§ Mr. George Robertson
I beg to move amendments No. 11 in page 2, line 40, leave out from first be 'to subject' in line 41.
The purpose of the amendment is to exclude from the clause the wordsand shall be deemed always to have beenThis is a remarkable amendment. To the outside world, from the large assembled groups on the seats in this Chamber, it may not appear that we are discussing something of major significance, but there is little doubt that that simple phrase, slipped into the clause, has mind-boggling implications.
The Government have brought forward a principal and an amending Bill in the same Session of Parliament. It is now in clause 2. It relates only to clause 2 and not to the previous clause, which was the clause that led to the Bill coming forward so hastily. But in relation to clause 2 and a number of issues within it, it will not apply simply from the date of Royal Assent to this legislation but will be deemed to have always been in existence. Clearly, if the principle is to be adopted that the Government can legislate for all times prior to an Act of Parliament getting on the statute book, some very interesting situations are likely to develop.
1387 There are obvious constitutional implications for Parliament involved in this matter. It will be interesting to see whether the Government and their inbuilt silent majority will start to use this form of words as a precedent.
For example, will a criminal justice Bill for Scotland include measures that are accompanied by the provision that they should be deemed always to have been subject to legislation? The House of Commons and the country would consider that to be intolerable. There is no reason why we should accept the principle that the Government can legislate for their mistakes and legislate that the mistakes were never made in the first place.
Those responsible for perpetrating these errors in the flood of legislation that has passed through the House of Commons this Session appear to be trying retrospectively to wipe the slate clean. If the Bill becomes an Act, it will be deemed that none of the mistakes was made in the first place. I am sure that my hon. Friends agree that there are dangerous implications. These details may be technical and some of the corrections are minute. However, one of them figured prominently in the Minister's opening speech on Second Reading, so it can hardly be described as being of negligible importance. By the phrase in question, the correction shall be deemed always to have been part of the legislation.
It may have seemed like a good trick by those who draft legislation to insert this provision and to ensure that the mistakes that were not noticed until this stage would cease to exist. I hope that the Minister will give us a convincing explanation and reassure the House in general terms that we are not likely to see this form of words in any future legislation.
§ Mr. Rifkind
The hon. Member for Hamilton (Mr. Robertson) advanced an eloquent case against the principle of retrospection. I entirely agree with his case. It would be undesirable and unacceptable for any Government to seek to act in the way that the hon. Gentleman has described in his eloquent remarks.
I can reassure the hon. Gentleman. He will be aware that the retrospective nature of clause 2 applies merely to the 1388 provisions of the clause. He will remember that his right hon. Friend the Member for Glasgow, Craigton (Mr. Milian) asked for an assurance from the Government that no elderly folks' housing would be excluded and that from the passage of the Act it should be ensured that no housing coming within the category of the amending Bill would be sold in the interim. We have sought to meet the Opposition's requirements. That is why clause 2(a) appears.
I turn to paragraphs (b), (c) (d) and (e). Again, I can reassure the hon. Gentleman. It so happens that the provisions in the original statute do not come into effect until 1 December. Therefore, it is unlikely that there can be any retrospective element.
The hon. Gentleman has indicated his views on paragraph (f). He will be interested to know that the normal presumption against retrospection does not apply when the provision in question is purely declaratory. I refer the hon. Gentleman to "Craies: Statute Law", which is an authoritative statement on these matters. On page 395 it is stated:Where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicableThe paragraph merely declares what, in the Government's view and in the view of all those who have given legal advice on the matter, is the existing law. It is declaring the existing law and not changing the law. Therefore, the presumption against retrospection is inapplicable.
The hon. Gentleman is a fair-minded man. I am sure that in the circumstances that I have outlined he will recognise that the heinous charge that he was tempted to make against the Government is inappropriate.
§ Mr. George Robertson
Would that there were some supreme court in which the Minister's eloquent submissions could be tested. I am a humble trained economist. I did not even catch the title of the authority from which the Minister quoted. My breath has been taken away. There are deep implications that others, on reading the account of this debate tomorrow, may pursue at greater and more entertaining length.
I accept for the moment the Minister's assurance that the provisions in paragraphs (a) to (e) appear as a result of the 1389 insistence by the Opposition that there should be no gap during which time there could be exploitation leading to the sale of houses covered by this minor concession. If my legal friends had been present there might have been a challenge on paragraph (f). However, at this stage of the evening that challenge can hardly come from me. I am neither qualified nor inclined to do so. Therefore, I have little option at this stage but to beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. George Robertson
I beg to move amendment No. 12, in page 3, line 7, leave out paragraph (f).
This is a matter that has already taken the time of the House earlier in the evening. The effect of the amendment would be to leave out paragraph (f), the Government's renewed definition of the words "heritable proprietor" which figured in the original Act and which have now become such a major issue.
This will be an interesting debate. The Minister's introductory statements on Second Reading seemed mutually contradictory. He said that there was some doubt whether the original definition of "heritable proprietor" covered the position of local authorities in relation to the majority of their council housing stock. He then said that the Government were entirely satisfied that the Act was not defective. He said that there was independent legal advice available to the Government indicating that it was not defective and could not be interpreted as being defective. He said that the Government were therefore satisfied with the original drafting.
However, the Minister performed a somersault. He said that there are those who will exploit any shred of doubt. Having excluded the possibility of any shred of doubt, the Minister said that there are those who will exploit any nonexistent shred of doubt. Therefore, the Government, so he argued, must legislate to secure that there is not a vestige of the doubt that should not have existed in the first place, and which the Government are convinced did not exist in the first place.
We are seeing some interesting examples of legislation upon legislation. They 1390 are coming in fast and furious. Their purpose is to block loopholes that the Government are convinced do not exist. This would be of almost humorous proportions if public expenditure consequences were not involved in discussing these issues. This is the second House of Parliament that has debated the issue. The other House has debated it at considerable length already. I dare say it is possible for the Treasury mandarins to cost out to the last penny of the PSBR the inflation that is directly attributable to the man-hours spent by the Scottish Office in putting this measure before us.
If the Minister is as convinced—he seemed to suggest that he is entirely satisfied—that the Act is not defective, it is remarkable that we are being faced with superfluous legislation to block nonexistent loopholes. Either the legislation was unnecessary in the first place, or it is a wasteful duplication of time and effort.
The Minister's authoritative statements on "heritable proprietor" have come to nothing. The Government have taken the opportunity of reinforcing their case. The arguments so eloquently and forcefully put forward were undermined during the summer, because local authorities took conflicting legal advice from a wide variety of legal experts. Indeed, the Minister rose to his present eminence from such ranks.
Conservative Members have used loopholes to great advantage in the past. Let us hope that they stick to the view that loopholes should not be exploited. Let us hope that they stick to their view that the spirit of any legislation should be respected by the Opposition and the public. Perhaps the Minister has faith in his supporters, but I have not. I am sure that many people will view the Bill as an exercise in overkill. The Government were confident that there was no loophole, but they have used an enormous sledgehammer to crack that supposedly non-existent nut. It would be to the benefit of Parliament to accept this amendment and to exclude this superfluous redefinition of "veritable proprietor."
§ Mr. Hugh D. Brown
Hon. Members will not be disappointed, as I shall not speak for long. I do not wish any doubt to remain in the minds of Labour groups 1391 as to which one attracted the noble Lord's compliment. Did Dundee or Glasgow find the loophole and exploit it? The Minister said earlier that there was no refusal in terms of Glasgow. I assume that he will be in touch with Glasgow to clarify that point. The date of receipt of the application has some bearing on the whole machinery. Because of the National and Local Government Officers Association, some of those applications might have been made some time ago.
§ Mr. Rifkind
When my noble Friend the Minister made that remark in the other place, he was referring to Dundee district council. At that time, that was the only authority to have made any issue out of the situation. The letter sent by Glasgow followed later. When Dundee district council announced its intention to delay sales on that basis, the chairman of Glasgow's housing committee said that he and all the other Labour groups in Scotland were aware of that point. They decided that it would be stupid to press the point. Subsequently, they chose to act in what they accepted was a stupid way.
§ Mr. Brown
I do not want to give the Minister a third chance to use the word "stupid". My constituents are alert and on the ball. I have already had a letter from a constituent enclosing a copy of the letter sent to him. I received that letter last week and the debate took place on 29 October. Therefore, I am not sure that the Minister is right. I think that Glasgow issued the notices before the debate took place.
§ Mr. Rifkind
I am interested that the hon. Gentleman received such a letter. In Committee, he said that none of his constituents would be interested in buying their homes. At least that is not true. Dundee district council was the first local authority to try to make an issue out of this. I understand that when the council first sought legal advice it was told that there was no loophole. The council was unhappy with that advice and sought further advice from a legal person who happened to be a Labour councillor in the Lothian region. He gave slightly different advice.
Important advice was given to Cunninghame home district council by Professor Halliday, the author of a textbook 1392 on conveyancing. He is Scotland's foremost expert in such matters. He said:When one considers the objective of section I of the 1980 Act clearly it can only apply to a body which has power to grant a conveyance upon sale of a dwelling house but it would be a difficult and probably a malign construction of the section to hold that it excluded a body which could grant such a Disposition deducing its title. A 'heritable proprietor' is a person who is the proprietor of land and that nowadays applies both to a person who has a completed title and a person who has right to the land in the sense of Section 3 of the 1924 Act but has not yet completed title.In Professor Halliday's view, it may be a malign interpretation to suggest that there is a loophole. The hon. Member for Hamilton (Mr. Robertson) said that if we were that convinced that there was no loophole there was no need to include this declaratory clause. Dundee district council, for example, has indicated that it intends to do all in its power to delay the sale of houses. If this provision were not included, it would go to the Lands Tribunal. We are confident that the Lands Tribunal would find that it was not a loophole. However. Dundee council would no doubt consider appealing to the Court of Session and perhaps to the House of Lords; although the latter might not hold the same attraction. If it chose to take such steps, there would be a considerable delay.
Although we are confident that the result would be the same, it is important that tenants should not be prevented from exercising their rights if that can be avoided. If a special Bill had been needed we should probably not have bothered. We must consider this Bill, and it made sense, therefore, to include this minor provision.
§ Mr. George Robertson
One would think that the Minister had never been part of the fraternity that is capable of producing contradictory statements. If the Minister believes that anybody with a vested interest, whether political, financial or otherwise, will not exploit loopholes left by careless Governments, he flies in the face of experience, especially that of his colleagues. We are not only discussing the detail of "heritable proprietors". The Government have made an issue of the fact that some district councils have exploited an almost admitted weakness in the original Act. They say that those district councils were acting 1393 in a reprehensible fashion and that they were, in some way, betraying the interests of their electors.
When the Labour Government were in power, and before I entered the House, a Conservative-controlled council in Tameside, Manchester, used every conceivable legal mechanism, including the House of Lords, to block educational legislation that had been passed by this House. At that time, members of Tameside council were held up as paragons by members of the Conservative Party who are now in the Government.
This is not simply a question whether Professor Halliday, Mr. William Taylor or any other legal luminary gives contradictory advice. We are arguing here that it is legitimate for elected local authorities in this country to interpret the wishes of their electors and to use whatever weaknesses the Government have left in their legislation in order to further the interests of their electors. At the end of the day it will not be the judgment by Ministers of the Crown or Ministers in the Scottish Office that will condemn these individuals. The only legitimate test for this Government, as well as for Dundee and Glasgow district councils, will be through the democratic ballot box. That is how it should be.
Conservatives should remember that when Tameside council went to the people it had a pretty dusty answer from the electors because of the sort of obstruction that that council had displayed. There is a democratic process and there is an answer. It is no response by the Government to pour odium on councils that have used the weaknesses in legislation to further the interests of their own people. I have no doubt that other weaknesses in the legislation will be similarly exploited and local authorities, with the benefit of a mandate from their electors, have every right to use whatever weaknesses are left behind by a careless Government.
§ Amendment negatived.8.30 pm
§ Mr. George Robertson
I beg to move amendment No. 13, in page 3, line 13, at end add—'(g) in section 15(1) for "paragraphs 1 to 6" substitute "paragraphs 1 to 7".'.Here we have a real curiosity. We have a freely acknowledged error in the 1394 Bill—an error that is quite clear and that seems to be admitted by the Government and their draftsmen. Yet this evening there is apparently no amendment tabled in the Government's name.
The Tenants' Rights, Etc. (Scotland) Act 1980 provides in section 15(1):The court may, as it thinks fit, adjourn proceedings under section 14 of this Act on a ground set out in any of the paragraphs 1 to 6 of Part I of Schedule 2".This identifies paragraphs 1 to 6 as being the areas in which an adjournment should take place. Of course, this phraseology and the sequence of numbers certainly applied to the original Bill because at that stage ground 6 in part I of schedule 2 related to anti-social tenants and the need for repossession of secure tenancies. But under the influence of persuasive arguments from the Opposition, the Government agreed in Committee to include a new ground within part I of schedule 2 providing for alternative accommodation being available. That is the new ground 6 in part I of schedule 2:The landlord wishes to transfer the secure tenancy of the dwelling house to the spouse or former spouse of the tenant, or to a person with whom the tenant has been living as man and wife'Therefore, the existing ground 6 became the renumbered ground 7, and clearly the intention of the Government was that the phrase we are discussing—"paragraphs 1 to 6"—should read "paragraphs 1 to 7".
Why have not the Government tabled the appropriate amendment to correct what is clearly a mistake? Had it not been for the eagle-eyed members of the Opposition in noticing the Government's mistake, those covered by ground 7, who might require recourse to the provisions of, section 15(1), might have had to wait for some indeterminate time in the next Session of Parliament before the Government got around to correcting their mistake.
I have no doubt that the Government, having taken on those retrospective provisions with which we have already dealt, and having said that they were necessary because of the duress applied by the Opposition, have realised their mistake, so why were they not willing this evening to put down an amendment? They should table such an amendment in order to bring the provisions in section 15(1) in line with what was originally agreed by us as being the intention of that part of the Bill.
1395 We may be told that it is not mutually contradictory and, if it is an accident, it is deliberate. Those covered by ground 7 of part I, schedule 2 will be innocently left open to the possibility of not being able to exercise the rights normally available to them under section 15(1). If that is the case that the Government put forward, future legislation may depend more on the sleight of hand of the draftsmen than the eloquence of Ministers.
The Government may accept that the vigilance of the Opposition has rescued them from unwittingly placing a trap in the path of those covered by ground 7. They may accept with acclamation and thanks our contribution to strengthening their legislation, and accept the amendment.
§ Mr. Rifkind
I am sorry to disappoint the hon. Member for Hamilton (Mr. Robertson). The Government were well aware of the point before the eagle eye of the Opposition drew attention to it. We considered whether an amendment would be appropriate but decided that it was unnecessary.
Under summary procedure the sheriff has an inherent right to adjourn the proceedings. The hon. Gentleman was incorrect in suggesting that the provision gives the tenant a specific right. It does not. The clause is concerned with where the court can exercise its discretion to provide for an adjournment. It is arguable whether the whole of section 15(1) is necessary. The Government therefore took the view that an amendment was unnecessary.
§ Mr. Dewar
It is commendable that the Minister's remarks were brief, but they had no other commendable characteristic.
If we take seriously what the hon. Gentleman says, the provisions of section 15(1) are unnecessary. I do not believe that he would have taken that view if in Committee an amendment had been put down by the Opposition to that effect. His comments are specious nonsense. It is the voice of expediency, squeaking desperately through a bland exterior. It is perfectly clear that it is an attempt to avoid the minor embarrassment of asking their Lordships to accept a tidying-up amendment, which no doubt they would 1396 pass on the nod and which would give us a reasonably readable piece of legislation.
It is manifestly unsatisfactory that a person who goes to the sheriff and who looks at his powers under paragraphs 1 to 6 of part I of schedule 2 and sees that he has a specific right of adjournal, then discovers that, if he is proceeding under paragraph 7, he has no such right. There will be all sorts of learned arguments, perhaps not in the rarefied atmosphere that the Under-Secretary used to operate in in the Court of Session, but I can imagine jobbing petitioners in the sheriff court saying with a good deal of plausibility that there is a specific power to adjourn under paragraphs 1 to 6 but there is no mention of paragraphs 1 to 7. That would suggest that Parliament had deliberately excluded paragraph 7, and there must be some significance in that. That would be a sensible point to make.
It makes a laughing stock of Parliament for the Minister to say that there is no need for the amendment. His argument is derisory. There clearly is a need for the amendment if there are not to be misunderstandings. There is a lacuna in the Act which we can fill simply by accepting the amendment and sending the Bill back to another place, where I believe that it will be dealt with expeditiously.
A mistake has been made by the draftsman, and the Under-Secretary takes responsibility for that. However, it is a simple drafting error and not a sin of great moral turpitude. We should not make a great deal of fuss about it. If the Under-Secretary admits that a mistake has been made, I shall not point the finger at him and say that it is a major political error. That would be ludicrous. However, it becomes a matter of some importance if the hon. Gentleman will not correct even a simple error such as this. That would suggest a stubborn pride and an unwillingness to make tidying-up amendments because his and his colleagues' sense of self-importance will not allow them to do it.
I do not see why the legislation of Scotland should suffer merely to save the face of the Under-Secretary who, as Under-Secretaries do, will no doubt soon pass to another place. It may even be that the hon. Gentleman will be rectifying errors in another place.
1397 Seriously, it would be bad if the convenience of the Administration and their wish to avoid a journey back along the corridors to another place left us with a glaring drafting error and a lacuna in the measure which might be the subject of comment and which would make the system look rather silly.
I hope that the Under-Secretary will respond. He has not given us an answer so far. He has admitted that there is an error in the Bill. There should have been a consequential amendment to an amendment made to the original Bill.
There are 14 paragraphs in the first part of schedule 2, and the provision in section 15 of the original Act was meant to refer to paragraphs 1 to 7. There must be an implication that it was not meant to refer to paragraphs 8 to 14. The Under-Secretary says that it does not make any difference, but I do not believe him. There is an error and there is no reason why we should not put it right.
It is an offence to the House and to common sense for the Minister to resist the amendment. I hope that the Government will accept it. It would be absurd for us to divide the House on a triviality when the Minister knows that the amendment ought to be made.
§ Mr. Rifkind
I am sorry that the right hon. Member for Glasgow, Craigton (Mr. Millan) takes that view, but I have nothing to add to what I said earlier. I told the hon. Member for Hamilton (Mr. Robertson) that this was not an oversight drawn to the attention of the Government by the Opposition; we had considered the point well before the matter was raised in another place. If we had thought that an amendment was necessary we would presumably have acted in that way, but we do not consider that an amendment is necessary. We consider that the sheriff already has powers of adjournal and nothing will not be possible as a consequence of the Act in its present form.
§ Mr. Dewar
I have no doubt that the Under-Secretary examined the Bill. Why did he allow the provision to stay in the Bill if it was redundant? When he came to the mature legal decision that the power was unnecessary, why did he 1398 not insert a simple provision to remove the reference to paragraphs 1 to 6.
It is particularly objectionable that we have half a provision in the measure. Either we should not have the provision, or we should have it for paragraphs 1 to 7. To have it for paragraphs 1 to 6 but not paragraph 7 is surely an illogicality.
§ Mr. Rifkind
If we had come to the conclusion that that part of section 15 did any positive harm it would have been sensible to have it withdrawn, but we did not come to that conclusion and therefore we did not seek to amend it.
§ Mr. Millan
It is silly for the Under-Secretary to resist the amendment. We argued a number of these matters in Committee and he knows that in section 15 of the original Act distinctions are drawn between the grounds for possession. The distinction between paragraphs 1 to 7 and paragraphs 8 to 14 appears in subsection (2). There is a reference in subsection (1) to paragraphs 1 to 6, presumably for good reasons, but in subsection (2) the distinction is between paragraphs 1 to 7 and paragraphs 8 to 14. That is an absurdity. I do not care what the hon. Gentleman says. I do not care at what time the Government discovered that this error had been made. A consequential amendment was not made to the original Act. The Government are no doubt embarrassed that if we make an amendment tonight the Bill will have to go back to the other place to have the amendment agreed. It is drafting amendment. It is a minor inconvenience to the Government.
§ It is wrong in principle that the Government refuse to put right an error on the ground that it may be inconvenient because the Bill will have to go back to the Lords to have the amendment agreed. The Minister has advanced no substantial argument for not correcting the error now. I do not wish to take the matter to a Division. It is a waste of the time of the House. The Minister has no right to refuse to accept the amendment and to waste the time of the House. I ask him to agree that the Government will accept the amendment so that we can get on to the remaining business before us.1399
§ Mr. Rifkind
If I thought that the amendment was necessary. I would agree to it. I am afraid that I do not accept that it is necessary. It would therefore not be right to agree to it.
I will say no more. The Minister is being extremely silly. We shall simply have to take this matter to a Division. It does not do any good to the Minister's reputation, which is at reasonable level regarding his common sense, to talk in the specious manner in which he has addressed the Committee on this amendment.
§ Amendment negatived.
§ Clause 2 ordered to stand part of the Bill.
§ Clause 3 ordered to stand part of the Bill.