Clause 26.—(GENERAL PROVISIONS AS TO IMPROVEMENT NOTICES.) (Hansard, 9 April 1964)

§ Mr. G. Campbell
I beg to move Amendment No. 62, in page 30, line 24, to leave out from "(1)" to end of line 25 and insert: for the words from 'and any' to the end there shall be substituted the words and any improvement notice against which an appeal is so brought shall—

(a) if and so far as it is confirmed by the sheriff, become operative on the final determination of the appeal;
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(b) if, in the case of an immediate improvement notice served under section 22 of this Act, it is suspended by the sheriff under paragraph (a) (ii) of section 27(10) of this Act, it shall become operative on the suspension ceasing to have effect in terms of the said paragraph.';"

It might be convenient to the House also to discuss the following Amendments: Amendment No. 66, in Clause 27, page 32, line 38, at the end to insert: (a) the persons who may appeal under subsection (1) against an immediate improvement notice served under section 22 of this Act in respect of any dwelling shall include a tenant occupying that dwelling, and subsections (2) to (9) shall not apply in relation to an appeal by such a tenant, but—

(i) such a tenant may appeal only on the ground that the carrying out of the works specified in the improvement notice will cause unreasonable hardship to him or to any member of his family residing with him, regard being had to the age, health and any infirmity of the tenant or any such member;

(ii) on such an appeal the sheriff may either confirm or suspend the improvement notice as he thinks fit, and any such suspension shall cease to have effect when there is a change in the occupation of the dwelling;

(iii) for the purposes of sub-paragraph (ii) of this paragraph there is a change in the occupation of a dwelling when the tenant who was occupying the dwelling when the improvement notice was suspended by the sheriff ceases to occupy the dwelling, except that there is no change in the occupation of the dwelling if, on the tenant ceasing to occupy the dwelling, it is occupied by a member of his famiy who was residing with him immediately before he ceased to occupy the dwelling.

Amendment No. 67, in Clause 27, page 32, line 38, at the end to insert: (a) in subsection (1) the words "other than a person whose only estate or interest is as a tenant occupying the premises" shall not apply in relation to an appeal against an immediate improvement notice served under section 22 of this Act. Clause 22 has been criticised on the ground that in a tenement in an improvement area in Scotland a tenant has no appeal or right to express his views. An hour or two ago we had a considerable discussion on the possibility of earlier procedures so that a tenant may have a say at an earlier stage. During that discussion reference was made to the appeal which is now being suggested in Clause 27 and which is introduced in Clause 26, which would be an appeal for tenants in Scottish tenements.
1366 I explained the reasons why a Scottish tenement presented very different problems from other buildings in this country and I need not repeat them. In Committee upstairs I was unable to accept a general right of appeal by a tenant against an improvement notice because that would have jeopardised the whole basis of a scheme for the comprehensive improvement of whole tenements at a time in Scotland. I also pointed out that it might incidentally encourage tenants to appeal against an improvement notice simply in the hope of forcing the local authority to rehouse them so that the scheme could proceed. Even if the local authority had no intention of rehousing them, there was this opportunity for the tenant to try to hold the authority to ransom and so delay progress.
The Government have felt able to introduce this limited right of appeal and the protection is also extended to any member of the tenant's family who is residing with him. This ground of appeal is similar to that proposed by the hon. Member for Central Ayrshire (Mr. Manuel) when we considered this matter in Committee. It also rules out any possibility of a tenant lodging an appeal simply in an attempt to get rehoused by the local authority and it has in this way been drawn to avoid possible abuse.

§ Mr. Willis
We are discussing three Amendments together and the really important ones in this instance happen to be not the first which the Minister moved but Amendments 66 and 67. I propose, therefore, to devote my remarks two those two. It is interesting to note that paragraph (a, i) of Amendment No. 66 states: such a tenant may appeal only on the ground that the carrying out of the works specified in the improvement notice will cause unreasonable hardship to him or to any member of his family residing with him, regard being had to the age, health and any infirmity of the tenant or any such member. As we suggested earlier, this is a limited appeal. We have sought in Amendment No. 67 to provide for a wider appeal. The Under-Secretary will appreciate from a study of the wording of the Amendment that we are widening the basis of appeal considerably. Our Amendment therefore would do greater justice to the tenant. The grounds of appeal contained in Clause 27(2,c) deal 1367 with matters which are of great concern to the tenant. They are matters on which he should be given some rights. We submit that if the Under-Secretary will examine this whole subject in greater detail he will come to the conclusion that our Amendment is better than his own.
One of the arguments which the hon. Gentleman has advanced ad nauseam in these debates is that conditions in Scotland are different because of the large number of owner-occupiers there. We should like to give these people the same rights as other tenants to appeal on the grounds that we have indicated. In moving his own Amendment the Under-Secretary did not suggest why it was impossible to accept ours. Neither did he explain Amendment No. 66 very well. He explained the other Amendment rather more fully. I hope that he will now give us a much fuller reply.

§ Mr. Millan
I support what my hon. Friend the Member for Edinburgh, East (Mr. Willis) has said. These are important Amendments and we ought to have an adequate explanation of them. I understand that Amendment No. 62 in Clause 26 simply paves the way for the provisions of Clause 27, but of course it also introduces the conception of the suspended immediate improvement order. There is, therefore, the introduction into the Scottish procedure of what could be a complication as compared with the very straightforward procedure which is laid down in the Bill at present.
Obviously, it would be out of order to go back to the debate that we had on Clause 22, but it seems to me that it is rather unfortunate that the Government should favour the kind of procedure which is proposed in their Amendments to Clauses 26 and 27 when we could have had a much simpler solution to the whole problem if the Government had been willing to look more sympathetically at the Amendments which we previously moved from these benches.
My hon. Friends and I are not in principle very attracted to the idea of doing this by means of an appeal to the sheriff court. That does not mean that we do not welcome the Government's Amendment so far as it goes. I think the Under-Secretary gave the impression earlier that we would object to the introduction 1368 of these safeguards into Clause 27. That is, of course, completely missing the point. In fact, our own Amendment No. 67, which we are discussing with the Government Amendments, introduces into Clause 27 safeguards, and we would think very much better safeguards, for tenants.
The protection proposed by the Government is the kind of protection which one introduces, as it were, only as a last resort. One wants to avoid the necessity of tenants having to appeal to the sheriff court. There is a tremendous difference between giving a tenant the right to do this kind of thing and giving an owner the right to do it. There are, no doubt, many owners of small amounts of tenement property who are not used to legal proceedings and who might be relucant to go to the sheriff court to appeal against an improvement order, but, on the whole, owners of property are familiar with legal proceedings. At least, they will normally have solicitors and will normally have been involved in some kind of legal transaction or another. Therefore, it is reasonable to expect them to be willing to use the safeguards that are given in Clause 27 by means of an appeal to the sheriff court.
What some of us feel about giving the tenant the right to make the appeal as is provided for in Amendment No. 66 is that it will be largely negatived in practice by the reluctance on the past of tenants to go to the sheriff court, a reluctance which has been described in discussion on a previous Amendment this evening.
We are not, therefore, attracted to Amendment No. 66 as compared with other procedures for the protection of tenants. Neither are we attracted by Amendment 66 in comparison with the much simpler Amendment No. 67 that we have drafted. Our Amendment would simply provide that the tenant, as well as the owner of premises, in the case of tenement buildings in Scotland, would have the right to appeal to the court on the grounds which are already laid down in Clause 27. By Amendment No. 66 the Government are restricting the rights of the tenant very considerably. At least, they are restricting the grounds on which the tenant can appeal.
1369 I think it is a fair comment that the Under-Secretary did not produce any very convincing explanation as to why we should prescribe the rights of the tenant in this way. There are, after all, in Clause 27(2) as it is expressed at present, a number of grounds which one would have thought would be very appropriate to an appeal by a tenant, and all of this is specifically excluded in Amendment No. 66 in the case of tenants' appeals. I would have thought so particularly of the grounds given in paragraphs (b) and (c).
11.30 p.m.
After all, we are not, even with the Amendments which are being made now, providing in any way for a discussion between the local authority and the tenant of the tenant's proposals for dealing with the property. Tenants are not necessarily stupid people, and many of them must have many ideas how their property could be improved, ideas born out of the long years of experience of actually living in the property. It seems to me reasonable that they should in one way or another have an opportunity of expressing their views about the way in which the property could be improved. They have no power at all to do that, and if they have not power to do that at the early stage when the improvement notice has been served on them, it seems to me that they ought at least to have the power to do that when the thing goes before the sheriff under Clause 27.
It surely ought to be possible for them then to be able to say, "We are appealing against this improvement notice because, speaking from our experience of living in the property, we honestly do not think that the proposals which the local authority has for this property are really suitable, considering the construction of the property, the amenities of the property, and the general nature of the property, from the point of view of the tenant." What is wrong, what is unreasonable, about giving the tenants the right to say that kind of thing?
Yet that is specifically excluded from the Government Amendment. What the tenant has to do under the Government Amendment to page 32, line 38, is to prove that the carrying out of the works will cause unreasonable hardship to him or any member of his family residing 1370 with him. Not just hardship to him, as under previous provisions in the Bill. In previous provisions the tenants have rights if any hardship is involved. Even if quite wealthy, and able to afford higher rents and so on, they have considerable safeguards. Here, however, the tenant does not only have to prove hardship: he has to prove unreasonable hardship.
What is unreasonable? I suppose it rather depends on whether one is suffering the hardship or inflicting the hardship. A local authority might think the hardship is really quite reasonable for the tenant to undergo. It might think that the desirability of the improvement of the property is so overwhelming that a little bit of hardship will not do anybody any real harm. One suspects that the tenant might have rather different views about this. He might feel that amount of hardship to be unreasonable. I must say I would have a considerable amount of sympathy with him.
It seems to me that it would be practically impossible for a sheriff to decide what is unreasonable hardship at least from the legal point of view. Sheriffs are, no doubt, very good people at interpreting the law, but it really is undesirable, it seems to me, to have sheriffs deciding on these matters, which really are matters of judgment. One sheriff might come to a completely different conclusion from another, not because he is any better or worse a lawyer than the other, but simply because he looks upon hardship in a different light from the other one of his colleagues. There are, I suppose, sentimental sheriffs on the bench; and I suppose there are sheriffs for whom the Spartan virtues have a considerable amount of appeal. There are all kinds of sheriffs. It seems undesirable that we should have this kind of thing written into a Bill and then leave it to the individual sheriff to decide in a particular case whether the point is proved.
Hardship is defined regard being had to the age, health and any infirmity of the tenant or any member of his family. There is nothing about financial hardship. One of the most common causes of complaint or anxiety on the part of a tenant in tenement properties when an improvement notice is served will be the effect upon 1371 his rent. It will be very much the most common cause of anxiety, as anyone familiar with tenements and with attempts to improve them knows. Yet there is no mention of it in paragraph (i) of Amendment No. 66.
Why should not financial hardship be a consideration? The whole Amendment is unnecessarily restrictive. I should not mind the introduction of some hardship ground as one of the grounds of appeal in the case of a tenant, but I see no reason why the definition of the hardship should be limited as it is. Why should not some of the other grounds of appeal which are provided by Clause 27(2) at present apply to a tenant equally as they apply to a landlord?
It seems to me that our Amendment No. 67 is very much better than the Government's Amendment. It would be much more easily administered. It would give to the sheriff court issues to be decided which would be much more appropriate for decision by a court of law, and it would in every way afford a much better approach to the problem. I hope that we shall have a very much fuller explanation of the Government's approach and a far more detailed refutation of the approach which we have advocated.

§ Mr. G. Campbell
I can tell the hon. Member for Edinburgh, East (Mr. Willis) that at an earlier stage I explained Amendment No. 66 and indicated that the Amendment which I had then to move was simply a paving Amendment. I did mention briefly the question of hardship and the tenant's family.
I turn, first, to Amendment No. 67 and the grounds of appeal suggested. In Committee, we considered a similar Amendment but we found that we could not accept an Amendment drawn in such wide terms. The hon. Member for Edinburgh, East spoke about owner-occupiers. They already have appeal rights under Clause 27. We are concerned with the tenants here.
I am glad that the hon. Member for Glasgow, Craigton (Mr. Millan) sees some merit in our Amendment after all. At an earlier stage, he seemed to pour cold 1372 water upon it. I am glad that he accepts it, though I realise that it does not go as far as he would like.
The object is that the sheriff court should judge what is unreasonable hardship. This is a matter of improvement of a dwelling, and there might be hardship such as the supply of water being off for some hours while work was being carried out. There might be a degree of hardship which in other circumstances might not be acceptable but which, for a short period in the improvement of a dwelling, might be acceptable. It is left to the sheriff to decide what, in these circumstances, is unreasonable hardship.
It was the hon. Member for Central Ayrshire (Mr. Manuel) who suggested that we should have a form of appeal much on these lines. He courteously told me that he could not be here after 11 o'clock because he had a train to catch, otherwise I know that he would be in his place. He also suggested that it should be the sheriff. I noted that the hon. Member for Craigton was critical of the fact that the appeal should be to the sheriff court. His hon. Friend the Member for Central Ayrshire said that these issues must be decided by someone who was above the local authority and the tenant.
As hon. Members know, the Government's concern is not to give opportunities for abuse in jumping the housing queue. The hon. Member for Kilmarnock (Mr. Ross) reminded us earlier this evening of the situation in Glasgow, where, unfortunately, housing is very short and where the housing queues are long. It is in Glasgow where the majority of these Scottish tenements are to be found. Therefore, as I explained earlier, we are particularly anxious not to give an opportunity—a temptation, I might say—for appeals or objections which are based on the possibility, albeit a false one, that a tenant might be able to jump the queue to a council house.
For these reasons, I cannot commend Amendment No. 67, but I suggest that the two Government Amendments, which provide this new appeal for tenants in a Scottish tenement, should be accepted.