HL Deb 19 November 1976 vol 377 cc1616-24

29 Page 24, line 10, leave out "they shall use their best endeavours to provide the" and insert "it shall be their duty to secure the provision of"

30 Page 24, line 12, leave out from "accommodation" to end of line 16.

31 Page 24, line 16, at end insert— (7A) Where the committee advises under subsection (3) above that the authority ought to provide suitable alternative accommodation as a matter of urgency, the authority shall provide such accommodation within three months from the date of that advice.

The Commons disagreed to these Amendments for the following Reason:

32 Because the Amendments would interfere with a housing authority's general responsibility for the allocation of housing to an unacceptable degree.

12.1 p.m.

Baroness BIRK

My Lords, I beg to move that this House doth not insist on their Amendments Nos. 29 to 31 to which the Commons have disagreed for the Reason numbered 32. This is the part of the Bill which above all others has been the focus of attention. I do not propose to lengthen our discussions unduly by rehearsing yet again the many arguments which have taken place on the subject of the rehousing duty. But it is worth while to state briefly two points which lie behind the disagreement expressed by another place and indeed expressed by the Government in this House.

The first of these is that the duty to use best endeavours does indeed place a strong and potent duty on local authorities, as the Association of District Councils has well recognised. They can do their best, as the Bill requires of them, but it would be misleading to suggest that they should be required to do better than their best, as Amendment No. 29 would have them do. Hence, we prefer to remain with the wording in the Bill as it first reached this House from another place. I think there is a very strong element of semantics in this, but on balance we really believe that "best endeavours" is a better expression than the solitary word, "duty".

My second point relates to the combined effect of Amendments Nos. 29 and 30. I suspect that even now some noble Lords may not be fully aware that Amendment No. 30 would debar local authorities from looking at their resources and from looking at other claims made on their housing in order to meet rehousing applications made under the Bill. That is absolutely essential, because it has never been the purpose of the Bill to put local authorities in the position of not being able to weigh up their other claims at the same time.

Finally, the result of the Amendments would be that any application from a farmer which met the criteria in Amend- ment No. 29 would go to the top of the housing queue, even if agricultural need was not urgent in the case in question. I cannot believe that noble Lords, who have throughout the discussions on this Bill stressed the need for defining the agricultural need, can possibly mean to support this. Elected housing authorities, in our view, must remain responsible for deciding who is to get council houses from among all their various claimants. In carrying out this task, they must look to the resources available to them. That has been said by everyone from all sides who has taken part in this debate. We believe that the duty we are proposing—and "best endeavours" is a duty—offers a fair deal to farmers, especially when compared with the present system, within this framework. We cannot agree with the contention that the framework needs to be dismantled so as to give overriding priority to applications under the Bill. My Lords, I beg to move.

Moved, That this House dot[...] not insist on the said Amendments, to which the Commons have disagreed for the Reason numbered 32.—(Baroness Birk.)

Lord MIDDLETON

My Lords, may I just say that, as regards Amendment No. 30, I entirely accept what the noble Baroness says. However, on Amendment No. 29, to say that to substitute the word "duty" for the words "best endeavours" would interfere with the housing authority's general responsibility for the allocation of housing to an unacceptable degree, seems to me to be exaggerating the position to a wholly unacceptable degree. The reason for our preference for the words, …it shall be their duty to secure the provision… was that it would then be within a legal framework. If the time comes when the duty to rehouse laid on local authorities by this Bill is challenged in the courts, then the words, "best endeavours" would be shown to have had a very uncertain legal pedigree. I remember pointing out at Committee stage that there are two conflicting judgments, each giving a different meaning to the words, "best endeavours" I will not go into the history of them now, because I did so at an earlier stage, and I am sure the noble Baroness will remember what I said.

I think we should perhaps remind ourselves that the words in the Amendment are taken from section 39 of the Land Compensation Act 1973, and the words have been interpreted in the Court of Appeal in 1974 in the Bristol Corporation case. The judgment there was that a local authority fulfil their duty completely when they do their best as soon as practicable to get other accommodation. That seems to me to be exactly the kind of duty which the Government intend to put on to local authorities under this Bill. It is not a duty that would be impossible to discharge. It is not a duty to do, in the words of the noble Baroness just now, "better than their best". It is not an absolute duty which would erode in any conceivable way the responsibility of the housing authority to an unacceptable degree. I think the Government simply have not paid any attention whatever to the legal arguments in favour of this better wording and the reasons that we have given, and which I am now giving again, for preferring the words, "best endeavours". I think the Reason given in another place is simply not acceptable.

The Earl of CAITHNESS

My Lords, I should like to say just a few words on this point because, as so many noble Lords have said, it is the nub of the Bill. Since we last discussed this, the noble Lord, Lord Peart, has very kindly written to me on this matter and I hope he will not mind if I say a word or two about it. In his letter to me he said that "best endeavours" is a stronger and more positive term than "take such steps as may be reasonable". That wording was used in the Chronically Sick and Disabled Persons Act 1970. I agree that in that Act we are not talking about houses, but the principle is the same. However, if we look at the case of Terrell v Mabie Todd, which was decided in the High Court in 1952, we find that the judge decided that "best endeavours" meant that the company involved should do what is reasonable in the circumstances.

That leaves me and, I am sure, your Lordships, too, with the thought that "best endeavours" is not strong enough, bearing in mind that the noble Baroness, Lady Birk, on 15th October said that she hoped this Bill would place on local authorities a statutory duty. Earlier in her speech this morning she has said it was "a strong duty" I think that our Amendment did what the noble Baroness wished, and I am sorry that another place did not accept it, especially as their grounds for refusing it run contrary to the Bill's intentions. A statutory duty will often interfere with a responsibility to a degree, but if it is intentional to insert that duty then surely it cannot be classed as unacceptable. Surely there is something wrong there.

Lord LEATHERLAND

My Lords, I wonder whether I might switch the scene of this argument from the law courts to the farming village street. I agree there is some semantic difference between the words, "best endeavours" and the words "it shall be their duty". If called upon to pursue their best endeavours, I think that most councils try to do their best, but let us see what could happen if the alternative form of words were used and councils were told, "It shall be your duty to provide this house". Farm workers live in rural areas and councils which administer rural areas are not, as a rule, very big builders of houses. You do not see an enormous number of council houses in farming villages and the ones which do exist are invariably occupied, and are likely to continue to be occupied until the death of the occupants because there is a stability about that kind of inhabitant. If the council is instructed that it is its duty to provide houses and it has no houses vacant on its housing list, what is it to do? Should it evict existing tenants? I think that most of us would say, No. Its alternative is to proceed to build a house in order to house a farm worker who is being evicted from his farm cottage.

How long does it take to build a council house? First, one has to procure the land, which is a lengthy process. Then one has to get the architect to prepare the plans for the house. Perhaps this is not quite so lengthy a process, but it takes time. Then one has to solicit tenders for the building of the house and if it is for the building of an isolated, single house not many tenders may come in. Assuming that one obtains a satisfactory tender and that the builder is not trying to bleed the council by quoting an excessive sum, then one has to get down to digging the foundations, laying the bricks and mortar, putting the slates upon the roof, and so on. Perhaps 18 months will have elapsed between the threatened eviction of the farm worker and the availability of a house for him to occupy. What will have happened during those 18 months? I suppose that the chap will have emigrated to Australia. Although it sounds very well, the word "duty" is not a practical proposition.

Lord SHINWELL

My Lords, I want to support what my noble friend Lord Leatherland has just said. I have observed in the course of our debates, not only on this subject but on a variety of subjects including shipbuilding—I need not mention them all because Members of your Lordships' House are only too familiar with them by now—that the Opposition have not demanded the insertion of a definite term. There has been flexibility about their approach. There can be no question that "duty" imposes an obligation or a responsibility from which there is no escape. Throughout the course of our debates the Opposition have been demanding flexibility. I am satisfied that if Members of your Lordships' House care to study Hansard over the past few weeks they will find the term "flexibility" emerging from the mouths of Opposition members and that it has been more frequently used than any other term. Now that it comes down to brass tacks they say, "Oh, no, we do not want flexibility". The Opposition are now asking for inflexibility. Why is not a little more consistency shown by members of the Opposition?

Lord MONK BRETTON

My Lords, I think differently. I believe that the Government would have done better to have accepted Amendments Nos. 29, 30 and 31, or something very close to them, as well as having, as we shall see presently, relented somewhat—I am not quite sure of the precise terms in which they have relented—on Amendment No. 45 regarding temporary accommodation. I believe that this Amendment ought to work in a situation where there are urgent cases relating to livestock. I am glad that now that we have reached this point we can speak about livestock, as livestock is back in the Bill. It is in relation to those urgent cases that I do not believe that "best endeavours" may prove enough. When one has to take into account competing claims I do not believe that "best endeavours" is sufficient, and I do not know how this term is going to be interpreted by local authorities. I believe that the result will be a patchwork. The one thing, however, which I do know is the devastating effect on the industry, which cannot be emphasised too much and too often, where livestock which is in need of constant attendance is involved.

12.16 p.m.

Lord SANDYS

My Lords, the noble Lord, Lord Shinwell, complains of our use of the word, "flexible" and suggests that we are being inflexible in this Amendment. If the noble Lord would address himself to the Bristol Corporation case which was quoted in Committee by my noble friend Lord Middleton and I, he would see that the situatior allows a degree of flexibility. We went in great detail into the Bristol Corporation case and I believe that the quotation in Committee of that case and, indeed, other cases dealing with the use of "best endeavours" was very important, I quoted a commercial case—I think in the year 1876— where "best endeavours" was used over a beerhouse dispute and the phrase was found not to be entirely satisfactory. It is a phrase which gives rise to some vagueness, whereas the phrase in the Amendment, which is drawn from the Land Compensation Act 1973, is one which has had a very clear meaning before the courts in recent years.

The intention of the Government, which they have pursued through another place, to retain the words "best endeavours" in the Bill will give rise to great complication in the courts and I warn the Government of the consequences of their action. Indeed, all my noble friends have warned the Government of the consequences of this particular action. I believe that a number of problems will arise here of which the Government are at present totally ignorant.

I should like to make one final point regarding the question of the guillotine. Your Lordships will remember that on Report in another place the guillotine operated prior to discussion of Clause 30. Owing to the strenuous efforts of my right honourable friends in another place it was possible to bring forward Clause 30 for earlier discussion. No fewer than 40 minutes of the six hours available in another place were devoted to addressing themselves to Clause 30, to which we shall come in a later Amendment. I believe that the Government are misguided not to accept our Amendment. Considerable ingenuity has been displayed both here and in another place in order to find a form of words which allows just that degree of flexibility which would, in the circumstances, be desirable.

The Earl of ONSLOW

My Lords, perhaps I could make one or two small points. Taken together with Amendment No. 45, "best endeavours" possibly is not a total disaster. If we take "best endeavours" together with subsection (9) of the same clause, it means that the authority shall be obliged to provide suitable alternative accommodation. Therefore we could say that "best endeavours" means "obliged". That is my first point. My second point, which is, practically speaking, the most important one raised so far, was made by the noble Lord, Lord Monk Bretton, when he referred to the patchwork effect. When the noble Lord, Lord Peart, was speaking to the first Amendment, he quoted a letter and said that Suffolk County Council would have no difficulty. May I ask the noble Lord whether I am wrong?

Lord PEART

My Lords, I said the National Farmers' Union at the county [...]evel, but it was actually the local authorities under the county.

The Earl of ONSLOW

I stand corrected, my Lords. I have spoken to our local authority—admittedly unofficially and only to one member of it, and he was under the impression that they would regard it as a duty. These local authorities will not be worried about the term "best endeavours": it is the patchwork effect, the effect of local authorities who will not do as well as the others, because if there is immobility, if there is sticking, then it really will be disastrous. If, however, the best endeavours are good enough all over the country and they really are best endeavours, it could be interpreted that this is an improvement on the present lengthy and boring method of changing houses. If it is not—and this is the absolute linchpin—if the local authorities cannot re-house, then even the grubby present arrangements would be a vast improvement.

My Lords, I think we can but wait and see and cross our fingers—and heaven knows what else! If my interpretation of "the best endeavours", taken together with Clause 9 "shall be obliged", means something slightly stronger than the Government are saying it means, then perhaps the Government wording is not quite so bad as all that.

Baroness BIRK

My Lords, the noble Earl, Lord Onslow, seems to have understood very well the point here and what we are trying to do. He is perfectly correct when he refers to Clause 30(9). I would also draw the attention of noble Lords to the sidenote of the clause which says, "The duty of the housing authority concerned". My noble friend Lord Shinwell is absolutely correct when he refers to the need for flexibility. Incidentally, in answer to the noble Earl, Lord Caithness, if I said "a strong duty" I think it is because I have now taken it so for granted at this stage of the Bill that we know that it is a statutory duty; but perhaps to be quite correct I should say a "strong statutory duty", and this is what "best endeavours" is. The noble Lord, Lord Middleton, seems to think that Clause 29 would not have the effect that I cited at first if these Amendments were accepted. In fact with great respect he is not correct about that because the effect of these Amendments would be to take out the urgency of the case; they would take out the competing claims and they would also take out the resources at their disposal. This is difficult and we have spent a great deal of time on it.

On the point made by the noble Lord, Lord Monk Bretton, which was taken up by the noble Earl, Lord Onslow, on the patchwork effect, I can only say that circumstances differ in different local authority areas, and really all I can do is to end on the note on which the noble Earl, Lord Onslow, ended—let us for goodness sake give it a chance. In our view this is the strongest form of duty one can put on a local authority without putting it completely into chains from which it could not break out.

On Question, Motion agreed to.