Matrimonial Homes (Family Protection) Bill (Hansard, 30 June 1981)

§ Mr. Dewar
I beg to move amendment No. 34, in page 15, line 8, at end insert— '(6A) An application for an order transferring the tenancy of a matrimonial home as set out in subsection (1) above, may be made by the landlord, and a copy of such an application shall be served on the non-entitled spouse; the court before making any order, under this subsection, shall be satisfied that the non-entitled spouse consents to such application.'. I recognise that there are hon. Members waiting to debate faraway places, but they will have to wait a few minutes longer. The amendment is of some substance and importance, and I invite the Minister to comment substantially.
At an early stage in our proceedings this evening, my right hon. Friend the Member for Lanark (Dame Judith Hart) looked to the Minister for an assurance that nothing in the Bill would inhibit the right of the local authority to settle by administrative means the housing problems consequent on the break-up of marriage. The Minister hurried to give that assurance, but I said at the time that I was a little sceptical about whether it was soundly based, and that is still my position.
Under clause 13, The court may, on the application of non-entitled spouse, make an order transferring the tenancy of a matrimonial home to that spouse". The clause provides for the possibility of compensation being paid to the entitled spouse who has lost the tenancy. We have just passed a welcome amendment that makes it clear that the compensation provision will not apply in the case of a local authority tenancy, but, of course, clause 13 will, and the vast majority of transfers made by the court under the clause will be in situations where a non-entitled spouse asks for the transfer of a council house let by a district council.
In Committee the Minister made it unequivocally clear that he envisaged only two situations. One was where there was total agreement about the transfer and the entitled spouse or tenant was saying "I am moving out, and I am perfectly happy with the prospect of the tenancy being transferred to my wife". Where there is no tension or dispute about what should happen, the Minister said that the local authority should be in a position to make the transfer.
However, the Minister said that if that were not the situation it would be wrong to expect the local authority to pass judgment. I believe that that is a fair representation of what he said. It should not try to interfere, and the matter should be left to the courts. Presumably, the non-entitled spouse, who would be most likely to be the wife, would make an application under clause 13 and the courts would decide ultimately whether the transfer should take place. No doubt that seems a neat and tidy solution to the problem. I am lure that the Minister recognises that there are complications and subtleties to the situation, yet he by-passed them in his analysis.
I am in difficulty, because I do not wish to suggest that local authorities act improperly, even from the best of motives. However, when a local authority is faced with a wife who has been put out of her house it will sometimes approach the husband, even though he has not self-evidently agreed to a transfer of tenancy. The local 790 authority may attempt to persuade him to agree to the transfer of that tenancy. That may involve eloquent persuasion and an element of pressure. I am prepared to face that fact. However, that pressure is applied in the public interest. The family home may be a four-apartment unit and it may be occupied solely by the entitled spouse. One man might bounce around in a house that is clearly too large for him. The wife and the children might turn up at the local district council's office—in Glasgow the relevant unit is in Keppoch Hill Road—and they might find themselves in bed and breakfast accommodation.
In many areas local authorities in that situation will go to the husband and point out that the situation is unsatisfactory. They will suggest that they are prepared to rehouse him to his advantage. In that way, the wife and children could be accommodated in a house suitable to their needs, and the husband could reach a tolerable arrangement. I make no bones about the fact that encouragement would have been given by paragraph 6 of part I of schedule 2 to the Tenants' Rights, Etc. (Scotland) Act 1980. That provision allows a spouse to be evicted after the break-up of a marriage. However, that provision will be repealed by clause 13(11).
I am slightly worried that a local authority's sensible approach might be discouraged by the Minister's suggestion that nothing can be done until the non-entitled spouse has applied for and obtained legal aid and has gone to the court under clause 13 and obtained a transfer of tenancy. Although no doubt unintentional, that may act as an incitement and an encouragement to local authorities to adopt a stand-pat attitude and to say that the situation has nothing to do with them and that they do not have to make any judgment. They may say that they have the Minister's authority and that it is up to the non-entitled spouse to seek her own solution and for the courts to give a transfer order. By waiting that length of time, the transfer order may prejudice the husband or the entitled spouse. Instead of agreeing a transfer, he may find himself the subject of a clause 13 transfer. As the Minister made abundantly clear, that person may not qualify as homeless. He may be seen as intentionally homeless or may find himself low in priority in the queue, under the Housing (Homeless Persons) Act 1977.
In order to redress the situation, my right hon. Friend the Member for Glasgow, Craigton (Mr. Milian) and I tabled the amendment. That amendment makes it clear that under clause 13 an application may be made to the courts not only by the non-entitled spouse but by the landlord. In the vast majority of cases that means the local authority that lets the house. There may be several technical objections to the proposal. When the Minister and his advisers get to work, such objections are always multiplied.
There is an important change of emphasis in the legislation with the repeal of the temporary provisions under schedule 2 to the 1980 Act and their replacement by clause 13. Under the temporary provisions, the action in court could be taken by the landlord. Now it is left entirely to the non-entitled spouse. This is an important charge of emphasis, which underlines the kind of advice coming to the Minister and suggesting, I think wrongly, that unless there is total agreement among all the parties the local authorities should have no part to play in trying to reach an equitable and speedy arrangement. Speed is of the 791 essence if public finance is not to be wasted and, much more important, bitterness and social dislocation are not to set in.
I hope that the Minister understands the logic lying behind the amendment and can perhaps say something more encouraging in terms of looking to local authorities for an enlightened, active and flexible approach to these problems.
Clause 18 deals with the attitude of cohabiting couples. It has been suggested to me that cohabiting couples may be at a disadvantage when it comes to transfers of tenancy under clause 13. I accept that sections 13 and 14 are listed in clause 18(3) as sections that are applicable in a situation where a cohabitee has an occupancy order under clause 18(1). Would that right to transfer of tenancy give the transfer only for the period for which the occupancy right has been granted for the court under clause 18(1), or is it the case that once having got an occupancy right under clause 18(1) and therefore qualified for the use of a transfer of tenancy application under clause 13, such transfer, if granted, would be permanent, even though the occupancy rights were only transitory and limited under clause 18?
I may be making a difficulty where none exists. It is, however, a matter that has been raised with me. I was not happy about the matter. There may be difficulty over whether the courts, in exercising discretion under clause 13, will be as happy to do so in the case of cohabitees as in the case of married people. Many of the rights under clause 18 for cohabitees are limited to three months or six months and require recourse to the courts for renewal. What is the position on the transfer of tenancy? Are we, in one bound, free from restrictions, or do they still apply in that case?
I should, be grateful if the Minister would deal with the general point represented by amendment No. 34, and also the particular point to which I have referred.

§ Mr. Rifkind
I refer, first, to the question of cohabiting couples who can have the benefits of this clause. According to my understanding of the Bill, the tenancy, once transferred, would have been transferred. There is no power within the clause to transfer the tenancy for a limited period. Once the tenancy has been transferred, the new tenant has all the rights of the previous tenant including security of tenure, and so on, subject to such further statutory procedures as are provided. I should have thought that in a situation where the cohabiting partner had been given only a three-month or a six-month period the Court of Session might be reluctant to transfer the tenancy.
A situation might arise where the cohabiting partner was granted an initial occupancy right for a three or six-month period and the other partner indicated that if this was the position he had no longer any interest in the property and might therefore not oppose any transfer of tenancy. In those circumstances it might be in everyone's interests to agree to the transfer of the tenancy. That is a matter for the court to take into account. My understanding is that if it did believe that the circumstances justified a transfer it would be an appropriate transfer and could not be for a period of weeks or months. The hon. Gentleman may be aware that under the Tenants' Rights, Etc. (Scotland) Act tenants are given security of tenure and their occupancy and tenancy rights can be interfered with 792 only in certain circumstances which are relevant to the interests of the landlord, such as non-payment of rent or the non-fulfilment of certain conditions.
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If circumstances justify a change in tenancy and do not relate to the interests of the landlord but arise purely from matrimonial discord between the tenant and his wife or her husband, it is not appropriate for the local authority to be asked to exercise judgment. It is not a responsibility that local authorities want or should have thrust upon them. As the hon. Gentleman will recall, the provisions in the Tenants' Rights, Etc. (Scotland) Act allowing the local authority to transfer tenancies were introduced on the basis stated at the time—that that was purely an interim measure, which would be enforced only until the Law Commission's recommendations could be enacted. When the Law Commission's proposals are put in statutory form that will remove the need for reform of that kind.
The amendment gives the local authority the right to seek the transfer of the tenancy, but only with the consent of the non-entitled spouse. If the consent of the non-entitled spouse is forthcoming, it is more sensible that he or she should make the initial application. The landlord's interest would arise only on non-payment of rent by a tenant who had ceased to occupy the property. If there is non-payment of rent, a local authority already has the right to bring the tenancy to an end under the Tenants Rights, Etc. (Scotland) Act, and that is a material consideration that justifies an end to security of tenure. Therefore, the interests of the local authority are already fully protected.
On that basis, the hon. Gentleman's amendment is unnecessary in the interests of the landlord. The non-entitled spouse is not a responsibility on which one should expect the local authority to sit in judgment. A local authority is not familiar with the circumstances of a matrimonial dispute. The basis of the Bill is to enable the courts, which have experience in these matters and which are the proper judicial body to determine such issues, to come to an appropriate decision in each case.

§ Mr. Dewar
I do not want to pursue this matter for any length of time. There are circumstances in which local authorities have a genuine interest in what happens to a house that is subject to matrimonial tension, where a non-entitled spouse is in the street and, therefore, is a financial charge under the Housing (Homeless Persons) Act and where, as a result, there may be children at risk. The Minister has said repeatedly that local authorities do not want any part of this.
As I promised in Committee, I have taken soundings. I spoke today to a number of senior people in one of the largest district councils in Scotland. Those people made it abundantly clear that they felt it was their duty to seek an active solution to such problems. The provision that the Minister keeps saying proudly is only temporary in schedule 2 to the 1980 Act is of considerable help in achieving that.

§ Mr. Rifkind
The hon. Gentleman is correct. That is why that provision was introduced. It is an improvement on the previous position, where there was no power, as the Bill was not on the statute book. We are considering what will arise when the Bill is on the statute book and when there is a proper way for the courts to consider the occupancy rights in an individual house. At present, local authorities are continually under pressure from spouses 793 and there is no alternative way of solving that sort of matrimonial problem. Now there will be a much more satisfactory alternative.

§ Mr. Dewar
There is a difference between occupancy rights and tenancy, which is dealt with in the amendment. Occupancy rights are a matter between parties, but the landlord has an interest in a tenancy. It is the landlord who enters into a tenancy agreement and retains ownership of the property.
I am alarmed that those authorities which have taken an advanced position have been prepared to go to an entitled spouse and to ask him or her to move. For the reasons that I outlined in my opening remarks that may not be in the interests of an entitled spouse. However, it is in the interests of a non-entitled spouse who is homeless with children and it is in the interests of society to see the right unit in the family house that is far too big for the entitled spouse on his own. In such circumstances we should encourage rather than discourage local authorities to take an active role.
I am alarmed because clause 13 takes the local authority out of the process. That seems to be wrong. The Tenants' Rights, Etc. (Scotland) Act 1980—and this is real praise for that legislation from me—has a lot to be said for it in that respect. It preserves the local authorities' position in terms not of occupancy rights but of tenancy rights. It provides leverage with which to achieve a socially just solution which prejudices no one.
The Minister's po-faced attitude when he argues that the courts must decide will encourage people to take a restrictive and stick-in-the-mud attitude to their responsibilities. It may also mean lengthy delays before there is an equitable solution for the non-entitled spouse, who will have to obtain legal advice and legal aid and petition the courts for a clause 13 order. I do not insist on the wording of the amendment, but I had hoped that the Minister would give it a more sympathetic hearing.