The Lords have disagreed with the Commons in their Amendment to page 19, line 26, at end insert—
in section 6, subsections (1) to (3); in section 7, subsections (1) to (4), but only where both partners of a cohabiting couple are entitled, or permitted by a third party, to occupy the house where they are cohabiting; sections (Interests of heritable creditor) and 8;".
§ for the following Reason—
§ Because the Amendment would unnecessarily complicate and unjustifiably increase the cost of conveyancing practice in Scotland.
§ Mr. Alexander Fletcher
I beg to move, That this House doth not insist on this Amendment to which the Lords have disagreed.
Although this was a Government amendment on Report, I would recommend that the view of the other place should be accepted. Indeed, it was my colleague the Minister of State who moved that the amendment should be disagreed in the other place. Our second thoughts on the matter are not prompted by any change of heart on the basic policy intention behind the amendment, but rather 311 because it has become evident that the amendment would cause unforeseen and unintended consequences which put its value in a quite different light.
The aim of the amendment—essentially in response to concern expressed in Committee by the hon. Member for Glasgow, Garscadden (Mr. Dewar)—was to give a more meaningful security to a non-entitled cohabiting partner for the duration of a court order giving that partner a right of occupancy in the cohabiting couple's house. Because the consent of a non-entitled spouse is not relevant to a cohabiting—rather than married—situation, without such an amendment there is nothing in the Bill to prevent a clandestine sale of the house by the entitled partner—notwithstanding the existence of a court order expressly intended to give security of occupancy to the other partner. Once the house is sold, no right of occupancy would exist.
The case for preventing such a sale is a strong one. Despite the practical reservations about meeting this point within the framework of the Bill expressed in Committee by my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind), it was therefore decided that amendment of the Bill was desirable. Unfortunately, at that stage in the Bill's progress time was not on our side and there was not the time for the usual careful consideration of the point which we would have liked.
In the event it became clear shortly after Report that amendment No. 43 moved at that stage had significant consequences for conveyancing which outweighed the added protection it provided for non-entitled cohabiting partners. The principal difficulty is that the amendment would lead to a requirement in relation to all house sales that the seller would need to provide an affidavit that he—or she—had no cohabiting partner. In other words, the gentleman in question would have to swear an oath that he had no mistress.
That would be required, as well as the spouse's consent or renunciation, or an affidavit of no non-entitled spouse—one of which will be needed normally as a result of the Bill. Many sellers would be embarrassed or offended by such an additional requirement; all sellers would be faced with a further expense in disposing of their house. Obviously the Government would wish to spare the blushes and protect the purses of people selling their houses; the amendment is essentially unacceptable becuse of the repercussions it would have in many house purchase transactions. I am sure that hon. Members on both sides of the Chamber would wish to avoid such unintended consequences.
A further, more technical difficulty caused by the amendment is that to be effective against a clandestine sale by the entitled partner, the court order granting the right of occupancy would have to be registered in the Land Register, because it is not defined elsewhere in the Bill as an overriding interest, as is a spouse's occupancy right in the matrimonial home. That would cause more expense to the partner needing her occupancy protected.
As my hon. Friend the Member for Pentlands explained in a letter to the hon. Member for Garscadden, it is for these reasons that the Government would prefer the amendment to fall. The number of occasions when such clandestine sales will occur is unlikely to be substantial. Moreover, it will still be open to a non-entitled partner who suspects that a sale is afoot to go back to the court to seek a separate order under clause 3(1)(e) to protect her occupancy rights. Because conveyancing law is something 312 of a minefield, I am afraid that it has not been possible to devise another way of meeting the amendment's objectives without some unfortunate consequences. Only a radical reshaping of the Bill could achieve that and obviously at this late stage such a step is not feasible.
I trust that hon. Members—and especially the hon. Member for Garscadden—will appreciate why the Government, though supporting the aims of the amendment, must accept the view of the other place that it should not form part of the Bill.
§ Mr. Donald Dewar (Glasgow, Garscadden)
I listened with pleasure to the delicate phrasing with which the Under-Secretary sought to cover his retreat. For all that, it is a retreat in some disorder. I am also glad to note that he has told the House that the Government are trying to spare people's blushes. They spare little else in their general activities, so I suppose that we should be grateful for that.
This amendment is not something about which we would wish to disagree with another place. Looking through the reports of the debate in another place, I notice that the Earl of Mansfield said that he did not expect a constitutional clash between the two Houses. In that he is totally safe.
I refer those with energy and much time on their hands to column 167 of the Official Report of the proceedings in Committee. When this matter first arose in a speech that I made, I drew attention to a problem that I understand the Secretary of State accepts as real, although limited. Neither I nor any of my hon. Friends was trying to insist on the necessity of incorporating clauses 6 and 7 into clause 16 of the Bill as it then was. I suggested to the Under-Secretary that a simple statutory statement that an order protecting the occupancy of a cohabitee under clause 16 should take precedence over any sale of the house might be a better way of achieving the desired end than that which was ultimately imported into the Bill by the Government on Report.
Therefore, I was not standing on any absolute formula. I was suggesting that there was a problem and that the Government had a duty to find a solution. I was happy when they came back on Report and said that the original amendment was acceptable and that they would take it into the Bill. The fact that they have recanted for technical reasons in another place is a matter for regret, although I understand the difficulties.
I shall ask one or two technical questions with which the Minister will be able to deal shortly. First, there are the technical difficulties which have arisen and which were rehearsed by the Earl of Mansfield in column 401 of the report in another place. This argument was repeated by the Under-Secretary. I understand that if the amendment stood, the seller would have to provide an affidavit that he was not cohabiting, and that, if he was married, this would be in addition to the consent in terms of clause 6(3)(e), necessary from any spouse who might be extant.
I accept that that might give cause for some embarrassment. I should have thought that one would not have to swear an affidavit to the effect that one was not cohabiting, but merely that no order had been sought and obtained by a cohabitee under the Matrimonial Homes (Family Protection) (Scotland) Act. I should have thought that the affidavit would be a formality and would have the 313 same effect for the buyer who was purchasing in good faith as an affidavit under clause 6(3)(e) which deals with a spouse as distinct from a cohabitee.
Another complaint is that apparently it would be necessary to register an order under clause 16 or such an order would not take precedence over any dealing affecting the house in question. It was for exactly that reason that I wanted such a statement of precedence in the Bill.
Although I do not disagree basically with their Lordships, I notice that the reason they give for refusing the amendment is that it would unnecessarily complicate and unjustifiably increase the cost of conveyancing practice. I do not think that the Government have shown any great inclination to reduce the cost of conveyancing practice or to deal with conveyancing law reform with any great energy.
It is clear that the problem remains. If the amendment falls, we are left with the difficulty with which it was meant to deal. If there is a sale of a property while there is an order under clause 16 in favour of a cohabitee, what will be the effect of that order on the sale?
Is the Minister's understanding that if, for example, an extension is sought for six months by the cohabitee, it would be relevant to plead the buyer's interest against the interest of the non-entitled cohabitee who might want that extension? Would the buyer in those circumstances have a right to enter an objection to such an extension? Would the non-entitled cohabitee be able to ask for the extension at all? The difficulty is that by that time the sale would have been completed and the entitled cohabitee would no longer be the owner of the property. I should have thought, therefore, that the right to apply to the courts for a six months' extension would fly off and be defeated by the fact that the sale had taken place.
The effect would appear to be that the right to extend and to continue in the property, in pressing social circumstances—for example, a cohabitee of long standing with young children—might inevitably be defeated by a sale during the period in which the order was running.
In Committee, at column 170, the hon. Member for Edinburgh, Pentlands (Mr. Rifkind) specifically suggested—in relation to a point raised by the Minister this afternoon—that one answer would be an interdict under clause 3(1)(e). Clause 3(1)(e) refers to a situation in which an order can be asked for protecting the occupancy in relation to the other spouse. The other spouse becomes the other cohabitee in the context of the almost private argument that the Minister and I are having. Will it still be open to a party to get an interdict under clause 3(1)(e) if the sale has been completed? I take the point that the Minister carefully used the words "if a sale is anticipated", and said that it might then be possible to get an interdict under clause 3(1)(e). But we are presupposing a situation in which relationships have broken down and there may be no reason for the cohabitee to anticipate the sale. The sale may be completed without her knowledge. She will then look at Hansard and see the Under-Secretary of State's advice to go for an interdict under clause 3(1)(e), and discover that that right does not exist, I suspect, because it is a right as against the entitled spouse or cohabitee, and the cohabitee is no longer entitled because the sale has been completed and he no longer owns the property. 314 These are points not only of detail, but of some substance. If I may recapitulate my argument, my suspicion is that the sale of the property during the currency of an occupancy order under clause 16 will seriously prejudice the position of a cohabitee, because it will destroy the right of renewal, and it will not take precedence over the sale, so that presumably eviction could take place before the occupancy order expires.
If I am right in these suppositions, it would seem to me that the Government have a duty—whether they can do it at this stage or not—to consider the matter clearly and to say whether there is some way of getting round the difficulty. These are dry and somewhat technical Committee points, but clause 16 is a difficult matter of balance when we are considering the right of cohabitees in the context of legislation which is designed basically to protect the right of a spouse.
In the deliberations on our amendments in the other place, Lord Selkirk at column 402 of the Official Report, said that we were in danger of putting cohabitees in very nearly the same position as a married couple. We are not trying to do that. We were giving them no rights to a capital claim or to any of the legal bulwarks which protect married people. We are attempting to give them occupancy rights under clause 16 in circumstances where it is just and socially equitable to do so and is seen to be so by the courts.
My fear is that the failure to produce a proper and adequate way of getting round the particular conveyancing difficulty to which the Minister referred will result in clause 16 becoming an extremely inadequate and ineffective protection, and that this part of the measure will be seriously damaged. That would be a pity. I hope that the Minister, even if he cannot do anything about the matter at this stage, will consider whether there is a way at some future date in which the matter can be remedied.
§ Mr. Alexander Fletcher
I suppose that it depends on the circles in which one moves, but I was surprised when the hon. Member for Glasgow, Garscadden (Mr. Dewar) suggested that it would be something of a formality for a seller of a home to provide an affidavit to say that he was not keeping a mistress. I should have thought that it would be something of an embarrassment to most people. It was for that reason that I said in my opening remarks that it might be wise to spare the blushes.
It is no part of our task to increase the cost of the sale of houses in Scotland, and I would not suggest for a moment that, because the hon. Gentleman is a member of the legal profession and a practising solicitor, he would see any advantage in increasing the costs of conveyancing or anything else in Scotland.
In agreeing with the Lords that the amendment should not remain in the Bill, we have given very careful consideration to how the position of the cohabiting partner can best be protected. I do not think that I can agree with the hon. Gentleman when he says that we are left with the problem. I do not think that we are left with precisely the problem that existed before the Bill came before this House. Admittedly, it gives complete protection to a married partner, but only interim protection, through the court, to a cohabiting partner.
Under clause 3(7), a cohabiting partner is entitled to claim compensation, and that in itself must be some improvement in the situation with which the hon. Gentleman is concerned. Most provisions in the Bill apply 315 to a cohabiting partner, but in this case, as I explained in my opening remarks, it was just not practical to bring the matter into the Bill itself.
The hon. Gentleman raised a number of other points of a more technical nature which we have considered most carefully but, rather than apply my accountancy knowledge to the hon. Gentleman's legal knowledge, it might be more advisable that my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind), who took the Bill in Committee, should write to the hon. Gentleman on these detailed and more technical points as soon as possible.
§ Question put and agreed to.