Lord Advocate in Scotland. On the other hand, a person who had an interest, whether he might have been the tenant ultimately chosen or not, would have a locus in the courts to bring an action against the local authority if an action lay. I am not saying whether an action would lie or not, because the hon. Member for Caithness and Sutherland (Sir D. Robertson) obviously has his own legal authority whom he consults, and in those circumstances I do not think it would be my position to proffer him legal advice.

§ Mr. Woodburn
It is very important for hon. Members of this House that this should be made clear. The law has established the local authority as the supreme arbiter as to what is a deserving tenant or what is a tenant under the Act. There is no appeal from that. The local authority have that power under the Act, and I would respectfully submit that unless the Act of Parliament is altered, this House has no right, nor has any Member of the Executive any right, to interfere with the discretion of the local authority in the allocation of houses.

§ Sir William Darling (Edinburgh, South)
I think that the issue—which looks as if it is going to be truncated—is one which can be enlarged, with your permission, Sir Charles. What my hon. Friend has said is that the allocation of houses in Caithness is unsatisfactory——

§ Mr. Deputy-Speaker
This matter cannot be debated. I am led to understand that there is no responsibility in the Secretary of State. I have no option and must stop this debate.

§ Sir W. Darling
On a point of order. Am I not right in saying that my hon. Friend has brought forward a matter—which you have ruled out of order—concerning certain unsatisfactory conditions in house letting in Caithness? I venture therefore to suggest that what you have ruled out of order in my hon. Friend's speech is only part of the circumstances, because the Secretary of State has a duty to provide housing in Scotland under instructions of his own to the Scottish Special Housing Association, and the unfortunate person who is getting no housing under the present arrangements would seem to me to have a claim directly on the Secretary of State for housing, under the right hon. Gentleman's own hand.
As I think the right hon. Gentleman will agree, he has power in the Scottish Special Housing Association to provide houses for persons in special need, and I submit that those who are refused housing under the arrangement which has been described by my hon. Friend should have it under the other arrangement, for which the Secretary of State has a personal direct responsibility, and I should like to speak on that subject if I have your permission.

§ The Lord Advocate
I submit that that is not a point on which any question can arise under the present Adjournment debate. The substance of this debate is that the Secretary of State for Scotland has some responsibility because of the failure of the local authority properly to allocate houses in a particular set of circumstances. The question whether or not he could build houses through the medium of the Scottish Special Housing Association is, in my submission, quite irrelevant, because that deals with the question of building houses in a particular area. This question relates to the allocation of houses by a local authority, 1256 which is an entirely different matter and is primarily the responsibility of the local authority.

§ Sir D. Robertson
Of course, I should be the last person to suggest that the Secretary of State for Scotland or any other Minister should be saddled at any time with the responsibility of the individual allocation of houses. I have brought this case to the notice of the House for a totally different reason. That is because of what I, and a vast majority of my constituents, believe to be a case of gross misconduct, where the law has been broken by the local authority.

§ Mr. Deputy-Speaker
Misconduct of a local authority is not the responsibility of the Secretary of State for Scotland.

§ Sir W. Darling
No responsibility for housing in Scotland?

§ The Joint Under-Secretary of State for Scotland (Mr. Thomas Fraser)
It seems to me that the hon. Member for Edinburgh, South (Sir W. Darling), has been most insulting to the Chair. The Chair said that the Secretary of State for Scotland has no responsibility for the exercise of authority over the local authority in Caithness and Sutherland. The hon. Member for Edinburgh, South, has misinterpreted the Chair as saying that the Secretary of State for Scotland has no responsibility for housing in Scotland. I think that is being most mischievous, and that it is a serious matter.

§ Sir W. Darling
I understood that it was said that this debate was out of order because the Secretary of State for Scotland had no responsibility. No responsibility for what? No responsibility for housing in Caithness?

§ Mr. Deputy-Speaker
No responsibility over the matter brought before the House. That was my view.

§ Sir D. Maxwell Fyfe
I should like to get this clear. If the Lord Advocate advises us, we shall, of course, take his advice. But it is a most serious point. I want to know what is right. Is it the case that the Lord Advocate, the Secretary of State for Scotland, and the Executive have no power to raise an action for interdict against a local authority which exceeds a statutory 1257 power? If the Lord Advocate gives us that assurance, then, if I may say so, with respect, I fully understand your Ruling, Mr. Deputy-Speaker. But if that assurance cannot be given to us, surely my hon. Friend the Member for Caithness and Sutherland (Sir D. Robertson) has something to put before the House.

§ The Lord Advocate
I think that the right hon. and learned Member has a wrong approach to this problem. The challenge is not that a local authority has exceeded its statutory power; the challenge is that it has wrongly exercised its discretion in the discharge of its statutory duty—wrongly exercised the discretionary power. That is entirely different from exceeding a statutory duty. If a local authority exceeds its statutory duty, or fails in that duty, then surely one has a means under the Housing Acts, if it is a housing case, to bring that local authority to book. But we are not dealing with that type of case.
We are dealing with a challenge to the exercise of a discretion vested in the local authority. If that challenge is made, then it has to be pursued in court. It is the duty of the person wishing to challenge that particular action to take proceedings, and not the duty of the Secretary of State for Scotland or of the Executive.

§ Sir D. Maxwell Fyfe
I am grateful to the Lord Advocate who has put the point with the greatest clarity. But respectfully, I submit that that puts my hon. Friend on the right foot, because the Lord Advocate has drawn a distinction between exceeding statutory power and the misuse of a discretion within that statutory power.

§ Mr. Woodburn
The alleged misuse.

§ Sir D. Maxwell Fyfe
I am grateful. The alleged misuse. As I understood the hon. Member for Caithness and Sutherland, his allegation, which of course it is on him to substantiate, is that the misuse of the discretion was of so grave a nature that it amounted to misusing a statutory power, and misusing a statutory power is, of course, the same as an excessive, or wrong, use. The right hon. and learned Gentleman knows the long line of cases which have been established during the war and since, where statutory powers can only be used for the purposes for which they are given. If one moves 1258 outside that purpose then one is doing wrong, and all that I am saying is that my hon. Friend should, I submit, have the opportunity to show, as he seeks to show, that the misuse is of so flagrant a nature as to amount to wrongful use of a statutory power.

§ The Lord Advocate
I am afraid that this is developing into a legal argument, but I think the right hon. and learned Gentleman is mistaking the situation with which we are dealing here. There is not the slightest doubt that in allocating houses to this or any other gentleman the local authorities were acting within their legal powers. Recently we had to take the words "working class" out of the Housing Acts to widen the scope of the persons to whom allocation can be made. There is not the shadow of a doubt that they were acting intra viresin allocating a house to a person of this nature.
As I understand the gravamen of the hon. Gentleman's charge, it is that though the local authority could competently allocate this house to this particular person, having regard to other considerations and the Section of the 1935 Act, now incorporated in a Consolidation Act of 1950, they could make a prior allocation to B rather than to A. That is where discretion comes into it, and the discretion is vested in the local authority, and the right hon. and learned Gentleman was working up a case that they were acting illegally and outwith their powers. That was competent for them to do within the Housing Act and the only question at issue is whether this or any other application deserved what the application received, and that is a discretionary matter.

§ Sir D. Maxwell Fyfe
I am sorry to involve the House in a legal argument at this late hour, but it is an important point. The point I am making is whether a local authority is acting in complete disregard of the duties that are imposed on them by the Section of the Act to which my hon. Friend has referred. May I then put this point to the Lord Advocate? Suppose there was extrinsic evidence by letter from the clerk saying, "we have completely disregarded this and have refused to regard the matters placed to our regard under Section 5 of the Act," then I think I should say it was a wrongful action because they had disregarded their statutory duty. All I am saying is that my hon. 1259 Friend should be allowed to develop that case if he can, and if he can he may have something worthy of inquiry by the Executive. My hon. Friend has a strong burden to satisfy the House that the council have disregarded the duty imposed on them by the Section, and if he can satisfy the House surely this House as the guardian of the actions of the Executive should be allowed to hear that case.

§ Mr. T. Fraser
May I say that there is no need for any of us to draw on our imaginations to see whether or not this case ought to be discussed by the House. The fact is that this local authority, rightly or wrongly, allocated a three-apartment house to the applicant whose application was outstanding for the longest period of any of the 16 applicants. Manifestly, since this man lived within the area, he was a person for whom the local authority had a duty imposed on them by the Housing Act to provide accommodation. He had a claim for a house. It seems to me that all we can argue in this House or anywhere else is whether or not the local authority have properly exercised the discretion which the statute gives them in these matters.

§ Mr. Woodburn
Is it not important that in the exercise of its duties this House should not interfere with the discretion of local authorities? Local authorities will resent very bitterly this House passing judgment on them in matters which are left entirely to their discretion by an Act of Parliament. It seems to me that this House cannot over-ride an Act of Parliament, however eloquent an hon. Member may be in putting forward some account of its administration in the country.

§ The Lord Advocate
Since a legal question has been raised by the hon. Member for Caithness and Sutherland and the right hon. and learned Gentleman the Member for West Derby has developed it, I think it is right, Mr. Deputy-Speaker, that you should know what the legal position is to the best of our mutual ability to inform you. It would appear from the representations from the other side of the House that the Section of the 1935 Act quoted by the hon. Member for Caithness and Sutherland was the exclusive criterion in rela- 1260 tion to the allocation of houses. It is nothing of the kind. It is one of several criteria which local authorities take into account. Mention was made of unsanitary houses and overcrowded houses.
Anyone with any local authority experience knows that, while these factors are taken into account in a points allocation, other factors are also taken into account. My hon. Friend the Joint Under-Secretary mentioned the length of the application. War service is another matter taken into consideration in computing the number of points in an allocation. I merely use these examples to indicate that the Section quoted by the hon. Member for Caithness and Sutherland is not an exclusive section for consideration.
That reinforces my point that it is manifestly a question for the discretion of the local authority to take into account the factors referred to in the Section quoted by the hon. Gentleman, and also any other factors relevant and within their powers, and since one of their duties under the Housing Act is to provide houses for people in their area——

§ Sir W. Darling
Hear, hear!

§ The Lord Advocate
Yes, the duty of the local authorities is to provide houses for people in the area, and, therefore, as between one claimant and another it is manifestly the exercise of a function, and since that is the question at issue in this Adjournment debate, I submit, Mr. Deputy-Speaker, that your original Ruling was correct.

§ Sir D. Robertson
Further to the point of order raised by the Joint Under-Secretary and supported by the right hon. Member for East Stirling (Mr. Wood-burn), may I remind them that this excellent booklet entitled, "Choosing Council Tenants" was brought out owing to the pressure of public opinion in Scotland? People were gravely dissatisfied with the allocation of houses, and the right hon. Gentleman, who was then the Secretary of State for Scotland, very properly called in the services of the Scottish Housing Advisory Committee who published this book of 50 pages. They began by stating the law as I quoted it from the booklet. They say that is the law. I am not on that point now, but, as to the point made by the Joint Under-Secretary that the single man should be qualified because he was longer on the 1261 list, the book says that time of application has not to be taken into account as a major factor. This is a very important point——

§ Mr. Deputy-Speaker
We cannot pursue this matter any further.

§ Sir D. Robertson
I should like just one more moment to explain——

§ Mr. Deputy-Speaker
No. I have come to the conclusion, having heard the matter discussed on both sides, that there is no responsibility in the Scottish Office for anything that has happened in this case.

§ Sir D. Robertson
I agree that you have been most tolerant, Mr. Deputy-Speaker The only point I want to make is that the Joint Under-Secretary——

§ Mr. Deputy-Speaker
Order. I have said that we cannot pursue this matter as I have come to the conclusion that there is no responsibility in the Scottish Office. We cannot pursue the matter further.

§ Sir D. Robertson
I wanted to say that the only reference to single men here is that they are excluded.

§ Mr. Deputy-Speaker
That does not give the Scottish Office any responsibility. The Question is——

§ Sir W. Darling
The Adjournment half-hour is not yet at an end, and, therefore, I would raise the question of the Scottish Special Housing Association. As you, Mr. Deputy-Speaker, will be aware, we have some very bad housing conditions in Scotland, but Parliament gave power for a special instrument to deal with that unhappy state of things. Now this really is relevant, although I admit that I must not bring in any of the matter you, Sir, have just ruled out of order. But it is relevant to Caithness. There is not a local authority in Scotland which is satisfied with the housing of its people, and the Secretary of State now has——