HL Deb 16 July 1980 vol 411 cc1807-60

4.22 p.m.

The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, that the House do now again resolve itself into Committee.—(The Earl of Mansfield.)

On Question, Motion agreed to.

House in Committee accordingly.

The LORD ABERDARE in the Chair.]

Lord ROSS of MARNOCK moved Amendment No. 62: After Clause 6, insert the following new clause:

("Rural areas: disposal of dwelling-houses

.—(1) Notwithstanding section 4 of this Act, where a dwelling-house purchased by exercise of a right under Part I of this Act is situated in an area designated by order of the Secretary of State as a rural area, the landlord may impose a limitation on the freedom of the purchaser to dispose of the dwelling-house in the manner specified below.

(2) The limitation is, subject to subsection (4), that, until such time (if any) as may be notified in writing to the landlord there will be no disposal without the written consent of the landlord: but that consent shall not be withheld if the disposal is to a person satisfying the condition stated in subsection (3) below.

(3) The condition is that the person to whom the disposal is made (or, if it is made to more than one person, at least one of them) has, throughout the period of three years immediately preceding the application for consent, either—

  1. (a) had his place of work, in the rural area; or
  2. (b) had his only or principal home in such an area.

(4) If the Secretary of State consents, the limitation specified in subsection (2) above may be replaced by the following limitation, that is to say, that until the end of the period of ten years beginning with the purchase of the dwelling-house there will be no disposal unless—

  1. (a) the purchaser has offered to reconvey the dwelling-house to the landlord for a consideration equal to the amount agreed between the parties or determined by the district valuer as being the amount which is to be taken as the value of the dwelling-house at the time the offer is made (subject to the recovery of discount on early re-sale under section 6 of this Act); and
  2. (b) the landlord has refused the offer or has failed to accept it within one month after it was made.

(5) Nothing in this section shall prevent a court from making an order transferring the dwelling-house or part thereof to the spouse of the purchaser, or a successor from inheriting the title to the dwelling-house.").

The noble Lord said: I beg to move Amendment No. 62, which is a new clause dealing with the problem of the rural areas and the disposal of dwelling-houses therein. Reference has been made more than once to the manifesto commitment of the present Government at the last election and how deeply they feel about carrying that out. It was to give a right in respect of the purchase of local authority houses to the tenants, but they did admit that there were special difficulties in the rural areas and that they would deal with them. There is no doubt at all that when the Bill was published it received a very dusty reception from rural area councils in Scotland: from Skye, Lochalsh, from Perth and Kinross; from Shetland, from Tweeddale, from Kincardine and Deeside; from East Lothian, Nairn District Council—they all wanted to be exempted in respect of the rural areas, and the Western Isles and Roxburgh expressed their concern about the possibility of council housing being used for second homes and for holiday homes.

There is no doubt at all that when people think of local authority housing they tend to think of forests of multistorey flats and of great sprawling schemes, with all their problems, on the edges of towns and cities. But the pattern of local housing in respect of the rural areas is a very different matter. In small villages there are pockets of 20 houses, or it may well be only six. It may be an area without a village at all but with about 10 houses, where the purchase of houses for owner-occupation is not something that can be achieved by the younger inhabitants there who are seeking a home. Wages tend not to be as high and I think we must face that fact.

There was a report from the Scottish Office on rural housing which said that many people are not able to command incomes sufficient to meet their basic housing needs in the private sector, and that reliance on the local authority as a major force in adequate housing provision will continue and probably increase. If we are going to make it more difficult for the local authorities by virtue of the sale of existing lettable houses, certainly they will remain as houses, certainly the tenants will remain in them, but on resale, what will happen? That is the point about which we are concerned in this amendment. We are not denying the right for the existing tenant to purchase his house but we are saying that when he comes to the point of reselling it, certain things should apply.

I think it is a fairly reasonable amendment, wonderfully drafted; it ought to be impeccable. I did not draft it; it was drafted by the Department of the Environment and your Lordships will be familiar with it because it was the protection offered to the rural areas in England.

The problems are the same. The suggestion was made in another place that the problem of holiday homes was not so bad in Scotland. I do not entirely agree with that, but the problem is not one of holiday homes; it is the one that was pinpointed by the Scottish Office itself saying that there is need and there will be even greater reliance in the future on local authorities to provide houses to let for people who want to stay and to work in the rural areas, while, if these houses are resold after the first time, they may certainly pass out of the control of the local authority but there is no saying who will come in.

I read the report of the debate in another place and I was impressed by the speeches that were made by Members from the Highlands and from the Borders, and I think it was the leader of the Liberal Party who pointed out that in his village the number of local authority houses is four: two are sold and there are only two left. The chance for a young couple getting married and wanting to get one of these houses if it becomes available, is nil. So what happens? The young people leave the villages and go into the towns and not just to the neighbouring small towns or villages that they know. They swell the populations in London, Glasgow, Edinburgh, Aberdeen, Inverness, and we get this depressing concentration of problems in the cities and depopulation in the rural areas. We must guard against this.

At the Committee stage in another place the junior Minister thought he had found a solution. The solution is this: he will not do anything just now but he will watch the situation and if in a designated rural area a third of the houses are sold and then re-sold he will look at the position and if an unspecified number of them are for holiday homes, then he might act. That is the protection that is offered in Scotland. Since that was passed at the Committee stage of course there has been no alleviation of the fears of the rural local authorities. Just imagine it. Somebody suggested that it was closing the stable door after the horse had bolted. It is thinking about closing the stable door after about a third of the horses have bolted. In other words, the crisis is already reached; then the Secretary of State thinks he will look at the position, and then only if so many of them are holiday homes—we do not know the number—he will act. But if you go to the Border rural areas, if you go to an area outside Glasgow, outside Stirling, outside Inverness, you find that many people with the means to do it are moving out into the country. Some of these houses are an attractive proposition. I am perfectly sure many noble Lords will appreciate the quality of many of these houses, and their beauty. So there is that possibility of attack there, not for holiday homes but for places where people would live and commute into the towns. We have got the same thing in relation to the pressure in the village itself, people going for owner-occupation buying specially built houses. This is the thing that drives up the price and enhances the pressure upon the local authority lettable houses.

We really must do something about this. What I am suggesting here is the least we can do. It is not attacking the principle; we are saying yes, the sitting tenant has the same right as anybody else to purchase the house, but when it comes to resale of the house then an option must be given to the local authority if certain conditions are abided by. What are those conditions? That the person to whom he sells has, throughout the period of three years immediately preceding the application for consent, either had his place of work in the rural area or had his only or principal home in such an area". If the Secretary of State consents—and the Secretary of State is in here all the time—that particular subsection (2) can be replaced and set aside if the seller has already offered the house to the local authority and they have turned it down at some previous time. This is an option not starting at the time of sale but on resale.

Bearing in mind the fears of the local authorities, they would be concerned to get on with the building of more houses, which is one of the solutions to the problem, but in the present situation they just cannot do it and the Secretary of State will not allow them to do it. We have been hearing time and time again the things that the Government are doing to cut down capital expenditure, and one of the things that the cuts have already affected is new house building. I instance the fact that was brought out in Com- mittee by the Member for Inverness, Mr. Russell Johnston. Inverness wanted to build about 308,000 and they are not being allowed to build half of that. So the pressure builds up.

There is another point to be appreciated here. Although this protection is given in England and not in Scotland, there are those who would argue that they need it less in England, for the simple reason that the vexed problem of the tied house, which has concerned people in the farming industry for a long time, has been solved in England by a Bill which virtually ties up that where a worker has to leave a tied house the local authority will provide a local authority house. That is not so in Scotland; there is no protection for anyone in a tied house in a rural area in Scotland. It was always felt it was unnecessary, both by the farmers, which is not surprising, and also, which is surprising, by the union representing the farm workers. Personally, as Secretary of State I never had any problem about this. People know that the local authorities in Scotland have been accommodating in these circumstances.

However, the circumstances are now changing. If a local authority house is given to a farmworker, he then is in a position to sell the house with the same freedoms as anybody else. There may be a reluctance on the part of the local authority to be as generous as they are without any statutory duty to do it. So there is even more pressure in Scotland and less protection in respect of the rural population than in England. What I and my colleagues are proposing is that we would adopt this new clause, which gives exactly the same protection in Scotland as is available in England; it will help at least to give some protection to stabilise the position and not worsen the position of those wanting to live in their own countryside. I beg to move.

4.37 p.m.

Viscount THURSO

This is an important and interesting new clause, one which would bring the Tenants' Rights, Etc. (Scotland) Bill more into line with the Housing Bill which covers the same problems in England and Wales. It would also help to deal with this problem, which has been referred to again and again in debate in your Lordships' House and in this Committee, the problem of rural areas. This is a very real problem and one which cannot be ducked and must not be ducked, and we have tried at earlier stages of this Committee to deal with it. I think here possibly we have a proposal which could deal with the whole problem of safeguarding the supply of houses in rural areas in one amendment. Therefore, from these Benches we support this amendment.

I would offer one word of criticism of it and that is that the definition of a rural area is left entirely open to the Secretary of State. I would have preferred to see a "rural area" defined, so that it is not then the plaything of any changing Government, and so that people in rural areas know what is meant by the term. But perhaps that could be done at a later stage, at Report stage perhaps by tightening the definition. The fact that I do not feel that the term "rural area" has been sufficiently tightly defined does not in any sense, in my view, invalidate this amendment. This new clause is a valuable one which I think merits the support of this Committee, and which would improve the Bill considerably in its passage through your Lordships' House. I would, therefore, support it.


This amendment, which has been imported by the noble Lord from England, will, I suggest, not have the felicitous results for which he no doubt hopes. As the noble Lord said, it is in fact modelled on the provision in the Housing Bill relating to rural areas. It would restrict purchases of council houses in rural areas designated by the Secretary of State in one of the following ways: firstly, by restricting resale to purchasers who have lived or worked in the area for the past three years, unless the local authority agrees otherwise; secondly, if the Secretary of State gives permission by the imposition of a preemption condition. I say at once that the way in which this amendment came to be written into the English Bill was to satisfy a set of conditions which simply does not obtain in Scotland. It is in any event unacceptable. I and the Government have made it clear on numerous occasions as regards this Bill that we do not consider that the widespread use of pre-emption conditions is justified. Indeed, we think that the conditions in which a pre-emption clause may be written in should arise on the rarest of occasions. One of those occasions, or one set of circumstances is, of course, contained in Clause 4(7).

So far as time is concerned, we perhaps slightly over-indulged ourselves in some of our consideration of earlier amendments and so we galloped through Clause 4 without subjecting it to the rigorous scrutiny which the noble Viscount, Lord Thurso, for one, promised to give it. However, I do not complain of that. But the fact of the matter is that if this amendment were agreed to we would have two different and differing provisions as part of the same Act.

I return to the pre-emption clauses. If at this stage I put the Government's case rather more fully than I have for a number of other amendments, it is, first, because the Government appreciate and attach a great deal of importance to the problem, and it is, secondly, to show the Committee that a great deal of time and effort has already been spent on the problem. In the result we think that we have at least for the moment got it about right and it is precisely because we want the situation to be flexible that, as the noble Lord has already pointed out, the safeguard in Clause 4(7) can be triggered if the situation warrants it.

In regard to the pre-emption clauses, it would be a form of restriction which would differentiate the council house purchaser from other owner-occupiers, and would mean that where he sold his house within five years he would be subject to the dual obligation to repay a proportion of the discount and to offer the house back to his former landlord at the district valuer's estimate of market value. That would place him in a different and disadvantaged position as regards other purchasers and might very well discourage building societies from lending on houses subject to such restrictions. Consequently there would be a reduction in the benefit to public expenditure from such sales as well as the inherent unfairness of preemption conditions to the purchasing tenant.

He must accept an estimate of market value which, with the best will in the world on the part of the district valuer, is bound to be an average of actual market values at best, and may, at worst, be an underestimate because there may well be insufficient evidence of sales of former council houses of a particular type in a particular area for the district valuer to have an absolutely reliable basis for judging the true market value. It is mainly for those reasons that we are opposed in principle to the extensive use of pre-emption conditions.

There is another consideration. We must ask ourselves how pre-emption conditions would be used. I do not think that anyone would argue that buying houses at market value is likely to be the most economical way of making provision for housing needs—and I stress "at market value" If it were the most economical way, there is no obstacle to local authorities doing so at the moment instead of building houses, and there is little indication from their current practice that they consider it wise. However, any derogation of the principle would give local authorities who do not wish to go along with this scheme an excuse not to sell, however imprudent it might be. In fact, there are no doubt some Labour controlled authorities which have taken an irrational view of council house sales, and they would no doubt go to any lengths—however imprudent it may be—to claw back the rights. So, we do not think that it is right to leave the door open to that sort of doctrinaire action.

There is really no real difference between rural areas and urban areas when it comes to the argument that selling council houses harms the interests of those wishing to rent. I have said it before and I make no apology for saying it again: in rural areas more than others, tenants and their families are likely to stay put in their houses for a long time, whether they rent or buy. So not selling houses would not make them available for other people to rent. Meeting housing needs whether in rural or urban areas is a quite separate matter. From what I have said it will be seen to be the Government's contention that it is wrong to say that, by fettering the right of tenants to buy their houses in rural areas, in some way the housing stock in a rural area will either he improved or even maintained.

As the noble Lord has said, the reason the amendment—which he has now espoused—was tabled to the Housing Bill concerned the problem of second homes. We looked with particular care at anxieties which were expressed that council houses would be resold as second homes. I accept that in some cases, at any rate, these anxieties are genuine. But on the evidence so far available to me I have not concluded—in fact, I cannot conclude—that the scale of this problem is such as to justify special provisions. An independent report specifically dealing with second homes in Scotland, prepared three years ago, found that in the four years prior to the report the total number of second homes in Scotland had remained static and in the great majority of cases where existing houses had been bought as second homes they were for one reason or another unsuitable for regular occupation at the time when they were bought. Against that background the idea that former council houses will be bought as second homes on any significant scale does not appear very probable. I do not pretend that there will never be a case anywhere in Scotland where a former council house is resold as a second home. But hard cases make bad law, and we are reluctant to put automatic restrictions on large numbers of tenants who buy their houses in rural areas for the sake of the occasional case.

This matter was debated extensively in another place, as the noble Lord, Lord Ross of Marnock, has reminded us. I raise this matter not in any way to claim that your Lordships should not give the matter anxious consideration. However, I do point out that the Government have already listened to views expressed both by the Opposition and more especially the views of their supporters who represent the majority of rural areas in Scotland. At the end of the day the Government accepted a safeguard proposed by a Member representing a large rural constituency, and that is now embodied in Clause 4(7), which will ensure that any authority which is faced with a second homes problem stemming from the sale of council houses is able to deal with the situation. So the reason why this Bill and the Housing Bill—which relates to England and Wales—differ quite sharply in their treatment of these restrictions is that the conditions are different. There are districts in England and Wales where the growth of second homes is a signi- ficant and widespread problem, but the evidence as regards Scotland suggests that that is not the case with us.

The noble Viscount, Lord Thurso, raised the matter of the designation of a rural area. He will see from the subsection that it is dealt with quite neatly in an amendment which was put into the Bill in the other place. Therefore, I have come full circle to what I said at the beginning. If this amendment were accepted we would have two differing but parallel measures on the statute book. One has been specially designed and adapted for Scottish consideration and for dealing with a Scottish problem should it arise; the other has been drafted in England and is designed to help the English out of a problem which they know already exists. I know which I would choose and therefore, in the circumstances, if it comes to the point, I should ask the Committee to reject the noble Lord's amendment.

4.51 p.m.

The Earl of PERTH

I am a little unhappy at the noble Earl's reply to the suggestion made in the amendment of the noble Lord, Lord Ross of Marnock. He seemed to be arguing in some respect that this has been greatly discussed in another place, and therefore there is nothing for us to do about it.


I specifically said absolutely the opposite. I said that this had been debated extensively in another place. I specifically said that this in no way stops your Lordships from giving the whole matter anxious consideration, but that it did show that a great deal of time and thought had already been devoted to the problem.


Perhaps I may intervene on this point. It is the fact that during the Committee stage the discussion on rural housing lasted half an hour.

The Earl of PERTH

All the same, despite what the noble Earl has said, it is important that we are free to consider these matters, and not that because some discussion has taken place in another place, therefore we must be guided by it.

One of the main arguments used concerned the problem of the right of preemption. As I understand it, if there were to be such a right of pre-emption, at that moment the district valuer who is assessing the value of the house—and perhaps the noble Lord, Lord Ross, will tell me that I am wrong on this—will perhaps set a different initial price for the purchase. If that is the case—and I should have thought that it would be—such a right of pre-emption would not be very onerous for the person who bought, because he would buy the house on more favourable terms than he would otherwise have done.

The other matter that has occurred to me is this. The noble Earl said that it would perhaps be very difficult for the district valuer to set a price in the event of a resale because he may not know about the area and there may not be much to go on. But as I understand it, he has already had to do this task once in the original sale to the original person involved. If he has been able to do it once and has had the guidance of that transaction, surely at a later date the task would not be all that difficult. Therefore, I ask the noble Earl to think very seriously about the merit of this amendment.

He has said that the difficulty will be that it will, in a sense, be in conflict with a subsection which has already been passed in Clause 4. That may be so. If it is the case, it would be sufficient if at this stage the noble Earl were to say that he would consider this clause very seriously so that at the Report stage we would be in a position—if he gave us an indication that he would accept such an amendment —to amend the existing clause which is already in conflict with it.


I think that the Committee will be very impressed by the amount of time that the Government, Ministers and their advisers have spent with wet towels round their heads considering practically every point that has been raised in opposition to the Bill. However, because the Government have spent a great deal of time does not mean that they have necessarily arrived at the right answer. We are entitled to query it and to raise it again and, indeed, to do our own wet towel-thinking about these matters.

But the fact is that this amendment has our support. It might well not have had our support if the Government had not listened previously to our plea that there should be some cases where the local authority, with the approval of the Secretary of State, should know best. I said yesterday, and I repeat, that every one of us knows of cases where the selling off of two or three houses to a non-useful person in a rural area would deprive that area of essential people, such as rabbit trappers, which is a very essential occupation. If such people cannot get a house because it has been sold as a holiday home, it means that the whole district suffers.

I do not know why the noble Earl should say that the holiday home problem will not arise in Scotland. I thought that with a Conservative Government we would have reached a stage of prosperity equal to that in England and Wales, where more people would have second homes in Scotland. The problem is growing. I think that the noble Earl said that that report was produced four years ago. Certainly there is a demand in our area, and in other areas which I know, for houses as holiday homes. I think that this is a reasonable solution to a very real problem, failing any local latitude being given to the local authorities.


I should like to make the point to my noble friend Lord Mansfield that I am not against the sale of council houses in Scotland to the right individuals. I understand that my noble friend quoted figures about the demand for holiday homes which were four years old. I cannot speak for the rest of Scotland, but my experience in the Western Highlands and in the particular part of Scotland in which I am interested is that the tourist demand for holiday homes has grown exceedingly in the last four years. In the area with which I am conversant we do not have a great number of council houses, but the local authorities are building more, and I am rather frightened that quite a number of them might end up as holiday homes.

4.57 p.m.


One of the points which I wanted to raise earlier in reply to the noble Earl's difficulties has already been made by the noble Earl who has spoken from the Cross-Benches. It seemed to me that he was really in sympathy with this new clause. The only problem which confronts him is whether or not there is a remedy. As has already been pointed out, all he has to do is to amend or delete Clause 4, which seems to knock the whole Bill out of joint. Surely no great problem is presented to the Committee or to the Minister if he feels that that is the only reason—and it seems to me that it is one of the main reasons—why he is objecting to it.

If that is not the only reason, why is he objecting to this new clause? Is it because it may be difficult for the sitting owner to find a ready buyer for his home in a rural area who qualifies under the conditions contained in the new clause? I doubt very much whether that will ever come to pass. There must be many people who travel well outside a rural area, from the town or city, to work in that area. Therefore, in my opinion there will be any number of applicants who would be ready to buy any house that might be offered for sale in a rural area and the applicant or potential buyer would readily qualify for it. On the other hand, if there was a possibility that that would create great difficulties for the sitting owner selling his house, possibly the Minister might have some real, solid ground for objecting to the inclusion of this particular clause. However, the Government did not think so in the English Bill.

I think that this is an even stronger case for the whole business of selling houses in rural areas to be excluded from the Bill; because, even though the Minister says that there might not be a major problem, it is a major problem because we admit that the number of houses involved throughout the whole of Scotland is minimal. Nevertheless, a situation may arise when someone has been travelling, summer and winter, from an area six or 10 miles away, and a house may become available. Surely he should be given some kind of preferential treatment and consideration when such a house is being sold in the area to which he has been travelling and in which he has been working for so many years. I hope that the Minister will address his thoughts between now and Report stage to how he can deal with the one clause that is causing him some considerable trouble, namely, Clause 4.

5 p.m.


I have never had such a lack of confidence in my own powers of advocacy as I have over this. It would be so easy for me to say to the Committee, "Yes, of course I will go away and think about it", but I hope that I can persuade at least the majority of your Lordships that there really is not any need to do so because all the safeguards that noble Lords want are already written in.

May I first take the Committee back to Clause 4? The noble Lord, Lord Mackie, takes me to task in effect for not adopting this amendment which he says gives a much better and more defined role to the local authorities. If we just examine these subsections together perhaps I can convince the noble Lord that in fact the local authorities have a role to play. Clause 4(6) provides that pre-emption conditions may be imposed on houses in an area designated a rural area by the islands or district council within whose area it is situated", provided that the Secretary of State makes an order by statutory instrument confirming the designation.

There we have the power to the local authority which says to itself, "There is a danger cropping up here,"in effect to go to the Secretary of State and say, "Will you make an order under subsection (6) which will trigger off the next subsection, subsection (7)?"It seems to me that that is a reasonably satisfactory way of the locals giving vent to their, as they will think, justifiable grievances or anxieties, and the Secretary of State doing something about it.


I am grateful for the explanation. The reason that I might have mentioned that I did not think this was sufficient is that it stipulates that the order may be made provided that within the said rural area more than one-third of the number of dwelling-houses have been sold.


The noble Lord is so quick to the point. He has gone rushing on to the next subsection. I have not got there yet. I am just coming to it. Subsection (7) limits the Secretary of State's power to make an order under subsection (6), confirming the designation of a rural area by providing that it shall not be exercised unless a third of the houses which the landlord owned in that area at the date of the commencement have been sold. In other words, a third of the stock has gone. Somebody has to make a judgment about this, and I suggest to the Committee that a third is about right; about right to say, "We are now anxious".

The Secretary of State has to be satisfied that an unreasonable proportion of the houses sold have subsequently been resold and are not being used as the only, or principal, home. This is where the second home point comes in that my noble friend was talking about. You get, therefore, what I should like to call a triple safeguard. The locals are worried; the conditions are satisfied; the third of the stock has gone not to principal homes but to second homes (or "unprincipled" homes, if I may so call them), and then you get the preemption clause coming in.

It is fair to say that that preemption clause is to an extent derogated by subsection (8), but I do not think that that really concerns us for this debate. If the second homes menace, if I may so call it, gets worse, here is the protection written into the Bill. I do not dispute—and my noble friend Lord Massereene produced this point—that there may well be a demand for second homes in certain areas of Scotland. There is already. The point I wish to make is that people who want second homes do not normally want the fully operational council house type of homes, do they? What they like to do is to buy a run down cottage and do it up and make it into what could be called a "bijou abode", and not very many council houses quite fit into that category. One has to be aware of the dangers, but what I am trying to say is that I hope the Committee will agree that the Government have taken them into account.

If one then finally takes into account that the houses will be sold in the first place only to sitting tenants—and I must repeat that—the people who will be the sitting tenants, particularly in the rural areas, are unlikely to move from their homes for a great many years. The noble Lord, Lord Mackie, and I, living at each end of the raspberry belt as we do, know that people do not move much.

Therefore, I repeat, as I have done so often, that I do not think that the housing stock in the normal course of events is going to be adversely affected by the provisions in this Bill.

I said at the beginning that my powers of advocacy today seem to be sadly lacking. I have at least tried to get over to your Lordships that the Government really think that we have gone a long way towards the road of providing an adequate and proper safeguard in Clause 4(7), and that if this amendment, or something like it, were agreed to, it could not make the positon better and it most assuredly would make it worse.

Viscount THURSO

It seems to me that Clause 4(7) is shutting the stable door after the horse has gone. It says: within the said rural area more than one-third of the number of dwelling-houses of which the council concerned is the landlord at the date of commencement of this part of this Act have been sold". If more than one-third out of three houses have been sold, that means that two have gone, so there is only one left.


That is one of the troubles about this matter. There has not been a proper appreciation of the pattern of local authority housing in the rural areas. I do not want to repeat what I have already said. We all know for ourselves that there may be three or four houses, perhaps five or six, some of them built by a local authority and entirely specified. I remember the time when we built them for farm workers—not just for people who worked in the rural areas, but who were actually farm workers. When the position was run down in respect of farm workers it was widened for other people working in the area, with the say-so of the Secretary of State. There always has been this concern.

The noble Earl mentioned his powers of advocacy. Well, it may be because he is an English lawyer and not a Scots lawyer that he is not entirely convincing to us Scots. We have to set his judgment against the judgment of Argyll, the councils in the Western Isles, the councillors in Tweeddale, in the Borders, all round the country who are all concerned about this.

Argyll, in their critique of the Bill, never even mentioned second homes or holiday homes. They said: In rural areas and islands where there is in a locality a small number of houses, then either all or a percentage of these should remain in council ownership because of the danger of depopulation, cost of replacement, infrastructure for industry, commerce, and other services necessary to support a community in such an area". If we carry on with this indiscriminately and deny the option to the local authorities, then it means that we shall be encouraging depopulation.

The noble Earl says, "But we have got Clause 4." We have another stage of the Bill coming and we shall get rid of Clause 4 if he wants us to. But to my mind there is no real conflict because Clause 4 only applies a safeguard in respect of holiday homes. In any event, "possibly" is not much of a safeguard. I remind the Minister that the proposed new clause begins "Notwithstanding section 4 of this Act", so he is on a very bad wicket. The noble Earl has given all sorts of reasons why we should not make this change, but he has not convinced me, and I am sure many others remain unconvinced. This is not a rabid socialist suggestion; the clause was inserted in the English Bill to suit English rural areas, and the protection in Scotland should be that at least.

5.11 p.m.

On Question, whether the said amendment (No. 62) shall be agreed to?

Their Lordships divided: Contents, 89; Not-Contents, 106.

Airedale, L. Beswick, L. Bruce of Donington, L.
Allen of Fallowfield, L. Birk, B. Burton of Coventry, B.
Annan, L. Blease, L. [Teller.] Byers, L.
Ardwick, L. Blyton, L. Caradon, L.
Aylestone, L. Boston of Faversham, L. Cledwyn of Penrhos, L.
Balogh, L. Bowden, L. Collison, L.
Barrington, V. Brockway, L. David, B. [Teller.]
Beaumont of Whitley, L. Brooks of Tremorfa, L. Davies of Leek, L.
Davies of Penrhys, L. Lee of Newton, L. Seear, B.
Donaldson of Kingsbridge, L. Leonard, L. Shinwell, L.
Elwyn-Jones, L. Listowel, E. Stedman, B.
Evans of Claughton, L. Llewelyn-Davies of Hastoe, B. Stewart of Alvechurch, B.
Feversham, L. Lloyd of Kilgerran, L. Stewart of Fulham, L.
Fisher of Rednal, B. Longford, E. Stone, L.
Gaitskell, B. Lovell-Davis, L. Strauss, L.
Galpern, L. McGregor of Durris, L. Tanlaw, L.
Gladwyn, L. Mackie of Benshie, L. Taylor of Gryfe, L.
Gordon-Walker, L. Maelor, L. Taylor of Mansfield, L.
Goronwy-Roberts, L. Meston, L. Thurso, V.
Grey, E. Milford, L. Underhill, L.
Hale, L. Monson, L. Wallace of Coslany, L.
Hampton, L. Northfield, L. Walston, L.
Henderson, L. Oram, L. Wells-Pestell, L.
Howie of Troon, L. Peart, L. White, B.
Irving of Dartford, L. Perth, E. Wigg, L.
Jacques, L. Phillips, B. Wigoder, L.
Janner, L. Ponsonby of Shulbrede, L. Wilson of Radcliffe, L.
Jeger, B. Raglan, L. Winterbottom, L.
Kirkhill, L. Rochester, L. Wynne-Jones, L.
Leatherland, L. Ross of Marnock, L.
Airey of Abingdon, B. Faithfull, B. Montgomery of Alemein, V.
Alexander of Tunis, E. Falkland, V. Mowbray and Stourton, L.
Allerton, L. Ferrier, L. Murton of Lindisfarne, L.
Alport, L. Fortescue, E. Nelson of Stafford, L.
Ampthill, L. Geoffrey-Lloyd, L. Newall, L.
Auckland, L. Gibson-Watt, L. Norfolk, D.
Baker, L. Glendevon, L. Northchurch, B.
Balerno, L. Glenkinglas, L. O'Neill of the Maine, L.
Bathurst, E. Godber of Willington, L. Orkney, E.
Bellwin, L. Gormanston, V. Redesdale, L.
Belstead, L. Gridley, L. Ridley, V.
Berkeley, B. Hailsham of Saint Marylebone, L. (L. Chancellor.) Rochdale, V.
Bessborough, E. Romney, E.
Birdwood, L. Hanworth, V. St. Aldwyn, E.
Boyd of Merton, V. Henley, L. Saltoun, Ly.
Bradford, E. Hill of Luton, L. Sandford, L.
Brentford, V. Hillingdon, L. Sandys, L. [Teller.]
Broadbridge, L. Holderness, L. Selkirk, E.
Caccia, L. Home of the Hirsel, L. Sempill, Ly.
Campbell of Croy, L. Hornsby-Smith, B. Skelmersdale, L.
Clifford of Chudleigh, L. Ilchester, E. Soames, L. (L. President.)
Cork and Orrery, E. Inchyra, L. Stamp, L.
Craigmyle, L. Inglewood, L. Strathcarron, L.
Cullen of Ashbourne, L. Ironside, L. Strathclyde, L.
de Clifford, L. Kemsley, V. Strathcona and Mount Royal, L.
De Freyne, L. Killearn, L. Trefgarne, L.
Denham, L. [Teller.] Kimberley, E. Trenchard,V.
Derwent, L. Long, V. Vaizey, L.
Donegall, M. Lyell, L. Vaux of Harrowden, L.
Drumalbyn, L. Macleod of Borve, B. Vickers, B.
Dundee, E. Mancroft, L. Vivian, L.
Eccles, V. Mansfield, E. Ward of Witley, V.
Elgin and Kincardine, E. Margadale, L. Wemyss, E.
Elliot of Harwood, B. Marley, L. Westbury, L.
Elton, L. Massereene and Ferrard, V. Wise, L.
Fairfax of Cameron, L. Merrivale, L.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 7 [Duties of landlords]:

5.19 p.m.

Lord ROSS of MARNOCK moved Amendment No. 63: Page 14, line 31, leave out subsection (4).

The noble Lord said: This is a probing amendment and I hope to obtain some information from the Government. This clause lays down the duties of the landlord, a very important clause indeed, some may say the most important in the Bill. It is the clause which, to my mind, may lead to a certain measure of trouble with local authorities who do not like the Bill and have told the Government so and whose regrets about it have just been shrugged aside by the Government. Subsection (4) says: Nothing in this section shall affect the operation of the provisions of any other enactment relating to the enforcement of a statutory duty whether under that enactment or otherwise". To me the clause is one of some complexity because it brings in the Lands Tribunal; there is two months for this, and two months for that. Subsection (3) states that the Lands Tribunal shall: complete the procedure provided for in section 2 of this Act; and anything done under this subsection shall have effect as if it had been duly done by the landlord under the relevant provision of the said section 2". The Lands Tribunal comes in and takes over the role of the local authority.

I should like to go into this matter in very considerable detail because it is so important. There is another aspect: the sheriff comes into it as well because of the question of the loan. The sale cannot be completed until the question of the loan is settled. That comes under not subsection (2) but some other subsection or clause. So I want to know whether anyone has given any thought to the time that will be involved in this matter. I should like to know whether it is the Lands Tribunal that goes to the sheriff. There is as much complexity and confusion as that in this clause and Bill.

I turn now to what eventually is the really important point. If the landlord is unwilling to sell or to make any move at all, the tussle is between the landlord and an individual, a tenant. But subsection (4) goes beyond that; it is the Government against the local authority. The simple question is: what are the other enactments that the Government had in mind in regard to subsection (4), relating to the enforcement of a statutory duty upon a local authority? I beg to move.

5.23 p.m.


Clause 1(1) of the Bill confers the right to buy on tenants in public sector housing. I say that very generally; I am trying merely to marry up some of the clauses so as to make the position clear. Clause 7 places duties on the landlords to take steps to sell houses to which the right to buy applies, as a corollary of the conferment of the right to buy. This clause also provides for the Lands Tribunal to complete the procedure set out in Clause 2 by acting in the landlord's stead where the landlord has failed to comply with any obligation imposed by Clause 2.

That is the setting of the clause. In such a case in legislation dealing with the enforcement of statutory duties it is standard practice to include a saving provision, such as subsection (4). The purpose of such a provision is to leave scope for a choice as to the means of enforcing a statutory duty which is most appropriate to a particular case. In relation to the Bill we have made it clear that the tenant's rights of access to the Lands Tribunal is intended for use where there is a genuine dispute between the landlord and the tenant.

Unfortunately, the Labour Party in Scotland has made no secret of its intention to attempt to overload the Lands Tribunal by deliberate breach of the law on a large scale as a means of frustrating the Bill when it becomes an Act. The noble Lord has said that this amendment is a probing amendment, but if it were agreed to it would appear to be an attempt to assist that deliberate flouting of the law. That is what the effect would be. It is wholly irresponsible to argue that we should seek to restrict the means available to deal with authorities which deliberately disregard their statutory duties. The Government have made it clear, and will continue to make it clear, that they do not intend to stand by and allow any local authority to deny its tenants the rights which Parliament decides that they should have. Subsection (4) is designed no more and no less to remove any ambiguity or dubiety which may exist.

The noble Lord asked me what kind of power the Government have in mind, and I shall quote him one example. Part of the reason for subsection (4) is to remove any doubt that if an authority is failing to carry out the duties placed on it by this Part of the Bill, the Secretary of State may, for instance, take action under Section 211 of the Local Government (Scotland) Act 1973, with the object of forcing the authority to do so. I very much hope that none of that will be necessary, but unfortunately prudence dictates that the Bill should be as well and as cogently drafted as possible to take account of any flouting of the law that local authorities may see fit to indulge in.


The noble Earl has at times an infelicitous way of expressing himself, and that is about the happiest thing that I can say, bearing in mind that he seemed to impute that in regard to this amendment I was somehow or other part of a conspiracy by the Labour Party. The noble Earl is a lawyer. Even though he is an English lawyer, he will know that even if these words were not there and if, let us suppose, I carried out my threat and persuaded everyone to join me, it would not have mattered tuppence because the powers of the Secretary of State to intervene under the enactments would remain.

It might be that I was trying to help the noble Earl; and I think it right that people who are administering the law and who are thinking about courses that I would not necessarily advise them to take, should know what is in front of them. I am sorry that the noble Lord has not taken in that spirit what I have had to say, and has not spelled out quite clearly what it is in the Government's power to do. I asked the noble Earl, what are the other enactments? —and all he mentioned was Section 211 of the Local Government (Scotland) Act. If he looks through his brief again, he might find one or two more examples which might be even more helpful to us and to the Committee.

The noble Earl said that the Lands Tribunal comes in only where there is a disagreement between the landlord and tenant. With all due respect, that is not true. Much more relevant is the situation in which the landlord timorously fails to issue either an offer to sell or a notice of refusal; in other words, does nothing. The question of the loan arises. A local authority can say, "Yes, we will give you the right to buy". But then the tenant has the power to go to the local authority and say, "I demand a loan". The sale is not going to take place without that loan—and that is nothing to do with Section 2 of the Act. Not only that, but in sequence of procedure the granting of a loan follows the offer to sell, which as soon as may be becomes a binding contract. But the sale cannot take place unless there is the loan. What is the position about that, if the local authority does not act there? Remember, it says that the Lands Tribunal may issue a notice and undertake such other steps as may be required to complete the transaction. Does that mean that the Lands Tribunal then goes to the sheriff and says to the sheriff, "The tenant has not been offered a loan, please act"?

Further, how long is all this going to take, from the time of the neglect of the local authority in the first instance? There is the question of one month and then, in relation to the loan, I think there are another two months, and then there is the period in relation to the sheriff. How long is all this going to take? All this is important from the point of view of implementing the provisions under subsection (4). I do not know whether any thought has been given to this question of procedure; as to how you proceed with the loan part after a local authority has been in default, and the extent to which the Lands Tribunal has got to go and complete the procedure. Because after that part of the procedure it may well be that they all go forward in respect of the loan as well. But what is the position thereafter in respect of the loan?


I will respond briefly. It is plain that the point of this clause is to place the Lands Tribunal in the shoes of the local authority if it is behaving awkwardly in the carrying out of its duties under Clause 2.


Subsection (2).


I do not think I can elaborate on that any further. If there are any disputes about loans, which is a different matter, they will fall to be settled in the sheriff court. If time delays occur during litigation, normal rules applying to Lands Tribunals will mean that the Lands Tribunal would, as it were, suspend its operations pending the settlement of the case in court. So the two dovetail in quite well together. I think, if I may say so, that if the noble Lord goes back and reads this clause in conjunction with Clause 2, it becomes plain.


Clause 2 has nothing to do with loans, and the reference here is to the procedure provided in Section 2 of the Act. He can carry on with that, and he can act as the landlord in respect of the tenant, which means he has a valid claim to purchase the house. But it is another clause altogether which deals with the question of loans; and, as the noble Earl knows, the local authority, under a series of orders that are going to be provided to him or imposed on him—I think the word "imposed" is there—by the Secretary of State, must eventually offer a loan to the tenant who has now got the right to purchase. But there is a possibility there of the refusal of a loan, and there the tenant can take it to the sheriff. This procedure cannot take place until after he has got the right to purchase, and I want to know exactly what, in respect of that, the Government propose to do and how the tenant is involved—because it is not the Lands Tribunal which settles that; it is the sheriff. I think I will withdraw the amendment, and we will return to this at Report stage.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

[Amendment No. 64 not moved.]

Clause 8 agreed to.

Clause 9 agreed to.

Clause 10 [Secure tenancies]:

5.35 p.m.

Lord ROSS of MARNOCK moved Amendments Nos. 65 to 69: Page 16, line 16, after ("(a)") insert ("a regional,") Page 16, line 29, leave out ("and") Page 16, line 32, at end insert— ("; and (h) a police authority in Scotland") line 32, at end insert— ("; and (h) the Forestry Commission") line 32, at end insert— ("; and (h) the Secretary of State where the house is occupied for the purposes of the Scottish Prison Service or a State Hospital").

The noble Lord said: I think we can make some progress if I move Nos. 65, 66, 67, 68 and 69 together. They all deal virtually with the same thing. Clause 10 gives security of tenure to particular people—that is, provided it is a dwelling-house which is let as a separate dwelling, that the tenant is an individual and that the landlord is one of the bodies listed. Then there is a list of bodies, and I hope to add to them, first, a regional authority. They have houses which have tenants in them. Why not give them security of tenure? This is a tenants' rights Bill; let us get in as many tenants as possible, and give them the right to security of tenure. Amendment No. 66 is purely drafting, to cope with the further amendments. Then, a police authority. They have housing, and they have tenants in them. Why not give the persons in those houses security of tenure? The same thing applies in the case of the Forestry Commission, and in the case of people in houses owned by the Scottish Prison Service.

These are very modest amendments, and I hope that the noble Earl does not jump to conclusions. I could have gone a lot further than this. I could have amended the next subsection, but the next subsection says that it does not apply if the person is there on an occupational basis. In other words, what I am dealing with here is those people who have not got to be in their houses because of the nature of their occupation, for the better and more efficient carrying out of their employment. We know that the Scottish Prison Service has houses which are surplus to requirements. It may well be the same thing applies in relation to the police authority. I know some police houses which are in housing schemes and where the policeman is not employed within that area. He is probably in a panda car at the other end of the town.

I could have been very much worse in my amendments if I had gone further, as many people would have liked me to go, and had limited it and reduced the number of tied houses in Scotland—because that is what it would have done. That would be very desirable; but I know the Government I am opposed to, and I try to do reasonable things, moderate things, with them. Why can they not accept this amendment? The noble Earl said he had a surprise for me—we will reach it by Christmas, I expect—and that he is going to accept one of my amendments. There is a bit of a tussle going on with him, as to whether or not it is one that I am going to withdraw, so denying him the generosity of spirit which is innately his. But that is the purpose of these amendments, and there is no reason why the Government should not accept them. The world would not dissolve if they accepted them; because these provisions come into force only if the houses are surplus to requirements and the tenants are not really tied to the accommodation. I beg to move.


These amendments all bear upon the authorities whose tenants would, if the amendments were accepted, become secure tenants and who, therefore, would possess particular rights, such as the right to buy, protection against summary eviction and the right to succession for members of their families resident in the house. It will perhaps help to explain that the list of bodies presently included in subsection (2) of Clause 10 of the Bill is composed entirely of public landlords for which the provision of housing is the primary function—and I should emphasise that phrase. That is the criterion for inclusion of any body in this list.

The bodies which the noble Lord seeks to include in the list do not come into this category. They are not housing authorities. Their statutory duties are not to provide housing for general purposes, but to carry out other functions. The housing they provide is purely ancillary to these other functions, and it is, generally speaking, let only to their staff who are engaged in carrying out these functions. To bind such bodies either to sell their houses or to provide long-term accommodation for their staff, and even in some cases for their adult children after the death of the original staff member, would be sure to inhibit these bodies in the services they were set up to provide for the community. If one realises that the line has to be drawn somewhere, I hope the noble Lord will agree that this is a good and logical place to draw it. In those circumstances, I would invite him to withdraw the amendments.


I shall withdraw the amendments, but I thought that I might have got a few kind words from the noble Earl repeating something said elsewhere: that the Government are examining all these areas. They have said this about the present service relating to the houses that are surplus to requirement. Some of them are empty. Surely, in a case like that, they would not be taking very much of a chance; but if it helps to concentrate the mind of the Government in respect of houses that are surplus to capacity and are not needed for the original purposes for which they were provided—and they were not always provided by the actual authority; it was usually the local authority who made them available to them—and to concentrate their minds on seeing how they can best deal with this and whether or not they could return them to the local authority, I should be better satisfied. It was an unsatisfactory answer but we are used to this now. I beg leave to withdraw the amendments.

Amendments, by leave, withdrawn.

Clause 10 agreed to.

Lord ROSS of MARNOCK moved Amendment No. 7L: After Clause 10, insert the following new clause:

"Consultation with secure tenants

( . It shall be the duty of the landlord to prepare a scheme for regular consultation with secure tenants on such matters of housing management as may affect them. Such a proposed scheme shall be submitted to the Secretary of State not later than 12 months after the commencement of Part III of this Act, and its implementation shall be subject to the Secretary of State's approval.")

The noble Lord said: This again is a very respectable amendment. It is seeking to place a responsibility on the landlord (which is the local authority) to do something which is already being done by the statutory authorities in England. It is to prepare a scheme for regular consultation with secure tenants on such matters of housing management as may affect them. I thought that there was a general consensus that what we wanted was a closer relationship between the local authority and those who were their tenants in housing schemes. They may be large schemes; they may be small ones; and the large ones could be divided into separate ones. There are then these community associations who are striving for the betterment of the areas and the houses in which they live. Surely it would be reasonable for the local authorities to take the initiative and establish direct consultations, exchanges of view, on the many topics that they have in common. I do not know why so far they have turned against this.

The noble Earl can make his name, exercise his power and say that this is a good thing. It will forever be known as the "Mansfield clause". Nobody will ever forget about it. Here is his chance! Maybe this is one that he is going to accept; but I can assure him that it is so sensible that you have only to read it to be convinced. Do not let them tell him that the local authorities do not want it. Some will not want it; but it is the kind of thing that obviously should be done—consultation between the tenants and the landlords. I beg to move.


The noble Lord has invited me to accept the amendment and, as he puts it, to make my name. I must tell him that if I did any such thing I should without doubt lose it—certainly, among my colleagues. I will, however, re-state our reasons for resisting the inclusion of this English provision into our Scottish Bill. The effect of the amendment is to oblige landlords to prepare a scheme for consultation with tenants on matters of housing management which affect them. The noble Lord has borrowed this provision from the English Housing Bill, but he has apparently overlooked the fact that elsewhere in that Bill there is a definition of "a matter of housing management". Without such a statutory definition it would be extremely difficult to establish criteria governing the matters which should be placed before tenants and those matters such as rents which perhaps should not. So before this should become the "Ross amendment", perhaps further thought should be given by him to the criteria. However, that is not our major objection to this provision. That objection rests on the absence of evidence of unfulfilled demand for consultation about general management decisions from the majority of tenants in Scotland.

Some pressure groups—such as Shelter and the Scottish Tenants' Organisation—have suggested that there is a strong demand. But a study in 1978 carried out by the Scottish Consumer Council showed that only 13 per cent. of tenants belonged to tenants' associations. This evidence of indifference is reinforced by the results of a more recent survey of tenants' associations themselves, also carried out by the Scottish Consumer Council. They set out to contact all tenants' associations in Scotland, so far as they could be located. Out of a survey of about 600, less than half (47 per cent.) were sufficiently interested in any level of consultation (from direct involvement in decisions to the basic notification of them) to respond to a question on the subject in the questionnaire. Not surprisingly, 95 per cent. of those who did respond to that question were in favour of consultation on some level, and 77 per cent. favoured a level of consultation at or above that represented by this amendment. Those are the figures which tend to be emphasized by the supporters of consultation. But noble Lords will appreciate that what these figures really mean is that, in total terms only just over a third (36 per cent.) of tenants involved in tenants' associations were in favour of this sort of consultation; and they are not necessarily representative of the great mass of tenants (87 per cent.) who do not even bother to belong to a tenants' association. Moreover, the Consumer Council survey showed that at least three-quarters of those who favoured consultation already enjoyed arrangements where the landlord was normally represented at their meetings. This means that something less than 10 per cent. of those contacted—and, remember, that they themselves constituted only some 13 per cent. of tenants, the ones most interested in such matters—favoured consultation and did not already have it. The real demand for improved methods of consultation is therefore very small indeed.

That is the position in Scotland, and it is very different from the situation in England where tenants' associations are much stronger and the demand for consultation more highly developed. That is why we do not propose to introduce in Scotland at the present time formal arrangements for which there is little demand but which would necessarily place heavy burdens on local authorities in terms of manpower and other resources. The question of resources is very important. COSLA have stressed that a statutory obligation to consult tenants would have very significant manpower consequences and it must be remembered that this Bill contains provisions on the right to a written lease and to challenge unreasonable tenancy conditions which are not in the Housing Bill for England and which will place considerable demands on local authorities' manpower. It is all too easy, in comparing the two Bills, to fail to look at the whole picture. We have directed local authority manpower resources towards the use which we believe will be of greater value to Scottish tenants and, at a time of limited resources, such choices must be made.

Having said all that, I wish to emphasise that we support the growth of consultation with tenants where demand does exist. That is why we have offered a three year grant of £45,000 to the Scottish Council for Social Service to enable them to establish an information and advisory service to landlords and tenants aimed at promoting tenant consultation and housing co-operatives. That grant is unlike anything that has been done in England, and is concrete evidence of our genuine commitment to foster consultation in Scotland. We hope that the encouragement given in this way will result in greater demand, and that where this happens local authorities and tenants will co-operate in creating an effective consultative machinery by a process of natural development out of bodies which already exist, such as the community councils.

I would emphasise that community councils are a tier of Government which the English do not have and I suggest that they are in a very good place to act on behalf of the local citizenry in matters such as housing. Many of these community councils are already active in the housing field throughout Scotland, and possess the double merit of being inexpensive in terms of resources and by now are familiar to the general public. I would urge noble Lords to look positively upon the Government's approach, and to give it their support. I hope that I have shown that the differences which exist as between Scotland and England are much more profound than they may appear at first blush, and the arrangements which have been made are really the best and most logical in the circumstances of Scotland.


The noble Earl says that we cannot do this because of lack of demand for it. Might I tell him that if that is his criterion we should not have this Bill, for there is no demand for it in Scotland. I will not rub salt into the wounds, quoting manifestoes, election results and municipal election results. However, if he is interested in opinion polls, he will have noticed that, low as they were, the Tory support has gone down by yet a few more points in this past week. This debate will be fully reported word for word, in all the Scottish papers, and it may well be that the stock of the Tory party will rise! I have my doubts.

It is easy to suggest lack of demand, and it is easy to suggest that some support has fallen away from the tenants' associations. If they cannot get the consultation that they need and want—and that is a fact in some cases—of course support will diminish. But the noble Earl says that he is all in favour of consultation. Let me tell him that many local authorities have no desire to have any such consultation. They do not want to be bothered. That is why we have the clash far too often between people who are tenants in housing schemes and local authorities who adopt a fairly arrogant attitude in some places and on some occasions.

I think that it is rather a pity that the noble Earl has done this. But to plead the manpower aspects of it and to point out that under this Bill we are giving them rights to leases with all the work that that is going to cost the local authority! May 1, without apology, return to the Explanatory and Financial Memorandum, page 5—and I hope I have the right one, I do not think this one matters a lot—where it says that some local authorities and new town corporations under this Bill may need to make a small addition to their staff, and for the rest the manpower implications of the other provisions are minimal.

I suggest that the manpower implications of this clause are even more minimal. It was quite wrong to put that one forward as one of the reasons. The noble Earl talked about demand and about the number of people who did not demand it. Did he appreciate what we were talking about in the last amendment? Some 38 per cent, of the houses in Scotland are in the rural areas. It is not possible in that case to get the same kind of tenants' association as in the cities. But the problems are in the cities. It is there that we need consultation. This is one way to get it. I am afraid that this is one of the amendments that I cannot see my way to withdrawing.


The noble Lord said this debate would be in all the Scottish papers. That reminds me of something that the noble Lord, Lord Hughes, once said. He said: "These proceedings are as likely to be reported in tomorrow morning's Pravda as they are to be in the Scotsman"!

5.56 p.m.

On Question, Whether the said amend-ment (No. 70) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 100.

Allen of Fallowfield, L. Gregson, L. Ponsonby of Shulbrede, L. [Teller.]
Amherst, E. Grey, E.
Ardwick, L. Hale, L. Raglan, L.
Balogh, L. Hampton, L. Rochester, L.
Beswick, L. Hatch of Lusby, L. Ross of Marnock, L.
Birk, B. Howie of Troon, L. Seear, B.
Blease, L. [Teller.] Irving of Dartford, L. Segal, L.
Blyton, L. Jacques, L. Shinwell, L.
Boston of Faversham, L. Janner, L. Simon, V.
Brooks of Tremorfa, L. Jeger, B. Stedman, B.
Bruce of Donington, L. Kilmarnock, L. Stewart of Alvechurch, B.
Burton of Coventry, B. Kirkhill, L. Stewart of Fulham, L.
Byers, L. Lee of Newton, L. Stone, L.
Caradon, L. Listowel, E. Strabolgi, L.
Cledwyn of Penrhos, L. Llewelyn-Davies of Hastoe, B. Thurso, V.
Collison, L. Longford, E. Underhill, L.
David, B. McGregor of Durris, L. Wallace of Coslany, L.
Davies of Penrhys, L. Mackie of Benshie, L. Walston, L.
Donaldson of Kingsbridge, L. Maelor, L. Wells-Pestell, L.
Evans of Claughton, L. Melchett, L. Whaddon, L.
Fisher of Rednal, B. Northfield, L. White, B.
Gaitskell, B. Oram, L. Wigoder, L.
Galpern, L. Peart, L. Wynne-Jones, L.
Goronwy-Roberts, L.
Airey of Abingdon, B. Elton, L. Montgomery of Alamein, V.
Allerton, L. Faithfull, B. Mottistone, L.
Alport, L. Ferrier, L. Mowbray and Stourton, L.
Ampthill, L. Fortescue, E. Murton of Lindisfarne, L.
Auckland, L. Gainford, L. Nelson of Stafford, L.
Baker, L. Glendevon, L. Newall, L.
Balerno, L. Godber of Willington, L. Norfolk, D.
Bellwin, L. Gormanston, V. Northchurch, B.
Belstead, L. Gray, L. O'Neill of the Maine, L.
Berkeley, B. Greenway, L. Orkney, E.
Bessborough, E. Hacking, L. Perth, E.
Bourne, L. Hanworth, V. Redesdale, L.
Bradford,E. Henley, L. Ridley, V.
Brentford, V. Hill of Luton, L. Rochdale, V.
Broadbridge, L. Holderness, L. Romney, E.
Brougham and Vaux, L. Home of the Hirsel, L. St. Aldwyn, E.
Butler of Saffron Walden, L. Hood, V. Saltoun, Ly.
Caccia, L. Hornsby-Smith, B. Sandford, L.
Campbell of Croy, L. Hylton-Foster, B. Sandys, L. [Teller.]
Clifford of Chudleigh, L. Inglewood, L. Selkirk, E.
Cockfield, L. Ironside, L. Skelmersdale, L.
Craigavon, V. Kemsley, V. Soames, L. (L. President.)
Craigmyle, L. Kimberley, E. Strathcarron, L.
Cranbrook, E. Lauderdale, E. Strathclyde, L.
Cullen of Ashbourne, L. Lindsey and Abingdon, E. Strathcona and Mount Royal, L.
De Freyne, L. Long, V. Trefgarne, L.
De La Warr, E. Lyell, L. Trenchard,V.
Denham, L. [Teller.] Macleod of Borve, B. Vaizey, L.
Donegall, M. Mancroft, L. Vaux of Harrowden, L.
Dulverton, L. Mansfield, E. Vivian, L.
Dundee, E. Margadale, L. Ward of Witley, V.
Eccles, V. Marley, L. Wemyss and March, E.
Elgin and Kincardine, E. Massereene and Ferrard, V. Wise, L.
Elliot of Harwood, B. Merrivale, L.

Resolved in the negative, and amendment disagreed to accordingly.

Schedule 1 [Tenancies which are not secure tenancies]:

6.5 p.m.

Lord ROSS of MARNOCK moved Amendment No. 71: Page 57, line 4, leave out paragraph 1.

The noble Lord said: I do not want to alarm the noble Lord; this is purely a probing amendment. For my sins, a long time ago I was a member of the Guthrie Committee on long leases in Scotland. We thought we had got rid of them once and for all when the incoming Conservative Government produced a Bill to allow the people with those long leases, no matter what term they had to go, to convert them into feus. One of the recommendations we made was that there should be no more long leases in Scotland. What I want to know is how it comes that we have a provision saying that a tenancy shall not be a secure tenancy if it is for a period exceeding 20 years. I thought we had got away from this practice in Scotland, and I just wanted to make that point here and to ask the Government what information they can give me about the existence of long leases in Scotland.


As the noble Lord has correctly stated, paragraph 1 of Schedule 1 excludes tenancies under long leases from being secure tenancies. His amendment, which he has admitted is probing, would exclude that. Unlike England, in Scotland long leases, as the noble Lord quite rightly says, in effect have suffered disapproval for many years, and since the Land Tenure Reform (Scotland) Act 1974 the creation of new long leases for residential property has actually been illegal in Scotland. The reason for excluding that form of tenant from security under this Bill is that it is considered more a form of ownership than of tenancy. A tenant on a long lease, of 20 years or more, has rights of virtual ownership over the property for that term. He does not need additional rights of the type accorded to secure tenancies, because he already has them.

As I have pointed out, no new long leases have been created since 1974. It is likely that if any survive from before then they are minuscule in number. I cannot give the noble Lord figures, because obviously no Government or Government department would know such detail. The provision excluding them from secure tenancy is contained in the Bill simply as a precaution, for the reasons I have outlined. I should add that the previous Government's consultation paper on security of tenure proposed a similar exclusion and that such an exclusion appeared in the Bill which they published relating to England and Wales. The noble Lord may well agree, therefore, that this provision has good parentage.


It may well be in relation to England and Wales; I am perfectly sure it is. The position is entirely different. Many people thought there was no leasehold at all in Scotland. When we discovered a situation arising at one time the committee was set up under Lord Guthrie and we found that there were a considerable number of long leases in Scotland. There were many around the Ayrshire area. We discovered that there was an element of perpetuity about at least two or three of them. We came across the actual charters that were granted by the Earls of Eglington, I think it was, for a period of 9,999 years. We discovered, too, that one of the reasons why they did not grant feus, and they were so registered, was that there was a certain measure of doubt as to whether they had any right to the land, because it was church land at one time. I was fascinated by the appearance here again of long leases. I am very glad to know that they are a bit of a hangover and that there are relatively few of them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Schedule 1 agreed to.

Clauses 11 and 12 agreed to.

Clause 13 [Succession to secure tenancy]:

Lord ROSS of MARNOCK moved Amendments Nos. 73 and 74: Page 18, line 25, leave out from ("below" to end of line 27. Page 19, line 19, leave out subsection (5).

The noble Lord said: Amendment No. 73 goes with Amendment No. 74 and I really want to have my mind clear as to what is meant by this succession as to secure tenancies. I hope I am not right in my reading of the Bill where a secure tenancy passes by operation of law to a qualified person unless the qualified person declines or the tenancy is terminated by operation of subsection (5).

I notice the Government have already got another amendment in to subsection (5) to remove the words, … created on the death of a tenant". I was envisaging a family of husband and wife, probably both pensioners, and a single person at home looking after them—this happens a lot in Scottish families—and the tenancy passes first from the husband to the wife. Then does it pass a second time? I was troubled by a secure tenancy which is passed under subsection (1) above to a qualified person shall not, on the death of a tenant (or one of joint tenants) so pass on a second occasion,…". I am sure that many people in Scotland would be very concerned indeed if they found that somebody who had gone home to look after aged parents on the death of both parents, one after another, would be left without virtually any security of tenure. Could I be reassured on that point? I beg to move these amendments.

The DEPUTY CHAIRMAN of COMMITTEES (The Earl of Listowel)

Amendments Nos. 73 and 74 are proposed together. I have to point out to the Committee that, if Amendment No. 74 is agreed to, I cannot call Amendment No. 75.


Subsection (5) did not read wholly felicitously. If one takes Amendment No. 75 and reads it with that, to my brain at any rate, it is much more comprehensible. The effect of the clause is that the right to succession to a secure tenancy at present extends to only one succession except where there are joint tenants, but these amendments would in effect provide for an unlimited right of succession as long as any joint tenant, surviving spouse or member of the tenant's family remains living in the house. The Bill, as it stands, provides a right of succession only once, as I have said, and not for an unlimited number of times except in the case of joint tenants, where the right to occupy the house continues for as long as any of the joint tenants who originally succeeded to the joint tenancy are still living there.

The important point to bear in mind is that the clause provides only for a statutory minimum. There is nothing to stop a local authority bestowing the tenancy on the next member of the family who wants it, if the local authority considers that it is appropriate to do so. Local authorities have the discretion to do that and they can do it as many times as they wish. And of course, they could create joint tenancies, which would allow succession to occur a number of times, as I have said. I understand that COSLA is content with the clause as it stands and that no representations have been received from tenants or their representatives on the matter. We think it is a sensible way of dealing with this.

If I may, I will finally answer the particular situation which the noble Lord postulated: that is to say, an elderly couple with a single child, perhaps an unmarried daughter, looking after them, which I think is what the noble Lord had in mind. If one of the parents dies, then the secure tenancy passes to the surviving spouse, but under the Bill it would not pass to the survivor, that is to say, to the child. However, as I have said, it is open to the landlord to give succession, as they mostly do at present, without any statutory compulsion. This they could do, and the easiest way to do it would be to take the child, if I may so call the person, into the tenancy.


I am grateful to the Minister for the explanation but I am afraid it is not reassuring. I was not talking about children; I was talking about an elderly couple, a husband and wife, who may have at home an unmarried daughter—or it could be a married daughter or a widow—who has come home or stayed at home specifically to look after the father and mother. Now the noble Earl tells me that under the statutory provision of security it will pass from the husband to the mother but will not pass, when the mother dies, to the person who has spent a considerable part of his or her life—perhaps the whole of it —in that home. He says they can rely upon the local authorities or that in the particular circumstances the husband and wife should get a joint tenancy or, if the father and the unmarried daughter are left, they should get a joint tenancy and so would be covered in that way. All this assumes that the local authority will grant that joint tenancy, but the local authority have certain rights here as well. I would rather see, in a position like that, the unmarried daughter being securely covered in respect of their home. I hope that the Government will look at this.


Throughout these proceedings the noble Lord has castigated the Government for not allowing responsible local authorities the discretion in the matter; and this is precisely what we are allowing them. We are saying that there should be, on a death, one succession, but not more than one, unless there are joint tenants. There is no earthly reason why a responsible local authority, as I have suggested, should not accept the survivor—I called it a child, but you can have some pretty old children, even though they are still children—into the tenancy. I think the proof of the pudding is in the eating, and neither COSLA nor any of the tenants associations had anything to say about this. Apparently they thought that the provision as embodied in the Bill is perfectly satisfactory. Really, if one started to make the secure tenancy pass more than once it would open the thing up much too much, if one stops to think about it.


No, it has long been the law in relation to private tenants that the succession passed twice. That has been the regular factor; and so here we are reducing the amount of security that was certainly formerly held in the privately-tenanted sector—




This is public. They have not had security hitherto. This is one of the great improvements that are being made. I welcome that, but I think that the Government could have met the wishes of the people of Scotland. I am perfectly sure people do not know about this. One of the troubles is that, once you put it into statute, that is the law. There is less likelihood of the generosity of spirit of local authorities being felt there. If the Government put that case to the people of Scotland, I am sure they would say that the house should automatically go to the daughter or the son who has lived with the parents and looked after them, and who, if the parents die, would automatically be faced with the possibility of having to leave.

Let us not forget that local authorities have done strange things in the past. I am sorry that the noble Earl has not been able to contact tenants. Someone concerned with the provisions in the last amendment on which we voted, and which was turned down, could have been consulted by the Government as truly representing tenants. I shall certainly withdraw the amendments, but I am very disturbed, indeed, by the information that I have been given and I may have to return to them at Report stage.

Amendments, by leave, withdrawn.

Lord LYELL moved Amendment No. 75: Page 19, line 25, leave out ("created on the death of the tenant").

The noble Lord said: My noble friend Lord Mansfield led us into this amendment. As your Lordships will see, it is a purely drafting amendment which has no major effect on the sense of the provision. It is clear from the first half of Clause 13(5) that the whole subsection applies only in the case of a tenancy which has already passed by succession on one occasion, and the words in the second half which this amendment seeks to remove are therefore redundant. I beg to move.

On Question, amendment agreed to.

Clause 13, as amended, agreed to.

Clauses 14 and 15 agreed to.

Schedule 2 [Grounds for recovery of possession of dwelling-houses let under secure tenancies]:

Lord LYELL moved Amendment No. 76: Page 59, line 14, after ("in") insert ("or in")

The noble Lord said: I hope it will be for the convenience of the Committee if I speak to Amendments Nos. 76 and 77 together. These are technical drafting amendments, which are intended to remove any scope for doubt as to whether it could be held that the present drafting excluded from the description of anti-social behaviour, in paragraphs 7 and 8 of Schedule 2, conduct which was a nuisance or annoyance if it took place inside a house. It has been suggested to the Government that the present wording, "in the vicinity of the dwelling-house," might not cover this. Clearly, behaviour "in" the dwelling-house is fully as likely to be offensive to other inhabitants of the neighbourhood, and it would be nonsensical for it to be excluded from these provisions. These two amendments ensure that this behaviour is included. I beg to move.

On Question, amendment agreed to.

Lord LYELL moved Amendment No. 77: Page 59, line 20, after ("in") insert ("or in").

On Question, amendment agreed to.

6.24 p.m.

Lord ROSS of MARNOCK moved Amendment No. 78: Page 60, line 40, at end insert ("including the need to be near another member of the family for the well-being of that member or of the tenant.").

The noble Lord said: This amendment takes us to Schedule 2 and the suitability of accommodation, which takes us to Clauses 15 and 20. It envisages a situation where a sheriff grants a right to repossession of a house, but the landlord is under an obligation to provide suitable alternative accommodation. The guidance in respect of accommodation that is considered suitable is in paragraph 2 on page 60, which reads: In determining whether accommodation is reasonably suitable to the needs of the tenant and his family, regard shall be had to—

  1. (a) its proximity to the place of work …;
  2. (b) the extent of the accommodation …;
  3. (c) the character of the accommodation …;
  4. (d) the terms on which the accommodation is offered …;
  5. (e) if any furniture was provided …;
  6. (f) any special needs of the tenant or his family".
I suggest that one of the other considerations is: including the need to be near another member of the family for the wellbeing of that member or of the tenant". Many people change their abode to be near the parents whom they are looking after, and that is one of the considerations that should be taken into account in deciding whether the alternative accommodation is suitable. I beg to move.


I am getting nearer to accepting one of the noble Lord's amendments. In fact, this is not an objectionable amendment, although it is taken verbatim from the English Housing Bill. But we consider that it is better left to be encompassed in the general criterion in our Bill, which is not paralleled in the Housing Bill. That refers, as the noble Lord has said to, any special needs of the tenant or his family", which gives the courts greater scope for responsiveness to the circumstances of individual tenants. What I am telling the noble Lord is that the courts can pay attention to exactly the matters to which the noble Lord has drawn attention without writing it into the Bill. With that assurance, I hope that he will see fit to withdraw his amendment.


It is not so much an assurance as an explanation. The assurance would come if you knew all the sheriffs in Scotland, and were satisfied that, when they construed the words, any special needs of the tenant or his family", they would take into account what may not be the needs of the tenant and his own family, but of elderly parents who are another family altogether. They would need to construe the words "the tenant or his family" as meaning not his own immediate family, but the family from which he came.

I am disappointed. I did not realise that this was in the English Bill. I had enough to do reading this Bill and trying to make some sense of it, without reading another very much larger Bill and one written in a foreign language, anyway, which will be more familiar to the noble Earl, who, I gather, practises at the English Bar and not at the Scottish Bar, and will be more familiar with the terms there used, and less so with the terms used in this Bill. But it was not a bad explanation that he gave us this time, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 79 not moved.]

Schedule 2, as amended, agreed to.

Clause 16 agreed to.

Clause 17 [Variation of terms of secure tenancies]:

Lord LYELL moved Amendment No. 80: Page 23, line 39, after ("of") insert ("section 10 of").

The noble Lord said: This is another technical drafting amendment, which does not affect the main sense of the provision. It merely clarifies the cross-reference to the Bill to be included in the Housing (Scotland) Act 1969 by making it more specific. I beg to move.

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 agreed to.

Clause 19 [Re-possession]:

6.30 p.m.

Lord LYELL moved Amendments Nos. 81 and 82: Page 24, line 21, leave out ("the date") and insert ("service") line 36, leave out ("send") and insert ("serve").

The noble Lord said: I hope it will be for the convenience of the Committee if I take Amendments Nos. 81 and 82 together. These are both technical drafting amendments to change the terminology in this section covering notices and bring it into line with that used elsewhere in the Bill in order to attract the general provisions which govern the service of notices contained in Clause 80 of the Bill. They are fairly simple amendments.

On Question, amendments agreed to.

Lord LYELL moved Amendment No. 83: Page 24, line 37,leave out ("first")and insert ("on").

The noble Lord: There is a slight printing error in the amendment as it appears on the Marshalled List. The amendment should read: Page 24, line 37, leave out first ('to') and insert ('on'). If I may direct your Lordships' attention to line 37 you will find that the word "to" occurs twice, and to put this matter beyond peradventure I beg to move that we leave out the first "to" and insert the word "on". Once again this is a technical amendment and I hope that your Lordships will agree to it because it will make things that much clearer.

Viscount SIMON

This is an obvious improvement on the drafting because notices are served on people and not to people, but through a misunderstanding in the previous amendment—which I know we cannot go back on now․the same trouble is going to arise. Perhaps on the previous amendment there is a word "to" which ought to be "on". If the noble Lord will look at it later he will find that is correct.


I did not quite understand the semantics, but the first time I looked at this amendment it seemed to me that, even without the previous amendment my amendment made slightly more sense, but I take the point that, if we look at the previous amendment, Amendment No. 83 is indeed consequential on Amendment No. 82 and I hope No. 81 as well. How-ever, looking at Amendment No. 83 it seemed to me to make adequate sense on its own.

Viscount SIMON

I am sorry I did not make myself clear and I am probably out of order, but on Amendment No. 82 we altered "send" to "serve". The passage read "send to the tenant" and obviously it ought to be "serve on the tenant". The "to" should be altered to "on".


That is precisely the amendment I was proposing with Amendment No. 83.


You see the difficulty we get into when we start muddling about. We have perfectly simple language that everyone could understand. You were going to send something to somebody. Then someone came along and said: "Everyone can understand that, but that's not legal language; we must serve it on them." That is what it comes to, is it not? That is the result of the two amendments.

I am very glad that the noble Lord has given us the explanation for the amendment which has been on the Marshalled List for a long time. It has worried me for a long time. I do not know what my two Scottish colleagues are finding amusing about this, but I have been worrying about it. Here we have the word "to" at the beginning of a line and then it was the fourth last word in the same line, and we are told to leave out "to". I did not know which "to" was going to be left out until the noble Lord, Lord Lyell, got up and enlightened us. It made a tremendous difference; it took a burden off my mind that had been there since I had read this strange amendment.

I did not think the two amendments were necessary in the first instance. Let us have some fun. I want to hear the explanation as to whether I am right that the words are far too simple, that we must have a legal term, "serve on", rather than "send to". If you "send to", you have no idea as to whether the person receives it; whereas if you "serve" it on him he has got to receive it.


May there not be a simpler explanation? If one looks back to Amendment No. 81, surely there is a question not just of terminology but of fact, because the date of the notice might not be the date on which it was served, and "the date" has been changed to "service". Therefore, you have to alter "send" to "serve" in any case to match that.


I was quite happy with No. 81.


We have had a fascinating discussion. I think we should end this ritual clog dance. I beg to move.

On Question, amendment agreed to.

Clause 19, as amended, agreed to.

Clause 20 agreed to.

Clause 21 [Subletting]:

Lord ROSS of MARNOCK moved Amendment No. 84: Page 26, line 31, at end insert— ("(8) Where the principal tenancy is brought to an end under Section 12(1) of this Act the landlord shall offer suitable alternative accommodations to a sub-tenant within the meaning of this section").

The noble Lord said: This is a new subsection (8) covering the position of those who are sub-tenants in a case where the principal tenancy has been brought to an end under Clause 12(1); in other words, the death of the actual secure tenant. The secure tenant could not have a sublet without the permission of the landlord. He had to have his written consent. The circumstances have changed but it means that if the tenancy is ended then he himself is rendered homeless.

Bearing in mind that the tenant who has died had to get the written permission of the landlord and the landlord knows the sub-tenant is there, surely it is fair that the landlord should rehouse the subtenant. It may well be suggested it is unnecessary because if we make them homeless under the Homeless People's Act they have got to be rehoused, but it would be far more tidy if we did it in a particular way.


The noble Lord, Lord Ross, proposes that people who are accepted as sub-tenants by tenants of housing authorities with those authorities' consent, and at their request, should automatically have the right to be re-housed by the authority if for any reason the main tenancy comes to an end.

The provision included in the Bill to give tenants of housing authorities the right to take in lodgers or sub-tenants is intended to ensure that the best possible use is made of the housing stock. There is in general a surplus of larger houses in the stock compared with small houses or flats. A good number of tenants are therefore obliged to live in accommodation somewhat larger than their present needs require; many have surplus rooms which they would be glad to let to lodgers or sub-tenants. Such an arrangement is advantageous to the tenant, who would receive a small rent from the sub-tenant to help meet outgoings on heating and rates, and so on; it is advantageous to the sub-tenant, who may well be a student or other young, single person whose housing needs are not such as to qualify him for the main tenancy of a local authority house but who finds it difficult and expensive to obtain private accommodation. Finally, it is advantageous to the community, because houses which are lived in and kept in good repair, well ventilated and heated are less likely to deteriorate.

All these advantages will be lost if authorities are not prepared to give their consent for sub-tenancies, and that is likely to be the result if this amendment is accepted. An automatic duty on the authority to rehouse any sub-tenant if the main tenancy came to an end would be an enormous disincentive for that authority to grant consent for sub-tenancies to be created. It would not wish to lay itself open to the obligation to house people who might well, in normal circumstances, have no housing priority whatsoever. It would also be a disincentive to the tenant, because sub-tenants would have an acute interest in the main tenancy being brought to an end so that they could get to the head of the housing authority's waiting list for an independent tenancy. Imagine, if you will, the possible opportunities for corruption that could arise if the unscrupulous chose this method of queue-jumping the waiting list.

Sub-tenancies are not proposed as a replacement for normal local authority housing. They are intended as an additional form of housing, particularly catering for types of people who normally would not qualify for local authority tenancies. It is therefore illogical to suggest that the ending of a sub-tenancy consequent upon the termination of the main tenancy should enlarge the conversion of the sub-tenant into a main tenant elsewhere in the stock. I hope, therefore, that the noble Lord will see fit to withdraw his amendment.


That is one of the most convincing arguments which I have heard today, and I am delighted to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Schedule 3 [Terms of secure tenancy relating to sub-letting]:

6.42 p.m.

Lord ROSS of MARNOCK moved Amendment No. 85: Page 61, line 20, after ("consent") insert ("with or without conditions").

The noble Lord said: I beg to move Amendment No. 85. It refers to the point that we mentioned earlier: that the person who wishes to have a sub-let must get permission in writing from the landlord. In relation to an application under paragraph 1, the landlord may consent, or he may refuse his consent, provided that he does not refuse his consent unreasonably. The landlord shall serve on the tenant notice in writing of his consent or refusal, and in the case of refusal the reasons therefor …". It may be possible for the landlord to write conditions into the consent. Therefore, I suggest that after the word "consent" in line 20․" the landlord shall serve on the tenant notice in writing of his consent or refusal "․the words "with or without conditions" should be inserted. I beg to move.


We see no reason why a landlord's consent to sub-letting or taking lodgers should be subject to conditions. Already there are provisions which allow the landlord to ensure that no excessive charges are made and I do not see that there are other matters about which the landlord need concern himself. If one looks at the private rented sector or at owner-occupiers renting out their homes, one sees that it is often necessary for the consent of the landlord or the building society to be obtained, but it would be unusual for conditions to be attached. Consequently, we see no reason why public sector tenants should be subject to such restrictions. There have been too many petty restrictions in the past, and this Bill is an attempt to set tenants free from unnecessary interference with the use of their homes. It is a matter of reasonableness.


Does the noble Lord wish to withdraw his amendment?


No. Just put the question.

On Question, amendment negatived.

[Amendment No. 86 not moved.]

Lord ROSS of MARNOCK moved Amendment No. 87: Page 61, line 32, leave out paragraph 6.

The noble Lord said: If a landlord refuses his consent, then the aggrieved secure tenant of this local authority house can go to the sheriff about it and he has to decide whether or not the refusal is reasonable. In paragraph 6, which I suggest should be left out, the sheriff has to have regard, in particular, to whether the consent would lead to overcrowding in such circumstances as to render the occupier guilty of an offence and also to whether the landlord proposes to carry out works on the dwelling-house or on the building of which it forms part that will affect the accommodation likely to be used by the sub-tenant.

I suggest that we should leave out that paragraph. We should leave the matter to the good sense of the sheriff. Obviously these are matters which would be put to him by the landlord. Can we not trust our sheriffs up to this point? Do we have to say, "Ah, one of the things you have to bear in mind is whether or not the tenant might be guilty of an offence if he overcrowds". That will be news to everybody else, but it will hardly be news to the sheriff. He is a man who knows the law and it would be in relation to the law that he would have to decide. It is one of the points for refusal. The noble Earl was concerned about petty restrictions on the tenant. I think we should be concerned, too, about the petty instructions that we are giving to the sheriffs of Scotland. I beg to move.


There is no question of paragraph 6 of Schedule 3 in any way fettering the discretion of the sheriff or, indeed, of imposing upon him any restrictions, whether petty or otherwise. The amendment would deprive the court of the guidance which paragraph 6 offers to it. Perhaps I may resolve the noble Lord's anxieties about this paragraph if I point out that the considerations are not meant to be exclusive, as mentioned in paragraph 6. The sheriff may have regard to any other circumstances which he regards as relevant, but the paragraph directs his attention in particular to two considerations: first, whether sub-letting would lead to overcrowding and, secondly, whether the landlord intends, in the near future, to carry out works.

It is wholly reasonable, I suggest, in the circumstances that the court should be required to have regard to those circumstances. It would not be in the tenant's interests to be allowed to sub-let if, by so doing, he, no doubt unwittingly, committed a criminal offence. It is right, equally, that the court's attention should be specially drawn to that possibility in order to protect the tenant against the consequences of his own ignorance. The same argument would apply if it was foreseeable that the amount of accommodation available in the house would be reduced as a result of works prepared by the landlord. As I have said, this is really a matter of guidance to a court. I hope that the noble Lord will be satisfied by the explanation.


I think that the noble Earl ought to agree to this amendment. As a practising advocate, surely he knows that a solicitor appearing on behalf of a local authority to defend their reason for refusing the sub-tenancy would regard it as his duty to explain to the sheriff those sections of the Act which had to be paid heed to in order to avoid overcrowding, which would constitute a criminal offence. That is the duty of the local authority's solicitor or agent, acting on their behalf. But, for whatever reason, as I would hope that he would accept this amendment, my noble friend Lord Ross has now agreed that sheriffs do have some wisdom, because earlier he said, "You don't know our sheriffs in Scotland". I am glad that he now recognises that without this instruction or attention being drawn to this particular possibility they can use their own judgment and decide whether or not a refusal was justified.


In this case I am against the noble Lord, Lord Ross, in that I do understand that even sheriffs, great men though they are, like to know the opinion of Parliament and what Parliament intended, and I consider that the instruction would appear to be reasonable.


I have no great notion of sheriffs since I seldom meet them except in the movies, but I do recall that a little earlier this afternoon, while we were discussing amendments put forward by my noble friend Lord Ross in Part II of Schedule 2, paragraph 2 (f), my noble friend suggested that we should add certain words to the end of that subparagraph. The noble Earl very convincingly argued then that the general proposition contained in the subparagraph that any special needs were to be taken into account already contained the propositions which my noble friend wished to be included. Is this not something of the same sort wherein the particular ideas to which attention is drawn in paragraph 6 of Schedule 3 are already included in the reasonableness which is the mark of paragraph 5 of the same schedule? I should have thought that the same argument that applied to Schedule 2 would apply here. Although I am no lawyer I am reinforced in this thought by an impassioned speech made by the noble and learned Lord the Lord Chancellor a week or two ago when we were debating the Employment Bill, in which he remarked that where a general proposition had been stated in a law it was weakened by including particular exceptions. He said that in relation to an amendment of my own which I withdrew on the strength of his cogent arguments and the fact that I was quite clearly going to be defeated, but I am wondering whether that same principle does not apply here. I wonder whether the noble Earl might think again and concede the point to my noble friend.


There is every difference in the world between those matters and what is contemplated and embraced by a subparagraph such as (f), which covers Any special needs of the tenant or his family". I do not want to go back over old ground but, as I said and I think the Committee accepted, the previous case embraced what the noble Lord, Lord Ross, was trying to put into the Bill. This is an entirely different matter; this is guidance to the court to have regard to one particu- lar aspect of the problem which it will have to decide as to whether a refusal has been reasonable or not in certain circumstances.

The noble Lord, Lord Galpern, comes from a part of the world where I suppose all lawyers are perfect; they know their law, they come into court well briefed, having done their homework and whichever side they are appearing for, they are able to assist the court with complete impartiality to the best of their ability. Unfortunately․and I am an honorary sheriff myself․it does not happen that way throughout Scotland on all occasions. There are occasions when there are practitioners․and indeed courts too․who quite like to go back to a section and to receive just a little guidance as to how they might approach their duties in deciding a dispute such as this. It was in that spirit and in those circumstances that this was included in the Bill and I suggest that it is quite a good provision.


Before the noble Earl sits down, if the petitioner was failing in his duty towards his client I am quite sure that the client, if it happened to be a local authority, would make sure that that was his first and only argument.


I do not wish to detain the Committee but I wonder whether the noble Earl would reconsider what he has just said. He seemed to me to be saying that paragraph 6 was merely guidance as to what might be reasonable. Guidance is something which should be taken into account in deciding whether something was reasonable or unreasonable, but is that not exactly the proposition which my noble friend argued in relation to Schedule 2?․namely, following the words included in his amendment he was giving guidance as to what would be special. If it was wrong in Schedule 2 to give guidance as to what was special, how does it become right in Schedule 3 to give guidance as to what is reasonable? I do not wish to go on about this too long, but I am not as yet convinced.


I think one of the mistakes that my noble friend makes is to expect consistency in argument about this. I felt very strongly about it and then of course I was reassured in my feelings as to how right I was when the noble Lord, Lord Mackie, said he was against me: then I knew I was right. I was all for trusting sheriffs but then up gets the noble Earl and says that he is an honorary sheriff. We cannot leave anything to chance in a case like that, can we? Honorary sheriffs sometimes act as sheriffs. He ought really to have declared an interest.


No, because honorary sheriffs do not get paid. I really have a non-interest.


I was going to say that we do not get paid here either, but that is not true of the unpaid honorary sheriff. The honorary sheriff does appear and does make decisions on occasions and it appals me to think that after our performance here and the inconsistency of argument that there has been we should allow this honorary sheriff to decide on a case without some kind of guidance. He has proved his own case by his confession.

Actually when we think of it, when a landlord refuses he has to give the reasons for his refusal. Now we are being told that we cannot trust the sheriffs to say whether these reasons were reasonable or not. So far as I understand the Bill it is only on these reasons that we are given and I have not the slightest doubt that if there was overcrowding with somebody with six in a family wanting to take lodgers into a two-bedroomed house, of course the reason would be given in refusing. If they were going to make some change of course a reason would be given. It is really trying to teach a grandmother to suck eggs when we put these two particular aspects in concerning reasonableness. I am still slightly alarmed that we shall get that position arising from a certain honourary sheriff somewhere in Perthshire and I think we had better give them some guidance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Schedule 3 shall be the third schedule to the Bill?


I should like to ask my noble friend a brief question. Paragraph 5 of Schedule 3 says: In proceedings under paragraph 4 above, the Sheriff shall order the landlord to consent to the application unless it appears to him that the refusal is reasonable". Can he consent with or without conditions? Some reasons may be good and some may be bad and he may think it would be right to consent subject to a particular condition in that case. The noble Lord says we have that amendment.

I am making a different point.


My understanding of the matter is that the sheriff consents or does not consent.

Schedule 3 agreed to.

Clause 22 agreed to.


I think this might be a convenient moment to adjourn the Committee stage for dinner. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.