HC Deb 27 June 1961 vol 643 cc365-74
Sir K. Joseph

I beg to move, in page 13, line 21, to leave out and, in particular, that he ensures and to insert: Without prejudice to the generality of the foregoing provisions of this section, regulations under this section may, in particular, require the person managing the house to ensure

Mr. Speaker

I think it is convenient to discuss at the same time the Amendment in page 13, line 29.

Sir K. Joseph

Yes, Mr. Speaker.

In Committee we became involved in a little semantic confusion about the exact effect of the words "in particular" in line 21. Several hon. Members feared that these would limit the application of the regulations to be made under Clause 13. My right hon. Friend undertook to look into the matter.

As the House realises, my right hon. Friend now proposed to enlarge these words, as in the Amendment, to make it abundantly plain that the examples (a) to (e) and the additional example at the end of the subsection relating to the satisfactory disposal of refuse and litter are instances only and do not in any way limit or restrict the generality of the Clause. The Amendment should clarify the position entirely.

My right hon. Friend is advised that the words he proposes to insert are a great deal more effective to achieve their purpose than a proposal which I know the hon. Member for Fulham (Mr. M. Stewart) had in mind, but which does not now appear on the Notice Paper. I hope the House will accept this clarifying Amendment.

Mr. M. Stewart

We agree that these are useful Amendments and are grateful to the Government for introducing them.

Amendment agreed to.

Further Amendment made: In page 13, line 29, leave out "that he makes" and insert "to make".—[Sir K. Joseph.]

Mr. Graham Page

I beg to move, in page 14, line 19, to leave out "knowingly" and to insert "wilfully".

Mr. Speaker

I think it is convenient also to discuss the hon. Member's Amendment in page 14, line 29.

Mr. Page

I am much obliged, Mr. Speaker.

Subsection (4) creates the offence of contravening or failing to comply with the regulations which can be made under Clauses 12 and 13. In order to decide what the offence may be, one refers back to the beginning of Clause 13 and finds that the purpose of the regulations is to impose proper standards of management on the person who manages a house. That person may very well be anxious to do all the things which the regulations require of him, but, as subsection (4) now stands, he might be committing an offence even if the difficulties in carrying out the regulations were insurmountable. It would be no defence to him that he was unable to carry out the regulations however much he wished to do so.

Looking further on in Clause 13, we see that the person managing the house who is to be bound to carry out those duties under the regulations may be the owner or lessee of the house if he collects the rents. That may cover a wide range of persons in connection with the house who have to carry out the duties under the regulations. Again, they may be anxious to do so, but may be unable in certain circumstances to do so. Further in the Clause, in subsection (3), are the regulation making powers. That is the subsection under which the regulations can be made, and under paragraph (c) the regulations may impose duties on persons who have an estate or interest in, or who live in, a house". We do not know till those regulations are made what sort of duties are to be imposed, or how easy or difficult it will be for persons on whom those duties are imposed to carry them out, but if those persons on whom duties are imposed knowingly contravene or fail to comply with the regulations, they will be committing an offence.

My first Amendment is to substitute the word "wilfully" for the word "knowingly" to indicate that a person commits an offence only if he deliberately fails to carry out the regulations but does not commit an offence if he is unable to carry out the regulations although knowing what the regulations are and knowing that the regulations are not being carried out. There will undoubtedly be cases in which the lessor is unable at once to get possession of the premises; there will be cases, even, in which the manager of a house may be unable to carry out at once the duties under the regulations, such as, for example, to quote Clause 13 (1, a), keeping in repair all means of water supply and drainage in the house". He may be anxious to do so, but one can imagine all sorts of difficulties which may arise in his carrying out those duties; and yet, under subsection (4), if he knows that the regulations are being contravened, however impossible it is for him to put them right, he is committing an offence under the Clause.

Surely, we should not create an offence of that sort. The offence should be created only if the person wilfully is not complying with the regulations. My right hon. Friend in Committee, in justifying the word "knowingly" in the subsection, said: It will make it that much harder for a local authority to win a case if it has to prove that a man has wilfully contravened the regulations. Surely, that is not the principle on which an offence should be created—that it will be harder to prove the offence if one word is used instead of the other. My right hon. Friend went on: I should have thought that where it was clear to everyone that contravention was unavoidable because something had happened to prevent a man from doing what he was required to do by the regulations, it would be a very foolish local authority which brought proceedings against him."—[OFFICIAAL REPORT, Standing Committee D, 6th June, 1961; c. 846.] But surely, again, we ought not to create an offence in that way, that although, as is admitted in that quotation from my right hon. Friend's speech, contravention was unavoidable, we rely on the local authority not being foolish enough to take proceedings. Or, as appears later from what my right hon. Friend said a person under those circumstances might be convicted but …there would be very little chance of a court imposing a penalty on him."—[OFFICIAL REPORT, Standing Committee D, 6th June, 1961; c. 846.] Again, surely, we ought not to allow a conviction of that sort. The word "wilfully" would solve all these problems and would catch the real offender without putting the person who is unable to carry out his duties in jeopardy and liable to be convicted.

12 m.

The hon. Member for Widnes (Mr. MacColl) used the phrase "the virtuous lessor" in Committee. He is the man who might be unable to get possession of the premises to carry out the work required under the regulations however much he might desire to do the right thing. That situation could arise, as is recognised a little later in the Bill by Clause 20 in which such a person is given the right to apply to the county court for power to enter. My second Amendment would provide that if the virtuous lessor is taking steps under that Clause, although he may be in breach of the regulations, it should be a defence to any charge under subsection (4) of this Clause that he is contravening the regulations. At least he is taking such steps as he is able to see that he does not continue in breach of them.

I should not have thought that there could be the slightest objection to protecting the genuine person who is trying to carry out the regulations but is unable to do so without applying to the court for assistance. If he is diligently pursuing that course and trying to get the court's directions to allow him to carry out the regulations, he should not be subject to threat of prosecution and be put in jeopardy under subsection (4).

Mr. Brooke

I am afraid that there is a certain difference of opinion between my hon. Friend the Member for Crosby (Mr. Graham Page) and myself on this. It emerged in Committee, and I fear that it still persists, because the Government do not see the necessity for the Amendments. In Committee, I indicated my preference for retaining the word "knowingly". I need hardly go over the arguments again because my hon. Friend has admirably recounted them.

My hon. Friend wishes the word "wilfully" to be inserted instead of "knowingly", because he conceives a situation where the regulations might impose duties on a person who is not in a position to carry them out. These are regulations dealing with good management. They are not regulations dealing with the carrying out of major work on the premises, and I find it extraordinarily hard to see how the regulations would be likely to impose duties upon somebody who could not, if he wished, carry them out.

I still think that local authorities, which after all have a lot to do, are not likely to seek to add to their troubles and tasks by prosecuting a person who is virtually certain to win his case in the court because he will be able to show that he could not do what the local authority is prosecuting him for not doing. Even if a local authority took such action, I cannot conceive that the court would impose any penalty on him.

My hon. Friend has added the further proposal to write into the Bill a particular defence—if a person can show that he is diligently prosecuting an application under subsection (1) of section twenty of this Act". Clause 20 refers to the execution of work, whereas the regulations deal with good management. I do not lay too great stress on that, but it would be odd to insert a provision about what might be a good defence when various other circumstances might arise which could equally afford the person concerned a good defence. I do not see how, if one did that, one could stop short of specifying other forms of defence which a person might successfully plead.

My hon. Friend did rather pooh-pooh my argument in Committee against inserting the word "wilfully", but on both sides we have always recognised that the powers under Part II of the Bill are directed not against the ordinary person who is doing his best to look after his property, but against the sort of man who is determined to exploit the property and who knows, or will find out, any and every loophole to enable him to continue to do so.

Successful prosecution of a man like that would be made more difficult if the local authority had to prove that in every instance his failure to comply with the regulations was wilful. It is far harder to prove wilfulness than to prove knowing failure to comply. I am concerned lest some people, whom we all want to see brought to book by this part of the Bill, are able to slip through the net on account of such a change.

I greatly respect my hon. Friend's desire to protect the innocent lessor, or everybody else who is innocent in this matter, but the Bill as it stands gives sufficient protection and we should be erring in a dangerous direction if we inserted the first of the Amendments. The second is unnecessary and inadvisable because it specifies one form of defence leaving in the air the question of why the Bill would not in those circumstances go on to specify other forms. It is on those grounds that I must ask my hon. Friend not to press his Amendments.

Amendment negatived.

Amendment proposed to the Bill: In page 14, line 29, at end insert: Provided that he shall not be liable if he shows that he is diligently prosecuting an application under subsection (1) of section twenty of this Act.—[Mr. Graham Page.]

Question, That those words be there inserted in the Bill, put and negatived.

Mr. M. Stewart

I beg to move, in page 14, line 31, to leave out from "shall" to second "of" in line 32 and to insert: require an affirmative resolution of both Houses. This Amendment concerns the code of management for houses in multiple occupation, which code the Minister will have power under the Clause to bring into existence by making regulations. The Bill, as it stands, requires that these regulations shall be subject to what we know in this House as the negative procedure. The purpose of this Amendment is to make them subject to the alternative method of consideration, namely, the affirmative procedure.

We are now discussing a matter which we were not able to touch upon at all during the Committee stage. There was an Amendment put down, but the hon. Member concerned did not move it. Now I see that both he and we on this side have, on further consideration, thought it right to press the matter. We are not asking for the affirmative Resolution as against the negative merely in order to make it more difficult for the Minister to bring the code of management into existence. We think it desirable that it should be brought into existence; but, as the House will know, under the negative procedure the Statutory Instrument is made and can then be prayed against at any time in the following 40 Parliamentary days. If, however, it is so prayed against, we have only an hour and a half for debate, and that at a time when attendance is often somewhat limited and when it is not possible to go into any great detail on the matter.

We felt that that is inadequate for a document of this kind. After all, this will be something new in housing law. We do not criticise the Minister for his pride in that fact, but he does take a good deal of pride in how new this is, and the extent to which he is embarking upon a new venture. When this code of management, created by Ministerial regulations, comes before the House, we say that there should be an opportunity to discuss it at reasonable length. That result we should get if it was made subject to the affirmative procedure.

I ask the Minister to look sympathetically at our proposal. In another Session the Government will not, one supposes, have got its business into the muddle it has got into during this Session. It will, consequently, be able surely to find time for one affirmative, rather than negative, Resolution. I say that because this will not be one of those things which we have to discuss even every year. This is a modest request, and, if accepted, it will make it much easier for the House to take an intelligent interest in this new code of management when it comes before us.

Mr. Brooke

At this hour of the morning I will refrain from seeking to straighten out the mind of the hon. Gentleman about the alleged but non-existent muddle in which Government business is supposed to be. I will confine myself to this Amendment, which I have carefully considered. If this was a case of such a character that hon. Members on both sides might not have had proper opportunity to debate it, then I would have been disposed to have accepted the Amendment. I cannot think that it is a case of that character.

I have already told the Standing Committee that these regulations will be shown in draft to the local authority associations. The purpose of that will be to make quite sure that the Minister will have been able to inform himself of the technical points which representatives of the local authorities may have wished to raise. Indeed, I went further than that, because I recognised from our proceedings in Committee that hon. Members on both sides were interested, and I made it clear that I did not want to consult the local authority associations in any way which might give them an advantage over hon. Members of this House, and gave the assurance that if our Parliamentary traditions allowed I should be glad to show the regulations in draft form.

12.15 a.m.

I understand that there is no Parliamentary bar to my doing that, and therefore I repeat that assurance. It means that there is no fear of the regulations when they are laid taking hon. Members as it were unawares. It might happen in certain circumstances that only towards the end of the forty days would hon. Members become alive to the fact that there were questions which they wished to put to the Government about regulations, but there will be nothing of that sort in this case. Everybody who has shown an interest in the matter will have a full opportunity to see the regulations at an early stage, and there should be no risk of their passing unnoticed until perhaps the thirty-ninth or fortieth day of the permitted period for a Prayer.

It is not for me to dogmatise about these things, Mr. Speaker, but I have always understood that if in your judgment a Prayer has not been adequately discussed by half-past eleven you can permit the discussion to be resumed on another evening.

In all those ways it seems to me that there should be adequate opportunities for hon. Members not only to inform themselves of what is in the regulations, but to raise with the Government any points they wish to raise. I give the assurance that I shall be anxious to take a great deal of trouble about the framing of these regulations. We had valuable debates on this in Committee upstairs, and I indicated that I wanted to learn the views of hon. Members on both sides.

I recognise the importance of these regulations, and in resisting the Amendment I am not attempting for one moment to cause their importance to dwindle. I am resisting it simply and solely because in my judgment this is a matter which can be amply discussed by hon. Members on a Prayer, that is, under the negative Resolution procedure, and it does not seem to me that this is a case where an affirmative Resolution of both Houses should necessarily be required.

Mr. Mapp

I have listened carefully to the Minister. I also had the advantage of hearing him in the Committee upstairs. As I see it, the Minister is preoccupied about this vital set of regulations in relation to himself and to hon. Members. It is right and proper that both he and the House should have an opportunity to look at and review them.

The Minister said that he would consult local authorities before the regulations were placed before the House. So far so good.

Mr. Brooke

Perhaps the hon. Gentleman will allow me to make good an omission. I meant to say that I would consult not only the local authority associations but professional organisations and other bodies of that kind who would naturally be interested in the draft regulations.

Mr. Mapp

That intervention is in order. I remember the discussions on this point. What the Minister said just now adds to the point I am making, that both he and the House are anxious that the proper machinery should be used for creating this social improvement. These regulations will be of prime importance to the folks who have to live in these houses of multiple occupation. If, by the procedure of the House, in which I am not an expert, those regulations go through without much publicity getting into the homes of the average person, we shall have partly failed in our object of educating not only those who have the ownership and control of these houses but the folks who live in them, and who are entitled to understand what means are available to them of ensuring that their homes are up to the proper standard.

I ask the Minister not to be so modest about this. He should reconsider the matter, and if he finds what appears to be an ulcer in our housing system he should deal with it by way of the affirmative procedure, thereby ensuring that more is known about the regulations. We want to get off on the right foot. I have asked him to use his influence as a Minister to apprise local authorities of the things that this Measure foreshadows. Here is another opportunity for him to cultivate public opinion in the councils of Westminster, in order that these provisions may be brought in not only willingly but knowingly on the part of the public as a whole.

Amendment negatived.