HC Deb 02 July 1986 vol 100 cc1074-90

Lords amendment: No. 8, after clause 19, page 18, line 15, at end insert new clause B— B.—(1) The Housing (Homeless Persons) Act 1977 shall be amended in accordance with the following provisions of this section. (2) In section 1(2) (homeless persons and persons threatened with homelessness) after paragraph (c) there shall be inserted the following paragraph— (d) it does not provide the ordinary facilities of a residence and it is inappropriate for his needs, or it is unreasonable for him to continue to live in it. (3) In section 4 (duties of housing authorities to homeless persons and persons threatened with homelessness) after subsection (6) there shall be inserted the following subsection— (7) Where a local authority has a duty under subsections (4) and (5) above "accommodation" shall he defined as either—

  1. (a) a separate dwelling house that shall not be overcrowded as defined in section 89 of the Housing (Scotland) Act 1966 and shall meet the tolerable standard as defined in section 14 of the Housing (Scotland) Act 1974, or
  2. (b) in exceptional circumstances where a separate dwelling house as defined in (a) above is not appropriate to the needs of an applicant accommodation that is appropriate and reasonable in all the circumstances.""

Mr. Ancram

I beg to move, That this House doth disagree with the Lords in the said amendment.

This is not the first time that the judgment of the Law Lords in what has come to be known as the Puhlhofer case has been debated during the consideration of the Bill.

Hon. Members will recall that when this matter was first raised, when the Bill was discussed on report in March, I indicated that I would wish further time to take advice and to assess the implications of the Law Lords' judgment, but that I intended, along with my colleagues in the Department of the Environment, to give the matter careful consideration. In the following weeks, we looked very carefully into the implications of the judgment and in the light of the amendment passed in another place we have further reviewed this matter.

We concluded that the judgment of the Law Lords accurately reflects the effect of the Act and what we understand to have been the intention of Parliament on two main points. These are, first, that a local authority has discretion to reach a view on whether an applicant is homeless, taking account of the accommodation available to him. Secondly, where an authority accepts that an applicant is homeless and that it has a duty to secure accommodation for him, the authority again has discretion to decide what sort of accommodation is appropriate, having regard to the code of guidance issued by my right hon. Friend the Secretary of State. That was the position before the Law Lords' judgment; and it is the position today.

We have concluded, therefore, that the suggestion that the homeless persons Act needs to be amended is premature. We have, however, offered to keep the position under review, and if it can be demonstrated, over the coming months, that local, authorities are taking a substantially different approach to the discharge of their responsibilities to homeless people under the Act as a result of the judgment, we would be prepared to reconsider the matter. I have to emphasise that we have no evidence so far to support the claim that the decision in the Puhlhofer case is having an adverse effect on the prospects of homeless people who apply under the Act.

Sir Russell Johnston

The Minister has said that if the behaviour of local authorities could be demonstrated to have changed, he would be prepared to reconsider the matter. Presumably that means that he would be prepared to reconsider legislation. The reality is that the opportunity of introducing the relevant legislation is with us now. I fear that the Minister has not explained to the House what disadvantage will stem from making a change now.

Mr. Ancram

I shall turn in a moment to the amendment from another place that we are considering. When I last addressed the House on this issue on Report, I said that my view, which was based on advice that I was being given, was that in practice the judgment would not change the way in which local authorities operated in practice. I have given considerable further consideration to the matter. I have taken advice and I have consulted my colleagues in the Department of the Environment. It remains the Government's view that there is nothing to the contrary in what is happening, so far as we know, in Scotland or England to suggest that our view is wrong. We do not believe that the judgment has affected the way in which local authorities will act in practice. It does not have an effect upon the guidance given by the Secretary of State under the code of guidance and I have no intention of reconsidering the matter.

The amendment is unnecessary for the reasons which I have set out and I believe that it is dangerous. In the first place, it would give rise to severe difficulties of interpretation. Secondly, in spite of the claims that the amendment seeks only to restore the position to that obtaining before the Puhlhofer judgment, it will in fact impose substantial new duties on local authorities, and for that reason the amendment cannot be allowed to stand.

Sir Russell Johnston

New duties such as what?

Mr. Ancram

The hon. Gentleman asks, "New duties such as what?" from a sedentary position. Subsection (2) of the new clause provides that a person shall be homeless if he has accommodation which does not provide the ordinary facilities of a residence". No definition is provided, however, of what is meant by that and the other phrases that are used. In my view, they are not capable of being so defined. It would be left to the local authority to interpret the phrase as it saw fit. One can imagine the scope that could arise for litigation as a result.

Secondly, subsection (3) seeks to go beyond the present provisions of the Act by making mandatory what is at the moment advice contained in a code to which authorities must have regard. There are two points to consider, the first being what the amendment actually does, which is to define what accommodation will count as fulfilling an authority's duty. If an authority placed a homeless family in other accommodation — for example, bed and breakfast—it would not have fulfilled its duty and could be open to applications for judicial review.

This is quite different from the present position, where an authority would be fulfilling its duty by placing the applicant in bed-and-breakfast accommodation, but must have regard to the code of guidance which says that that should be used only as a last resort, and even then as a temporary measure. There will inevitably be circumstances in which authorities have to provide temporary accommodation for an initial period.

The amendment stresses the need to provide permanent accommodation and this is, I suspect, its main purpose. The code asks that permanent accommodation should be secured as soon as possible, but I believe that we should think carefully before extending local authorities' duties in the way that the amendment envisages. The implications for local authorities could be severe.

I accept that in carrying the amendment the other House acted with the best of intentions, but the Law Lords' judgment is not having the dire consequences that it fears. To amend the Housing (Homeless Persons) Act in what I believe is a hasty and ill-thought-out way is not justified on the basis of the evidence that is available to us and could have unforeseen and damaging consequences. We are proposing a much more measured approach of monitoring the position to see what, if anything, happens, and then to bring forward carefully considered amendments both for England and Scotland if they prove to be necessary. I believe that that is a much more sensible way in which to proceed and on that basis I ask the House to reject the amendment.

Mr. Dewar

It is always tempting streckly to accept any occasions when the Minister defends local authority discretion. That is not usually a virtue of which he approves. Therefore, I am sorry that I have to be a little sceptical and ungrateful on this occasion.

This is an amendment of some importance. In a sense, it is another round in a running battle which has been, to use an appropriate adjective, nobly maintained, largely in another place, and has been hard fought at almost every stage.

I should make it clear that, apart from the parliamentary activities, there has been some excellent briefing from outside the House, particularly from Shelter, which has a close interest in the matter. Some of the points I am about to make are based on information that that organisation has supplied. I think that it has the best of the argument and it is correct that this should be put before the House.

I moved an amendment on Report on 4 March and the Minister has referred to that debate. I want briefly to rehearse the argument. It all goes back to Lord Brightman's judgment in February 1986 in the Puhlhofer case versus the London borough of Hillingdon. In that case there was judicial consideration of the meaning of the word "accommodation" in the Housing (Homeless Persons) Act 1977.

The facts were simple and I do not need to detain the House long on them. It was the case of a young couple who were applying for help under the Housing (Homeless Persons) Act. They were put into bed-and-breakfast accommodation and the husband, his wife and two young children occupied one room which was inevitably cluttered with a double and a single bed, a dressing table and the various items of equipment that are needed for a small family. The council argued that that was adequate accommodation and that the couple were not homeless because they were being housed in those circumstances.

The merits or otherwise of that particular argument were not decided by the court. Lord Brightman did not take the view that he had to decide whether the course taken by the authority had been reasonable or unreasonable. He came to the conclusion that it was entirely a matter for the authority. He made the point: Parliament plainly and wisely placed no qualifying adjective before the word 'accommodation'. His Lordship said that the word "appropriate" or "reasonable" is not to be imported. Accommodation is not to be disregarded as accommodation merely because it is unfit for habitation in terms of the Housing Act.

His lordship developed that argument, and his position was that there are no rules. He did not talk at great length about the code of guidance. His position was that there are no rules. The House will remember the rather picturesque phrase that he used. He said that it was a misuse of language to describe Diogenes as having occupied accommodation within the meaning of the Act, but, by implication, almost anything else would go. Therefore, however much one might sympathise with the young couple, at the end of the day, the word of the authority, however unreasonable it might seem to any outsider, could not effectively be challenged.

It seemed to Labour Members and to a large number of people outside the House, as the Minister knows, that we should make some attempt to remedy that position and to write in a definition which would allow the homeless persons provision to operate in a way that Parliament would have wished when it put the Act on the statute book. The Minister referred to the fact that he was merely doing what Parliament always intended. I did not quite follow that argument, but, in any event, none of us wanted the Housing (Homeless Persons) Act to be operated unfairly. The vast majority of local authorities do not want to operate it in a way that is ungenerous or in such a way that the safety net is a particularly uncomfortable temporary resting place.

Therefore, on Report we attempted to build in one or two definition phrases and to suggest that someone was homeless if their accommodation was inappropriate to their needs, it was unreasonable for them to continue to live there, or if the accommodation did not measure up to certain statutory minimum requirements.

There was, as the Minister knows—I do not think that I am exaggerating—fairly widespread support and sympathy for that point of view. Indeed, the amendment that stood in my name was also signed by the hon. Member for Edinburgh, Central (Mr. Fletcher), who I am sorry is not here this evening. It is clear that there was all-party support. Certainly, we had the support of other parties on the Opposition Benches.

8.15 pm

The Minister himself was not unhelpful in his remarks. He made some caveats, of course. He said that he would have to look at the matter. At that stage I did not appreciate the somewhat sinister implications of his references to the need to consult the Department of the Environment. We did not force the amendment to the vote, I think wisely, and I left the debate fairly hopeful that we would see some action by the Minister. I was prepared to accept that my amendment was probably in many ways defective and might have substantial inherent difficulties that I had not thought of. But I hoped that we should see some attempt to meet the point of the amendment in a more professional manner with the help of the Minister's considerable departmental resources.

Therefore, it was a disappointment when it became clear in subsequent proceedings in another place that the Minister's position had hardened and that he had retreated from the rather more open attitude which he had displayed on the first airing of the argument. When on 13 May the Lords debated the issue on an amendment moved by the noble Lord Mackie of Benshie, tremendous emphasis was placed on the technical difficulties of the amendment that had been put down. It is significant that in most of the debates technical difficulties have always been advanced. When, finally, it was debated on 11 June in another place, the Minister, the noble Lord Gray of Contin, although he accepted that the matter had aroused the conscience of the House, went on to advance a number of arguments, at which I want to look briefly, which have been largely repeated by the Minister today.

The first and basic argument was that the whole matter was premature—the Minister used that word again a few minutes ago—and that there was no evidence of abuse of any kind. There are different degrees of enthusiasm for the Housing (Homeless Persons) Act. My local authority in Glasgow has an excellent record and has tried hard to give the cover envisaged in the Act. But there is some evidence that those variations can be worrying and that there are different approaches in different parts of the country.

The very fact that the Puhlhofer case emerged and has re-written—or rather almost unwritten—the Act would be a case for action. Given the measure of latitude which has been introduced, it should at least sound off some warning bells, to which the Government should listen.

Mr. Henderson

The hon. Gentleman has perfectly fairly made the point that local authorities have been trying to operate the Housing (Homeless Persons) Act. It has had slightly different effects in different parts of the country but he is right to say that there has been a genuine attempt to work the Act. None the less, he will also agree that local authorities have had difficulties in working that Act. That is why I would ask him to consider at this point whether this is a sensible time to make further difficulties and to change the ball game of the Act when local authorities are still feeling their way for dealing with the Act as it now is before we amend it. We should find positive reasons in Scotland for changing the Act at this stage rather than simply go along with something that has happened in England which may not be relevant.

Mr. Dewar

I understand that argument. It is perfectly fairly put by the hon. Gentleman. I suspect that it would be a good argument for not having a 1977 Act at all. If I remember the history of the legislation, many people argued at the time that, however desirable it was, it was an unreasonable burden, given the problems of the housing stock and that therefore we should not legislate.

The judgment of Lord Brightman means that a massive gap has opened up and it is only right that we should try to put in some minimum standards which will greatly bolster the statute and return us to something like the position that I imagine we were in in terms of the code of guidance. The code of guidance was helpful. It is still there, but is now in doubt because the House of Lords, which is persuasive in Scotland in any judicial proceedings, even if not binding, has taken this much more lax approach to the duties of local authorities.

I shall ask the Minister a specific question that he can deal with when he is winding up. It is about the monitoring. The Minister and the noble Lord Gray of Contin have said that the Government will monitor using their regular quarterly statistical returns from the various housing authorities. I am not familiar with these forms but I think that form HL1 is relevant.

My information is that it is extremely difficult to monitor on the basis of the information contained in the forms. In order to monitor, one might need to know the number of people who had been refused on the grounds that they were not properly homeless and the other reasons why they had been refused. At the other end of the process it would not be enough merely to record the number of people placed in accommodation under the Act. One would also need to have information about the nature of the accommodation and its standard. I am advised by people who work in housing that there is at least a lot of professional scepticism about whether the present forms cover such matters. I should like the Minister to deal with that point, to explain how the monitoring will work and to say whether it is sensible and directed in a way that will deal with the point about standards which is at risk here.

The other arguments that the Minister used against the amendment were that it would be pushing us not back to the status quo, but into a different and undesirable position. I am not sure that that is true. He suggested that if, for example, a local authority put a family into bed and breakfast accommodation as a temporary measure, the authority would be failing in its statutory duty if the amendment were accepted in its present form and might be subject to judicial review and find itself in trouble in the courts.

The Minister would prefer to leave the situation as it is and run the risk of Lord Brightman's interpretation of the present Act. A lot of the information and advice that I have received would dispute that concept, and the Minister is not on safe or sure ground. However, let us suppose for the moment that he is and that there are problems of the kind that he has described. That is a case for the Minister coming forward with his own amendment to meet the point that we are striking at but which avoids some of the dangers that he spies in the form of words that the other place has inserted in the Bill.

Most of the arguments about the difficulties of definition are specious. The Lord Gray of Contin said that the phrase in the Tenants' Rights Etc. (Scotland) Act 1980 reasonably suitable for the needs of a tenant had taken half a schedule to define . I have no doubt that there are a great many examples of cases where a good deal of work has gone into statutory definitions. If we read any piece of housing legislation or even the Housing (Homeless Persons) Act 1977 itself we will see many instances where terms like "reasonable" or "appropriate for needs" are used and yet do not seem to have resulted in the kind of difficulties spoken about by the Minister. My attention has been drawn to section 14 of the Housing (Scotland) Act 1974 as an example of exactly the kind of phraseology that is well established in the statute book.

I hope that Shelter will not mind me saying this, but I understand that it has taken legal advice in Scotland and in England. A number of the people consulted are familiar to me and I suspect that they would be even more familiar to the Minister. In England, Shelter consulted Mr. Robert Carnwarth, a silk who has written a standard book on the Housing (Homeless Persons) Act. He takes a different view from that of the Minister and said that the difficulties that had arisen from the failure to define accommodation in the Act were very considerable. I am not saying that we should stand or that we would have wanted to stand on this definition if the Minister had produced a better alternative. However, I am certainly not prepared to recommend to the House that we fall into line and abandon the whole enterprise as the Minister is inviting us to do.

I am sure that the Minister has read the debates in another place. In the past, the noble Lord the Earl of Selkirk was not unconnected with the Conservative party, although he seems to plough a somewhat independent furrow nowadays. That is to his credit. I think he spoke for noble Lords in all parts of the other place when he said that there was an overwhelming feeling that if there were practical difficulties the Government had a duty to bring in their own version. He said that that was what the other place wanted and that it was an almost unanimous feeling.

The Minister prayed in aid the noble Lord? Wilberforce as the only respectable prop to his attack on the amendment, but if one reads what the noble Lord said during the debate in the other place one will see that, although he had some caveats about the form of the amendment, he made it clear that he supported it. That would seem to suggest that the Minister was reading isolated parts of the debate.

It is disappointing that the Minister has not come forward with something to satisfy the wish to remove the evident dangers arising from the judgment which we have been discussing and which has dominated this argument about housing policy. I am sorry to say that to some extent we can see in this matter the dead weight of the Department of the Environment. I suspect that the new Secretary of State is antipathetic to the spirit of the Housing (Homeless Persons) Act 1977 and probably regards it as dangerous welfarism of some sort.

In Scotland we have a different legal tradition and system and, if I may say so, a different housing system and tradition. There is no reason why we should stay in step with the Department of the Environment. There is a case for the Scottish Office showing a little bit of smeddum and going its own road on this occasion. We should not take, as we are being asked to do, the line of least resistance and wait for some substantial evidence of scandal or abuse before we act. That is the approach the Minister recommends.

The legal consequences of the decision in the Puhlhofer case will be far-reaching. My attention has been drawn to one decision, admittedly English but interesting, involving the London borough of Wandsworth ex parte Lindsay in which the judge, Mr. Justice Simon Brown, made it clear that the law would have to change because of the Puhlhofer decision. He said: Although hitherto it has been accepted, in particular following the Court of Appeal decision in Part v Wyre Borough Council, that in order to properly discharge the duty under section 4(5) the accommodation offered must be appropriate, Puhlhofer makes plain that this is not so. On the contrary accommodation within the meaning of the Act, whether for the purposes of section 1, section 4 or section 17 —and there may well be other relevant sections—need only be premises properly so describable even if in certain respects they are unfit, inadequate or otherwise unsuitable. He felt that he had no option but to refuse to consider the facts which at least prima facie deserved consideration on the grounds that even if—I repeat the point—the accommodation was "unfit, inadequate or otherwise unsuitable" it was still accommodation under the Housing (Homeless Persons) Act 1977 and that was the end of the argument. If that is the decision taken by the courts, admittedly in England, relying on a House of Lords judgment which will be persuasive in Scotland, the code of guidance that the Minister relies upon is likely to be only a thin protective screen against that kind of legal action.

If the courts feel that they have to take that attitude, we should protect them from their own purism by trying to write into the Act the safeguards that the amendment represents. We are in difficulty because there may well be arguments against this form of words. However, we are in the unfortunate position that they are the only form of words we have because there is no way in which we can further amend, and the Government have declined to help us.

We cannot allow this matter to rest here and accept the Minister's advice. He said that he was taking "the more measured approach." I suspect that will amount to a do-nothing approach; there is a good deal of simple cosmetic camouflage in all the talk of monitoring and further legislation if it proves necessary. If we do not do something now and keep the pressure on, I suspect that we will sell the pass on the matter of importance. On that basis, I invite the House to agree with the Lords in the amendment.

Sir Russell Johnston

The House is greatly indebted to the hon. Member for Glasgow, Garscadden (Mr. Dewar) for the clarity with which he has put a strong case. We are all disappointed that the Government have not responded either here or in the other place to the arguments which have been rehearsed several times.

As the hon. Gentleman said, the amendment in the other place which was carried was moved by my hon. Friend Lord Mackie of Benshie. That was particularly appropriate as the original Act was taken through the House by my hon. Friend the Member for Isle of Wight (Mr. Ross). It was a private Member's measure with all-party support, but, obviously, the Liberal party has always felt that it has a special responsibility for it.

8.30 pm

The hon. Gentleman has rehearsed the arguments thoroughly and I do not wish to be repetitious. However, I should like to re-emphasise one or two points. The hon. Gentleman said, correctly, and any objective observer would agree, that the argument has been won by those anxious to correct the position created by the Puhlhofer judgment which, to use the words of the hon. Member for Fife, North-East (Mr. Henderson) in a different context, has changed the ball game. The judgment, not the amendment, has changed the ball game.

The arguments advanced by the Minister of State in the other place, Lord Gray of Contin, and repeated by the Minister tonight were characterised by Lord Mackie as inadequate. He described the idea of monitoring as a method of procrastination, and the hon. Member for Garscadden repeated that. One must admit that technical and legal arguments are perhaps the most difficult for hon. Members to deal with. Time and again we hear the Minister say, "The hon. Gentleman may intend such and such by the words, but the consequence will be different."

However, we have the advantage that Shelter has given considerable, detailed legal and technical attention to the arguments advanced originally in another place and reiterated by the Minister this evening. It is not the case that the amendment is unworkable.

That is the considered legal view, not only of Robert Carnwath, but of Jonathan Mitchell and Paul Watchman, a lecturer in law at Dundee university. Moreover, they are willing to be quoted as expressing that view. They are noted experts in their own right on the Housing (Homeless Persons) Act 1977, and they all agree that the amendment is workable, and deny that the amendment uses terms which are ill-defined. It has already been said that the Housing (Scotland) Act 1974 uses the words "tolerable standards" acceptably. All three experts agree that it is not the case that bed and breakfast accommodation would be ruled out. The Minister touched on that argument. Nor does the amendment return the position to the status quo which was that accommodation should be "reasonable". That was the judgment of Brown, and a family such as the Puhlhofers would be considered homeless. The amendment passed in the Lords does not go beyond that.

The amendment provides for homeless people to be housed by local authorities in accommodation which meets the tolerable standards and overcrowding standards laid down by law. It does not go beyond the code of guidance, and, perhaps, it does not provide very exacting standards. It does not stop local authorities providing a better than minimum standard. Indeed, if I may be permitted to come near to a quotation of my noble Friend, Lord Mackie, he made it clear in another place that even he would find the guidelines reasonably easy to follow.

Mr. George Foulkes (Carrick, Cumnock and Doon Valley)

Will the hon. Gentleman speak up?

Sir Russell Johnston

Is the hon. Gentleman going deaf already? I do not wish to tire the patience of the House by repeating what I have said, so I invite the hon. Gentleman to read my speech as I know that the Hansard reporters have good hearing. I am interested to know that a reason why the hon. Gentleman frequently makes his speech in a loud manner is that he does not even hear himself well.

Finally, it is alleged that the amendment does not define the exceptional circumstances effectively and properly, but the view is that the words are rightly used in social security law and that they do not represent an insuperable obstacle.

It is rare for Governments to change their minds, and to do so at the last moment of the 11th hour is exceptional. I cannot even think of an example. However, I suggest most seriously to the Minister that the arguments expounded in the other place and here both on Report and tonight from the hon. Member for Garscadden make a good case. Even if the Minister is right that so far the consequences of the Puhlhofer judgment have had no marked effect, we now have the opportunity to ensure that they never will. Surely that is desirable, particularly if the Government's objections appear, in the view of experts and persons skilled in the law and the interpretation of the Act, not to have legal substance.

Mr. Gordon Wilson (Dundee, East)

When one relies on common briefings there is a danger of repetition and that the same speech will be made repeatedly. As the lead speech given by the hon. Member for Glasgow, Garscadden (Mr. Dewar) was so clear, perhaps the best thing to do is, to use the legal vernacular, to say "I concur". However, I wish to add some points.

By seeking to overturn the House of Lords decision, the Minister has put himself in a dangerously isolated position. If things go wrong and local authorities do not accept the spirit of the guidelines, people will remain homeless and the Government and the Minister personally will have to accept responsibility. It is a pity that the Minister has not adopted the advice given by the Earl of Selkirk who said that he supported the amendment so that the Government could think again. I am probably going beyond his argument, but I am sure that the noble Lord wanted a form of words which the Government could table with the confidence that there would be no observable legal loophole.

Governments are not necessarily right about legislation and there are plenty of examples where Governments have been proved wrong, if anything, sometimes a long period after the event. In this instance, the legislation was passed in 1977 and now, nine years later, their Lordships, in their appellate capacity, have blasted a vast hole in the middle of the Act. It is discouraging and disappointing that in a sense the Government have gone back to the attitude adopted in the mid-1970s and before, that legislation was not necessary. The Housing (Homeless Persons) Act was carried through by a Back Bencher who was successful in the ballot. I recollect that at the time it was argued that it would be dangerous to legislate to deal with the problem of homelessness and that this would be far better left to guidelines to be issued by the Department of the Environment or the Scottish Office as those would be followed by local authorities.

There is no doubt that where particular problems develop local authorities may seek to get around the guidelines, and if there is no legislative back-up they will be perfectly free to do so. If an abuse occurs, we shall probably find that months, if not a year or more, will elapse before the slow-moving juggernaut of Government grinds into action and produces legislation. It is not always the case that a legislative vehicle is handy at the given time. If such a vehicle does not exist, hardship could be caused by the failure to take account of the changes that have been made in the law.

I cannot understand the Minister's reasoning. On the one hand, it seems that he is saying that there is no need to act because in effect the law has not changed—that Puhlhofer is the latest interpretation of the Housing (Homeless Persons) Act and he does not think that the changes that have been made by Puhlhofer so upset the law in relation to homelessness as to require himself or his Department to intervene with the legislation. On the other hand, he is indicating that, should problems emerge over a period of time, his Government will act. That is his excuse for action in the future.

I take the view that the Puhlhofer judgment in effect drives a huge gap in the homelessness legislation. In particular, one must look at the decision of Brown v. Hamilton district council, where Lord Wheatley said in the Court of Session: I reject the argument that as long as accommodation was available it did not matter what the nature of the accommodation was. In my view it must be reasonable in all the circumstances". He went on to make the interesting and picturesque statement that: A pigsty might be accommodation but not reasonable accommodation. No doubt he extended the argument as far as it would go, and while it would seem that Lord Mackie was conversant with very comfortable pigstys, he declared that he would not want to live in them.

Mr. Foulkes

He is a black sheep.

Mr. Wilson

I wish that the hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) would not treat this serious subject with such levity. If the hon. Gentleman has come in late from dinner, perhaps he will be quiet and allow the House to deal with this matter. He may not be homeless, but other people are. He should address himself to the House by speaking if he so wishes, but in the meantime I would be grateful if he would haud his wheesht.

8.45 pm

I contract what was said in Brown v. Hamilton district council with the judgment by Lord Brightman, where the word "reasonable" is effectively taken out. Either accommodation is reasonable or it is not. Puhlhofer says that it does not have to be—an extremely persuasive judgment. Indeed, it is one that local authorities could legitimately follow. I take the view that the rights of people who are homeless have changed, whereas before the Puhlhofer judgment those who were in that unfortunate situation had a right to be rehoused. It now boils down to the fact that they will be rehoused at the discretion of the local authority. That is a very dangerous development.

It is always the last resort of a Minister who is bankrupt of arguments to attack an amendment not on the basis of the argument but on its possible defects. I take this opportunity of congratulating Shelter on going to the exceptional trouble of taking legal advice. It had the arguments that were put to the other place on behalf of the Government by Lord Gray outlining the attack on the amendment. Shelter has given good, persuasive and sound reasons why the defects as seen by the Government do not exist. The Minister's attitude is completely unsupportable.

If one looks at the advice that has been given, it seems perfectly clear that the amendment can serve the purposes for which it is designed. The Minister took objection to the fact that a piece of guidance at present in the guidelines was now being imported into statute. There is nothing reprehensible in such a practice. It has been proven that the guidelines will work if they have been observed and are backed up by statutory authority. Therefore, there is no reason why the guidelines should not be rephrased and set in statutory form.

There are many cases in which advisory guidelines have subsequently been made law. The change made in this amendment is perfectly acceptable. At the end of the day, the problem is that the Government have been given a chance to make a perfectly reasonable change in legislation and to make it accord with the views of the Scottish public and the vast majority of Scottish Members of Parliament. But, as the hon. Member for Garscadden said, they have refused to take up that opportunity, largely as he suspected — and as I suspect—because they have been told not to do so by the lead Ministry, the Department of the Environment. Here was a chance for this Minister and the Scottish Office to show that they had some autonomy. By that standard they have failed the test.

Mr. Hugh Brown

I shall be brief. I say that because I was interested when my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) said that he would make a brief speech. It was such a speech in accordance with what he thinks is a brief speech. Nevertheless, I am on the same side.

I have listened to the Minister, to my hon. Friend and to two contributions from the same stable. I suffer from the advantage of not having received the brief. Therefore, I am not confused. You, Mr. Deputy Speaker, must be interested in this debate, because you and I were the perpetrators of all the difficulties that apparently are now to be corrected. Therefore, to some extent I cannot help having some sympathy with the Minister, although I shall not overdo it. I listened to the Secretary of State for Scotland's cheap comments in Edinburgh on Monday about poor attendance. I wonder what he would think about today's attendance. This is peak viewing time and also peak eating time. I will not make any apologies but it does not do us justice or credit to have such a poor attendance for Scottish business.

No doubt we shall lose this amendment. I am not 100 per cent. convinced that the amendment is necessary. However, when a Minister gives an undertaking that he will conduct a thorough review, I believe that that is what he means. If legislation is necessary—and we will not win the vote on this amendment — I hope that the Minister will tell us when he replies how he intends to conduct the review.

I am in favour of local authorities having discretion. I am not convinced that further legislation and definition is necessarily the right way to proceed. I must be cautious about this. I want an assurance from the Minister that the review will be thorough and that he will tell COSLA, Shelter and any other council for the single homeless that he will monitor what happens. He must disabuse us of any idea that there is a plot on the part of the DOE.

As you know, Mr. Deputy Speaker, the DOE is a very powerful Department. However, although there was much argument when the original Bill went through the House about cross-border problems, I do not believe that this is a major cross-border problem. I cannot believe that droves of people will flock to Scotland simply because there is a slightly different interpretation of the law in Scotland, which, according to the Minister, is not really a difference of interpretation. I hope that that is not a suspicion that would carry much weight.

This is not an easy matter to resolve. The Minister said that this could impose substantial new duties on local authorities. If that is the case, new duties mean more money. Unfortunately the Government will not receive cooperation from the housing authorities, which are hard pressed. That is further evidence of a suspicion that the Minister is putting up the case because he is not willing to find the additional resources that would be required if that meant an imposition of substantial new duties.

I hope we shall receive an assurance that the review will be thorough. I hope that we say with some confidence that if changes are needed in legislation the Opposition will cooperate to that end.

Mr. Ancram

We have had a useful debate on this important subject. It has become clear, and I am sure that the hon. Member for Glasgow, Provan (Mr. Brown) will have noticed, that there are two distinct and different views of the Puhlhofer judgment on both sides of the House. There is the view which I had expressed, that the judgment in practice will make no difference to the operation of the Act by local authorities in Scotland. The other view was expressed most forcibly by the hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston) who stressed that his noble Friend Lord Mackie of Benshie was anxious to correct the new position created by the judgment. The hon. Member for Inverness, Nairn and Lochaber said that the judgment had changed the ball game and the hon. Member for Glasgow, Garscadden (Mr. Dewar) said that the judgment had unwritten the Act. That is the point of difference.

It is my view and the view of those who advise me—and I must tell the hon. Member for Dundee, East (Mr. Wilson) that I did listen to Lord Selkirk and I considered the matter after the House of Lords decision—that the Puhlhofer judgment has not unwritten the Housing (Homeless Persons) Act 1977. I tried to make it clear earlier that the Law Lords judgment has not changed the statutory position nor Parliament's intention. I have dealt with that in some detail. Nor will the code of guidance which local authorities must have regard to within the statute be changed. I believe that the code is not in doubt.

Different views may be expressed about the effects of the judgment. However, my view and the Government's view are based on careful consideration and advice. To that extent, I return to my earlier argument that there is no factual evidence for the Opposition's argument that the whole practice will be changed by the judgment. It is my experience as a Minister who has dealt with a number of such Bills — and as a constituency Member of Parliament — that where things are happening on, the ground—if I may use that expression—there is usually no lack of anecdotal evidence about it. There are always examples of something that has gone wrong, either from people coming to a constituency surgery to complain or from reports from certain agencies which, hearing about certain cases, report them to hon. Members or to the Government. From the Government's point of view—and no further evidence has been adduced tonight — there is no evidence to suggest that the fears expressed in another place and here tonight are real.

Sir Russell Johnston

In making an assessment as to whether a legal view is correct before there is any practical effect, would the Minister accept that all one can do is consult people who judge themselves to be experts in that area? The alliance has quoted at least three people who have expressed it as their professional opinion that the Puhlhofer judgment changes the law. The Minister has said that there is no evidence for that. Surely that is evidence of some sort, is it not?

Mr. Ancram

It is my view, which is based on advice, that that is not the case. I do not suggest that alliance Members have received had advice but in this instance my view, which I have taken on good advice, does not conform with theirs. Had it conformed, I would have had to examine the code of guidance. I do not wish to trouble the House again with the code of guidance but it is worthy of consideration. Hon. Members who consider the code will discover that their anxieties are covered there. Within section 12 of the 1977 Act, the local authorities must have regard to the code. I am satisfied that the code of guidance does not need altering in the light of the Puhlhofer judgment.

Mr. Henderson

There have been several complaints about local authorities which have not been helpful and which have positively obstructed the right to buy. Has my hon. Friend had any complaints about local authorities refusing to pay attention to the guidance to which he has referred?

Mr. Ancram

I do not want to mislead the House and give a categoric yes or no to that. However, in the light of the fears expressed since Puhlhofer, I have had no evidence that that judgment has altered the way in which local authorities are operating the 1977 Act.

The hon. Member for Garscadden asked about monitoring. I repeat this point to the hon. Member for Provan, that I have offered to keep the situation under review. If it can be demonstrated over the coming months that local authorities are taking a substantially different approach to the discharge of their responsibilities, I would have to reconsider the matter. In other words, I wish to monitor the situation closely and if significant evidence suggests that my view is wrong I shall wish to reconsider it. I say that quite openly.

To answer the hon. Member for Garscadden, we shall monitor the situation through the regular quarterly statistical returns submitted to the Scottish Development Department by district authorities. Those returns, known as the homeless household case returns, show the number of applications made to the authorities under the Housing (Homeless Persons) Act and the number accepted as homeless or potentially homeless. If, as has been alleged, the Law Lords decision is likely to encourage authorities to conclude that a number of applicants are not homeless, that would be clear from those statistics. When an authority accepts a responsibility towards an applicant, the statistical returns also show the type of accommodation secured for the applicant. Again, therefore, if the Law Lords decision encourages authorities to place a larger number of applicants in short-stay accommodation and bed and breakfast lodgings, this will show up in the statistics.

9 pm

We shall, of course, consider any evidence that Shelter or other organisations wish to submit arising primarily from detailed knowledge of individual cases at local level obtained through their housing advice centres. We believe that in that way we can monitor the situation closely and reach a conclusion within a reasonable period as to whether our view is correct.

Mr. Foulkes

In monitoring the quarterly statistics so far, has the Minister detected any trend for particular authorities to have especially large numbers of applicants, more than would be predicted or more than the Scottish average? In particular, has he had representations from Kyle and Carrick district council about the difficulties that it is facing in this and other matters? I refer to people coming from outwith the district, getting on to the waiting list and having to be given priority. Those problems occur not just in respect of homelessness but in other respects. Will the Minister take account of those representations and pay particular attention to that aspect in future monitoring?

Mr. Ancram

The hon. Gentleman will not expect an immediate answer on a specific constituency matter. I will check to see what representations have been made. I am sure that we receive representations as well as statistics in this area. At the moment, however, I am trying to identify for the hon. Members for Provan and for Garscadden the type of monitoring that takes place and to show that it will be sufficient to determine whether our view is correct.

Mr. Hugh Brown

How will local authorities know about this judgment which is to make such a great difference to the lot of the homeless person? Will the Minister be sending out a circular? If not, how does he expect the change to arise that he intends to monitor?

Mr. Ancram

I do not believe that there will be a change. It is the Opposition who take that view. My submission has been that there will not be a change in practice. Local authorities have discretion in operating under the Act, but the code of guidance is intended to be precisely that. I shall not bore the House with a description, but it is a detailed code and it states the Government's view as to how the Act should be interpreted.

The hon. Members for Inverness, Nairn and Lochaber and for Garscadden said that the amendment would be workable. As I have said, I believe that there are two good reasons for rejecting it. First, as I have just argued, it is unnecessary. Secondly, it is dangerous because of the difficulties of interpretation. Here I disagree with the hon. Member for Inverness, Nairn and Lochaber. The words ordinary facilities of a residence or "inappropriate for his needs" or unreasonable for him to continue to live in it could all give rise to considerable difficulties of interpretation, as I am sure the hon. Gentleman will appreciate. In the first instance, it would be for the local authority to interpret those words as it thought fit. I do not believe that the amendment is good legislation or that it is necessary. On that basis, I ask my hon. Friends to disagree with the Lords.

Question put,That this House doth disagree with the Lords in the said amendment:—

The House divided: Ayes 172, Noes 110.

Division No. 243] [9.04 pm
Alexander, Richard Cranborne, Viscount
Ancram, Michael Dorrell, Stephen
Atkins, Robert (South Ribble) Douglas-Hamilton, Lord J.
Batiste, Spencer Emery, Sir Peter
Beaumont-Dark, Anthony Favell, Anthony
Bellingham, Henry Forsyth, Michael (Stirling)
Benyon, William Forth, Eric
Best, Keith Franks, Cecil
Bevan, David Gilroy Fraser, Peter (Angus East)
Brandon-Bravo, Martin Freeman, Roger
Bright, Graham Gale, Roger
Brittan, Rt Hon Leon Galley, Roy
Brown, M. (Brigg & Cl'thpes) Gardiner, George (Reigate)
Browne, John Gardner, Sir Edward (Fylde)
Burt, Alistair Garel-Jones, Tristan
Butler, Rt Hon Sir Adam Glyn, Dr Alan
Carlisle, Rt Hon M. (W'ton S) Gow, Ian
Carttiss, Michael Gower, Sir Raymond
Colvin, Michael Griffiths, Peter (Portsm'th N)
Coombs, Simon Hamilton, Neil (Tatton)
Cope, John Hampson, Dr Keith
Hanley, Jeremy Osborn, Sir John
Hargreaves, Kenneth Page, Richard (Herts SW)
Harris, David Pawsey, James
Harvey, Robert Peacock, Mrs Elizabeth
Hawkins, C. (High Peak) Portillo, Michael
Hawksley, Warren Powley, John
Hayes, J. Prentice, Rt Hon Reg
Hayward, Robert Price, Sir David
Heathcoat-Amory, David Proctor, K. Harvey
Heddle, John Raffan, Keith
Henderson, Barry Rhodes James, Robert
Hickmet, Richard Ridsdale, Sir Julian
Hicks, Robert Roe, Mrs Marion
Hind, Kenneth Rost, Peter
Hirst, Michael Rowe, Andrew
Holland, Sir Philip (Gedling) Ryder, Richard
Holt, Richard Sainsbury, Hon Timothy
Howarth, Gerald (Cannock) Sayeed, Jonathan
Howell, Ralph (Norfolk, N) Shaw, Sir Michael (Scarb')
Hunt, David (Wirral W) Shepherd, Colin (Hereford)
Hunter, Andrew Skeet, Sir Trevor
Jackson, Robert Smith, Tim (Beaconsfield)
Jenkin, Rt Hon Patrick Soames, Hon Nicholas
Jones, Gwilym (Cardiff N) Speed, Keith
Jones, Robert (Herts W) Speller, Tony
Kellett-Bowman, Mrs Elaine Spencer, Derek
King, Roger (B'ham N'field) Spicer, Michael (S Worcs)
King, Rt Hon Tom Stanbrook, Ivor
Knight, Greg (Derby N) Steen, Anthony
Knox, David Stern, Michael
Lang, Ian Stevens, Lewis (Nuneaton)
Lawler, Geoffrey Stewart, Allan (Eastwood)
Lawrence, Ivan Stewart, Andrew (Sherwood)
Lennox-Boyd, Hon Mark Taylor, John (Solihull)
Lewis, Sir Kenneth (Stamf'd) Tebbit, Rt Hon Norman
Lord, Michael Thomas, Rt Hon Peter
Macfarlane, Neil Thompson, Donald (Calder V)
MacGregor, Rt Hon John Thompson, Patrick (N'ich N)
MacKay, Andrew (Berkshire) Thorne, Neil (Ilford S)
MacKay, John (Argyll & Bute) Thornton, Malcolm
Maclean, David John Thurnham, Peter
McNair-Wilson, M. (N'bury) Townend, John (Bridlington)
Madel, David Tracey, Richard
Major, John Trotter, Neville
Malins, Humfrey Twinn, Dr Ian
Marland, Paul van Straubenzee, Sir W.
Marlow, Antony Waddington, David
Maude, Hon Francis Walden, George
Maxwell-Hyslop, Robin Walker, Bill (T'side N)
Mellor, David Wall, Sir Patrick
Merchant, Piers Waller, Gary
Meyer, Sir Anthony Wardle, C. (Bexhill)
Miscampbell, Norman Warren, Kenneth
Moate, Roger Watson, John
Montgomery, Sir Fergus Watts, John
Moore, Rt Hon John Wells, Bowen (Hertford)
Morris, M. (N'hampton S) Wheeler, John
Morrison, Hon C. (Devizes) Whitfield, John
Morrison, Hon P. (Chester) Winterton, Mrs Ann
Moynihan, Hon C. Winterton, Nicholas
Mudd, David Wolfson, Mark
Neubert, Michael Wood, Timothy
Nicholls, Patrick Yeo, Tim
Normanton, Tom
Norris, Steven Tellers for the Ayes:
Onslow, Cranley Mr. Tony Durant and
Oppenheim, Phillip Mr. Peter Lloyd.
Alton, David Bermingham, Gerald
Anderson, Donald Boyes, Roland
Archer, Rt Hon Peter Bray, Dr Jeremy
Ashdown, Paddy Brown, Gordon (D'f'mline E)
Atkinson, N. (Tottenham) Brown, Hugh D. (Provan)
Bagier, Gordon A. T. Brown, N. (N'c'tle-u-Tyne E)
Banks, Tony (Newham NW) Buchan, Norman
Barnett, Guy Caborn, Richard
Beckett, Mrs Margaret Callaghan, Jim (Heyw'd & M)
Benn, Rt Hon Tony Carl Me, Alexander (Montg'y)
Bennett, A. (Dent'n & Red'sh) Carter-Jones, Lewis
Clark, Dr David (S Shields) Leadbitter, Ted
Clarke, Thomas Lewis, Terence (Worsley)
Clay, Robert Lloyd, Tony (Stretford)
Clelland, David Gordon McKay, Allen (Penistone)
Clwyd, Mrs Ann McKelvey, William
Cocks, Rt Hon M. (Bristol S) MacKenzie, Rt Hon Gregor
Conlan, Bernard Madden, Max
Cook, Frank (Stockton North) Marek, Dr John
Cook, Robin F. (Livingston) Marshall, David (Shettleston)
Corbett, Robin Mason, Rt Hon Roy
Craigen, J. M. Maxton, John
Deakins, Eric Maynard, Miss Joan
Dewar, Donald Meadowcroft, Michael
Dixon, Donald Michie, William
Dormand, Jack Millan, Rt Hon Bruce
Douglas, Dick Morris, Rt Hon J. (Aberavon)
Dubs, Alfred Nellist, David
Duffy, A. E. P. Patchett, Terry
Dunwoody, Hon Mrs G. Penhaligon, David
Eastham, Ken Pike, Peter
Evans, John (St. Helens N) Powell, Raymond (Ogmore)
Ewing, Harry Prescott, John
Fatchett, Derek Randall, Stuart
Faulds, Andrew Richardson, Ms Jo
Fields, T. (L'pool Broad Gn) Robinson, G. (Coventry NW)
Fisher, Mark Rogers, Allan
Flannery, Martin Ross, Ernest (Dundee W)
Forrester, John Ross, Stephen (Isle of Wight)
Foster, Derek Short, Ms Clare (Ladywood)
Foulkes, George Skinner, Dennis
Garrett, W. E. Smith, C.(Isl'ton S & F'bury)
George, Bruce Snape, Peter
Gourlay, Harry Spearing, Nigel
Hamilton, W. W. (Fife Central) Stott, Roger
Hancock, Michael Thompson, J. (Wansbeck)
Hogg, N. (C'nauld & Kilsyth) Tinn, James
Holland, Stuart (Vauxhall) Wainwright, R.
Home Robertson, John Wallace, James
Howells, Geraint Wareing, Robert
Hughes, Robert (Aberdeen N) Wilson, Gordon
Hughes, Simon (Southwark) Woodall, Alec
John, Brynmor Young, David (Bolton SE)
Johnston, Sir Russell
Kennedy, Charles Tellers for the Noes:
Kirkwood, Archy Mr. James Hamilton and
Lamond, James Mr. Allen Adams.

Question accordingly agreed to.

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