DAMAGES FOR UNLAWFUL EVICTION (Hansard, 26 October 1988)

§ Lord James Douglas-Hamilton
I beg to move, That this House doth agree with the Lords in the said amendment.

§ Mr. Deputy Speaker
With this, it will be convenient to take Lords amendments Nos. 24, 25 and 26, and amendment (a).

§ Lord James Douglas-Hamilton
These amendments all relate to the new right to damages that clause 33 gives to an illegally evicted tenant. As I believe all right hon. and hon. Members agree, the increased protection and 365 compensation for harassed and illegally evicted tenants that the Bill introduces are an important element in our reform of the private rented sector.
Amendment No. 24 removes from clause 33(2) the need for an illegally evicted tenant to prove that his former landlord intended to force him to leave. Proof of intention has always been difficult to achieve. In clause 35, dealing with the new offence of harassment, the test is already that the landlord must only have known or have had reasonable cause to believe that his actions would make his tenant leave. Therefore, amendment No. 24 brings the provisions of clause 33 into line. Because the offence leading to a liability to damages is changed, it is necessary to change also the date from which liability can arise to that when the changes were first introduced to Parliament. That is what amendment No. 23 achieves.
Amendments Nos. 25 and 26 are different and in effect give an additional defence to a landlord who faces a claim for damages under clause 33.
Clause 33(7) provides that in proceedings to enforce a liability, a landlord may defend his actions by proving that he believed or had reasonable cause to believe that when they took place, the occupier no longer stayed in the house. Amendments Nos. 25 and 26 provide a similar defence if the liability arises because of the withholding or withdrawing of services. In such circumstances, the landlord will have a defence if he can show that he had reasonable grounds to withdraw or withhold the services. That might apply, for example, if the landlord was genuinely of the opinion that the tenant had left the house to work elsewhere for a period, or that he had made alternative arrangements to receive the services in question. I believe that these amendments improve the new right to damages in clause 33.

§ Mr. Home Robertson
I doubt if it will give that much comfort to someone who is being evicted with his family from his home to think that he will have the option over the next six months or one year of trying to fight his case in the courts, in order to win damages for that eviction. The fact is that the family concerned will be out in the street trying to find accommodation of some kind. The whole concept of damages for unlawful eviction is bizarre.
The entire Bill is designed to make it as easy as possible for private landlords to evict people lawfully, so it will be a very careless landlord who, under the new legislation, will carry out such action illegally. I suspect that the concept of illegal eviction could become redundant. However, the principle of imposing penalties for harassment is certainly worth developing, and we accept it as far as it goes. The rest of the legislation is so flawed that this fig leaf cannot do much to conceal the problems.
I refer briefly to the specific impact of amendment No. 25, which refers to harassment in the form of withdrawal of services. I presume that that means electricity, water, drainage, and other services of that nature.
The amendment will establish a ground for defence if the landlord had reasonable grounds for withdrawing those services from the tenant. It could be construed that it is reasonable, for example, to cut off the electricity supply if the landlord is in dispute with the electricity board or if the cable or other equipment has failed. The tenant may have nothing to do with the problem between the landlord and the electricity board. Amendment (a) would restrict that ground to cases where the tenant was at 366 fault and where he had been given an opportunity to remedy that. I foresee genuine problems and I invite the Minister seriously to consider amendment (a).

§ Mr. Doran
Clause 33 will be improved by the addition of Lords amendment No. 24. I know from experience that there is a major problem in encouraging procurators fiscal to take action against landlords. I hope that the amendment will be a genuine improvement, but we shall have to wait to experience it in practice. However, although it improves the civil position of tenants by giving them the right to raise actions for damages, I hope that the Minister understands that the procurators fiscal need to be encouraged. No greater proof could be necessary before the civil courts than a successful prosecution of a landlord in the criminal courts for harassment. I hope that the Government will find some way to encourage procurators fiscal seriously to consider such cases, as I know from experience the difficulty of persuading the police and the procurators fiscal to take them up.
I am interested in the scope of clause 33 as expanded by the amendment. A case that has been worrying me for some time involves the tenant of a private landlord who agreed to move while the house was modernised and improved with the aid of public grants. She has been refused the right to return to her home, and in my experience that is not uncommon. Will the new legislation give my constituent the right to raise an action for civil damages against the landlord? The legal advice that she has been given so far is that her only entitlement would be to removal costs, because they would be the extent of loss that could be established.
That is unsatisfactory. Will an amended clause 33 improve my constituent's position?

§ Lord James Douglas-Hamilton
The hon. Gentleman fairly said that we would have to experience the provision in practice. That is true of all legislation. His reference to procurators fiscal is a matter for the Lord Advocate—

§ Mr. Doran
I understand that the Minister has responsibility for law and order, so perhaps he could reply to my question.

§ Lord James Douglas-Hamilton
It is a matter for which the Lord Advocate has responsibility, but I shall ensure that the hon. Gentleman's points are put before him. I am sure that once the provisions are enshrined in legislation they will be taken seriously—

§ Mr. Home Robertson
Who by?

§ Lord James Douglas-Hamilton
Obviously, they will be taken seriously by those who uphold the law—for example, the police and law-abiding citizens such as the hon. Gentleman.
I should be grateful if the hon. Member for Aberdeen, South (Mr. Doran) would give me the details of the case of his constituent to which he referred so that I can investigate and come back to him on it.
The Bill very significantly improves the protection available to a tenant against a landlord who seeks to operate outwith the law. The new provisions on improved protection against illegal eviction and the new right of a tenant to compensation have been widely welcomed.
The provisions give a landlord specific defences that he can seek to employ to justify his actions, but they involve persuasion of the sheriff. I believe that to be fair and just.
367 The hon. Member for East Lothian (Mr. Home Robertson) has argued for the new defence to be qualified. I am afraid that his proposal would, in practice, add nothing to the effect of Lords amendment No. 26, and might in certain circumstances be detrimental.
Any landlord who sought to invoke the new defence would need to persuade the sheriff that he had reasonable grounds to withdraw or withhold the services. If appropriate, the sheriff would no doubt take into account any steps the landlord had taken to discuss the matter with his tenant, to offer alternatives, or to come to some other mutually acceptable arrangement.
I am sure that the hon. Gentleman can be confident that the defence as set out in Lords amendment No. 26 is not too loosely drawn, and in the light of my explanation I hope that he will not pursue his amendment.