RIGHT TO CHALLENGE CONDITION OF TENANCY (Hansard, 18 January 1984)

§ Mr. Donald Dewar (Glasgow, Garscadden)
I beg to move, That the clause be read a Second time.
The clause involves a technical matter of some importance. Section 16 of the Tenants' Rights, Etc. (Scotland) Act 1980 deals with leases and secure tenancies. Section 16(4) of that Act enables a tenant in a secure tenancy who considers that the lease drawn up by his landlord does not fairly reflect the tenancy's existing terms to go to court to settle the dispute.
I understand that difficulties arise if a tenancy agreement is in the process of negotiation and has not been executed because of a dispute about the terms. We may be wrong technically, but we are advised that recourse to the courts to settle a dispute cannot take place until a secure tenancy exists. The new clause aims to make it clear that when a dispute occurs about the drawing of a tenancy agreement, the tenant has recourse to the sheriff court to settle the dispute instead of only after the agreement is executed. Without a change, the tenant would have to put his name to the tenancy agreement before having the right to go to the sheriff court to dispute the terms.
I do not wish to delay the House further, because debates about broader principles are still to come. I hope that the Minister can comment on the new clause and reassure us that the difficulty is met. I hope that he will regard the problem sympathetically.

§ The Under-Secretary of State for Scotland (Mr. Allan Stewart)
I am grateful to the hon. Member for Glasgow, Garscadden (Mr. Dewar) for setting out the reasons for the probing new clause. I shall explain the position, but I can not provide authoritative interpretation of statute, because that is a matter for the courts.
There is no ambiguity about section 16 of the 1980 Act, which provides tenants with a means of challenging conditions in tenancy agreements drawn up by their 359 landlords if the conditions do not fairly reflect the existing terms of tenancy. However, when a tenant has signed his lease, the existing terms of his tenancy are, by definition, the terms embodied in that lease. There could be no question of that lease failing to reflect those terms fairly. In short, there is no doubt that a tenant's right under section 16 to challenge the terms of the tenancy agreement drawn up by his landlord ceases when the tenant signs that agreement.
However, section 17 enables tenants, after they have signed their leases, to apply to the sheriff to strike conditions out of the leases if they consider that the conditions are unreasonable and the landlord refuses to agree to the waiving of those conditions. So tenants have the right to challenge the terms of their tenancy agreement before they sign it if they consider that it does not fairly reflect the terms of the tenancy, and they have the right to challenge the terms of the agreement after they have signed it, if they consider that it contains conditions that are unreasonable in terms of section 17.

§ Mr. Dewar
It is unlikely that any other hon. Member wishes to join this little debate. I see that I am right. I am grateful to the Minister for what he has said, he is saying that I have misunderstood the situation, and I accept that. He says that under section 16(4) there is a clear right to challenge the terms of a lease before it is signed, if there is a dipute about how it is drawn up, and that in the aftermath — as one might call it — of signature and execution, it is still possible under section 17 to petition the courts on the ground that a condition of the tenancy that has been executed is unreasonable. Presumably, because of that statutory right, it could not be argued that the tenant was barred from arguing that case because he had signed the lease at an earlier stage.
If that is so, and despite the becoming modesty of the Minister's remarks about his authority on matters statutory, I am quite happy to accept what he says. The new clause came from the Scottish Consumer Council, which has taken a helpful interest in this amending legislation, and I have no doubt that it will be interested to know what the Minister said. If there is further confusion, no doubt it can be cleared up in other ways at later stages of the Bill. I thank the Minister for his explanation, and I beg to ask leave to withdraw the motion.