§ 5.30 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, that the House do now resolve itself into Committee.—(The Earl of Mansfield.)
§ House in Committee accordingly.
§ [The Baroness WOOTTON OF ABINGER in the Chair.]
§ Clause 1 [Secretary of State's power to authorise refusal to sell certain dwelling-houses provided for elderly persons]:
Lord ROSS of MARNOCK moved Amendment No. 1:
Page 1, line 12, leave out from ("which") to end of line 13.
§ The noble Lord said: I beg to move Amendment No. I and I hope that it will be for the convenience of the Committee if I also speak to Amendments Nos. 2, 3 and 5 because they all hang together.
§ The Earl of MANSFIELD
I interrupt only to say that I think that Amendment No. 5 covers rather different ground.
§ Lord ROSS of MARNOCK
I do not think that I mentioned Amendment No. 5. I mentioned Amendments Nos. 1, 2, 3 and 6. If I said Amendment No. 5, I apologise.
§ Lord STRATHCLYDE
I should like to ask a question. The noble Lord's first amendment reads:Page 1, line 12, leave out from ('which')".2097 The word "which" occurs twice in line 12. I presume that he means the first "which". I think that the amendment would read better from there rather than from the second "which". Perhaps the noble Lord could tell us?
§ Lord ROSS of MARNOCK
I would be very glad to do so—it is the first "which". Of course, part of this confusion arises from the fact that we had the Second Reading debate just the other night and the time between the Second Reading and the Committee stage has been just a day or so, which is not all that convenient—
§ Lord STRATHCLYDE
The noble Lord has misunderstood me. Let me read what it says:Page 1, line 12, leave out from ('which') to the end of line 13".The word "which" occurs twice. All that I am asking is, which "which" is referred to?
The DEPUTY CHAIRMAN of COMMITTEES
I think that the noble Lord has already answered the point: it is the first "which".
§ Lord ROSS of MARNOCK
Yes, it is the first "which". I hope to explain the amendments and I shall try to read the clause as it is proposed to be amended.
Your Lordships will recollect that during the passage of both the Housing Bill and the Tenants' Rights, Etc. (Scotland) Bill the House evinced a very considerable interest in houses for old people and expressed a considerable concern about the problem and the availability of a stock of such housing to meet the obligations that have been placed upon the local authorities or housing authorities by Parliament.
As a result, a change was made in the English Bill. It was considered in another place and the Government decided to accept, in principle, the change that was made, and their acceptance of that was not a little influenced by the fact that business had got into a bit of disarray down there. When they considered what they would do—and there were meetings with the Opposition—certain pledges were made to the effect that whatever was done for England would also be done for 2098 Scotland. It was very, very clear. It was stated not by one Minister but by two Ministers. Indeed, they were both Cabinet Ministers—the Leader of the House of Commons and the Minister for the Environment. The pledge was made not once, but over and over again.
If any noble Lord has not read the Second Reading debate I would remind them of what happened. At col. 528 for 5th August the Leader of the House, Mr. St. John-Stevas said, in reply to Mr. David Steel:On the Housing Bill it is vital that Scotland and England should be treated equally in these matters. Therefore, it is right that the interests of Scotland should be taken into account on an equal basis with the interests of England".Then, at column 531, he said:If an agreement in principle is reached that Scotland and England should be treated equally in this matter, how that is done becomes a matter of technicalities".The pledge was repeated again by the Secretary of State for the Environment. He was asked for a similar amendment to be inserted in the Tenants' Rights, Etc. (Scotland) Bill, but, of course, it could not be done because there was no amendment; this noble House failed to be consistent in its approach to the problem. However, Mr. Heseltine said, at column 564:it would be the intention of my right hon. Friend the Secretary of State to seek the earliest opportunity to introduce separate legislation for this purpose".Of course, that purpose was to produce a similar situation in Scotland as in England. I think that it is fair enough. Later he said that the position would be clarified in respect of Scotland.
I raised the matter when we discussed the amendments which were returned to this noble House and it was the Minister of State who drew my attention to the statements that had been made in another place. In fact, I had already read them, but he suggested that I read them. I read them again and I have given the gist of them to your Lordships. I suggest that the failure to match that promise in words is the reason for my amendments.
What was the amendment that was made in respect of the English Bill? Very simply they brought in a new category of housing and said that the Secretary of State must be satisfied that the dwelling- 2099 house is designed or specially adapted for occupation by persons of pensionable age and that it is the practice of the landlord to let it only for occupation by such persons. The consequences of my amendments, as taken together, are fairly simple. The provision will read:This section applies to a dwelling-house which has been designed or specially adapted for occupation by an elderly person".Then, I would define "elderly person" as:a person of pensionable age".It will read exactly the same in the Scottish Bill as it does in the English Act. That will be carrying out the pledge that was given by the Leader of the House and by the Secretary of State and which the noble Lord the Minister of State for Scotland suggested that I read and be reassured about. Your Lordships can imagine my surprise when I read this Bill, because it provides nothing like it.
The noble Lord, Lord Bellwin, when he dealt with the new proposal that came from the Commons and commended it to the House said, "It will introduce a new category". There is no new category introduced in the Scottish Bill and anyone who goes through the Scottish Bill will recognise the wording because the wording is lifted, I think, from Clause 4(4) of the Scottish Act where a right of pre-emption was given to local authorities in respect of the sale or resale of a local authority house:except in the case of a dwelling-house which has facilities which are substantially different from those of an ordinary dwelling-house and which has been designed or adapted for occupation by an elderly or disabled person whose special needs require accommodation of the kind provided by the dwelling-house".These words have been lifted out and included here to give the possibility of exercising the right not to sell on the say-so, of course, of the Secretary of State. With all due respect, that is not a new category. The noble Lord, Lord Bellwin, said it was not only a new category but it meant that sheltered housing was automatically out, as it is in Scotland, but that this new category would be determined by the Secretary of State. This is not a new category as regards Scotland; it is just this old category given this new power.
The noble Earl will remember that he gave us a figure as to how many more 2100 people would be covered by this. We should remember that there are 1 million local authority houses in Scotland. The number that will be covered by the Bill as it stands will be about 6,000. The number to which extension of exclusion is given in England and Wales is 221,000. There used to be something called the Goschen formula; if you referred to Scotland, you had the Goschen formula—eleven-eightieths. That lasted until the 1950s, when we had the rate support grant; and it was the equalisation grant before that. That was instead of getting eleven-eightieths of whatever England received. It would be very much to Scotland's advantage financially if it received eleven-eightieths; but that is water under the bridge.
The point is that in proportion to persons there are more local authority houses in Scotland. That is because of the need. It is equally true that in proportion to persons in England and Wales we have more old people. Therefore, one of the biggest problems in Highland areas, the Borders and elsewhere, is to meet the genuine needs of old people. This is also true of rural areas and the whole pattern of movement and retiral from agriculture.
But there is another point in relation to these statistics. There are 184,000 married couples in Scotland where the man is over 65 years of age, and there are 448,000 single people who are over pension age. That makes 632,000 family units, because single people have demands and need housing—and most of them are dependent on local authority housing. The Minister expects us to think him generous with an extension which is much more strict than the English one and which gives an extra 6,000 houses. It is not good enough.
I understand the noble Earl's fears. His fears are for recalcitrant local authorities, reluctant local authorities and local authorities that are downright opposed to the Act—and there are very few local authorities in Scotland that are not opposed to the Act. But certainly the advice that I have given to those local authorities to which I have spoken is that they should obey the law; that once the Tenants' Rights Act is law, their battle is not with the Government, their battle is with an individual tenant. In people's 2101 minds that is very different from a battle with the Government.
I believe that this new Bill, drafted with care but with reluctance, has been (if I may coin a phrase) designed and adapted to meet the special prejudices, suspicions and fears of the men presently in the Scottish Office. I think that it is quite unjustified and quite wrong. The person who has the last word and who has to make the determination before any house qualifies is the Secretary of State. The words that I have used are the words in the English Act, and they are equally concerned about opening the gates too wide. It is exactly the same. With the protections that are there, I am perfectly sure that we could rest content.
I hope that the noble Earl has got rid of his Victorian prejudices for coaches and horses. He almost has a fixation for them. He would have made a splendid accident prevention officer, probably about 150 years ago. As regards my amendment, there is no question of even a Metro or a tractor, far less a coach and horses, being driven through the Bill. These amendments contain the same protections as there are in the English Act. If it was good enough for England, it is all right for Scotland. That is what I am saying, and I am prepared to accept it. I do not know what the noble Earl feels about it.
I have had to redefine "elderly person" because it is in the Long Title and I could not readily change that. That is why Amendment No. 6 has been tabled. An elderly person is defined as "a person of pensionable age." So the words in the clause as amended will be the same as the words in the English Act. I challenge the conscience of all those English Members who wanted Scottish matters to be dealt with on the floor of this House and not somewhere in Edinburgh. Let us be fair to Scotland; let us give the local authorities in Scotland in respect of old people's houses the same kind of exemption as we insisted on for England and Wales. I beg to move.
§ The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)
Does the noble Lord wish to move Amendments Nos. 1, 2 and 3 en bloc, with the leave of the Committee, or shall I put them separately?
§ Lord MACKIE of BENSHIE
I rise to support the noble Lord, Lord Ross of Marnock, in this very important amendment. I am sorry if I repeat some of the remarks he made, but the assurance given to my right honourable friend David Steel in the House of Commons was categorical when the Leader of the House said:On the Housing Bill, it is vital that Scotland and England should be treated equally …".Frankly, this amendment does not go very far towards treating them equally. It deals with the main points, but it omits another vital factor. In Schedule 1 to the English Act it says quite clearly that also exempted are:The dwelling-house which has features which are substantially different from those of ordinary dwelling-houses and which are designed to make it suitable for occupation by physically disabled persons".In the English Act, the sale of the house can be exempted, and the local authority need not sell it. In the Scottish Act, the local authority can certainly buy it back, but local authorities do not always have the money to buy back such houses. At the time a local authority may have spent a lot of money on doing up a house, rightly and properly, for a physically disabled person. That person may then buy the house, and at the end of the day, when the time comes to buy back the house from someone else, the local authority may not have the money available. It seems nonsense to prepare a special facility, sell it and buy it back. Certainly that is in the English Act.
I must say that Schedule I to the English Act states it simply:The Secretary of State shall so determine if satisfied—That is straightforward and simple.
- (a) that the dwelling-house is designed or specially adapted for occupation by persons of pensionable age; and
- (b) that it is the practice of the landlord to let it only for occupation by such persons".
However, I wholly agree with the noble Lord, Lord Ross, that the Scottish Office and Scottish Ministers have extraordinary fears. Surely the people who really require the facility for retiral are in the country areas of Scotland, where there is 2103 no chance of the authorities being particularly hostile in a political sense. They are the people who will suffer. It is extraordinary. I should like the noble Earl when he replies to tell me what this extraordinary wording means. Let me read it again:This section applies to a dwelling-house which has facilities which are substantially different from those of an ordinary dwelling-house and which has been designed or adapted for occupation by an elderly person whose special needs"—not an ordinary elderly person—require accommodation of the kind provided by the dwelling-house".It seems to me to be going to extraordinary lengths.
If the noble Earl can say that this definition will apply to small houses specially provided—small houses; nothing specially adapted about them or substantially different—in a group for retired persons in the country areas of Scotland, in the East of Scotland and in the rural areas, then I shall be surprised. However, if he gives me the assurance that this applies to them then of course I would not support the amendment, but I do not see how it can. It simply cannot do it.
In fact, it borrows largely from the English definition of a house adapted for a physically handicapped person. I do not think that the Government are aware that they have really got themselves over a barrel over it, but I think that noble Lords from the country areas who have the good of the countryside of Scotland at heart ought to support this amendment.
I know, and so do other noble Lords, that the success of agriculture in Scotland and our isolated farms depend largely on the tied house. In our area people are happy to be in tied houses, and to provide their own houses for all these years, because they know that they can get a house on retiral from the council. Our council, for example, has a system with a lot of extra points for retiring farm-workers.
It is an essential part of the life of rural Scotland. Definitely this extraordinary definition here in Section 3A does not in my view include that type of house, and these sections of houses which are presently let as a practice to retired people. I am prepared at the moment to let slide the fact that we do not have the same 2104 facilities for a council retaining houses for handicapped people on which they have spent substantial sums. I think this is the main amendment we must support, and I appeal to noble Lords from country areas on the other side to right this quite apparent injustice.
§ Lord KILMARNOCK
May I rise briefly to support this series of amendments to which my name is also attached. What has gone wrong here is that the formula in the Government's amendment Bill is really a conflation of the arrangement for the physically disabled in Section 3 and for the elderly in paragraph 4 of Schedule 1 to the English Act. The result is that this compilation has come down to us in a—I said conflated, perhaps I should say deflated form, and appears with a certain loss of safeguard and precision en route.
As the noble Lord, Lord Mackie, pointed out there is an extraordinary combination of two concepts in the Section 3A proposed here.a dwelling-house which has facilities which are substantially different from those of an ordinary dwelling-house".That is obviously really intended for the disabled rather than for the elderly. Many old people's homes do not have facilities which are substantially different from those of any other dwelling-house. A far more important consideration in an old person's home is the location of that home in relation to certain services; that is, shops, the post office, or whatever it may be. Therefore, you may have a home which is substantially the same as that for a normal person but it has certain advantages for an elderly person in its location. That type of home would not be covered by Section 3A here.
It therefore seems to me that the series of amendments tabled by the noble Lord, Lord Ross, and supported by the noble Lord, Lord Mackie, and the noble Baroness, Lady Birk, and I in fact achieves three things. It restores the wording in the English Act whereby the landlord's practice to let those houses for that purpose is taken into account, which is not taken into account in the Government's Scottish version. It restores the six-week period of grace for the local authority which has been reduced to only four weeks or one month in the Government's present formula, and it also clarifies, as the noble 2105 Lord, Lord Ross, pointed out the definition of elderly person. Those are three elements of precision which somehow got lost en route and which have been reintroduced by this series of amendments. With those few remarks, I should like to state my support for the amendment, and I hope that many of your Lordships will join us in support of it.
§ 5.56 p.m.
§ Baroness BIRK
I would not put my toes into Scottish waters unless I felt that this was something of such importance that it has much more even than a Scottish dimension. I moved the original amendment on Report on the English Bill, which was accepted and passed by a majority of 35 in this House. Among its supporters there were Scottish Peers, Conservatives, Liberals and Independents. As my noble friend Lord Ross explained, so I shall not repeat it, it then went to the House of Commons. After a certain amount of commotion a compromise was agreed and it then came back to this House.
What I find extremely disturbing, as do other noble Lords who have spoken—and I hope that the other Members of the Committee will also find disturbing—is that this had made the whole thing much more restirctive than it was ever intended to be. When I moved my amendment the Government at the time had an amendment down which was similar to part of the amendment Bill this evening. It referred to:Dwellings which have features which are substantially different from those of an ordinary dwelling-house".It also had the pre-emptive right in it, which this does not have, but as the noble Lord, Lord Kilmarnock, pointed out, Section 4(4) has in fact in the Tenants' Rights, Etc. (Scotland) Act, which my noble friend Lord Ross tried to get changed during the passage of that Act but unfortunately he was unsuccessful. When we looked at the amendment tabled by the Government on the English Bill the Association of Metropolitan Authorities took legal advice. The legal advice was that the words:substantially different from those of an ordinary dwelling-houseimpose such limitations that in practice they do not add significantly to the exclusion already provided for in Section 4 2106 of Schedule 1 to the Bill. That is to the English Bill, but it is almost identical to Section 1(12)(c) in the Scottish Act. They both refer to sheltered houses.
I imagine that the noble Earl will say that this is exactly what he intended; to restrict this, and to narrow it down in this way. But this was not the intention of Parliament. It was not the intention of this House when it voted by a majority for the amendment which I moved at that time. Nor was it the final decision of another place, and nor was it changed when it came back to this House.
If that is looked at, together with the quotation which my noble friend Lord Ross gave from what was said by the Leader of the House in another place and by the Secretary of the State for the Environment, it is absolutely clear to all of us—and I was in the House of Commons listening at that time—that it was intended that there should in this area be parity in the Scottish amendment Bill with the English Housing Act.
On Second Reading the noble Earl said, at column 1912:This procedure is modelled on the procedure now embodied in the English Housing Act".If I may say so, that is taking a tremendous liberty with words and with drafting, because it is nothing of the sort. What is done, as the noble Lord, Lord Kilmarnock, pointed out, is to take the section from the Tenants Rights Act and then include it in this and link it together with the physically disabled. The noble Earl also said on Second Reading that this would free 6,000 more houses. Let us compare the population of Scotland with that of England. If on the English example we were, by the addition of the new paragraph to Schedule 1, to enable 221,000 houses, at the discretion of the local authorities, to be kept for elderly persons, for persons of pensionable age, then around 20,000 should be kept in that way in Scotland. Instead, the noble Earl himself used the figure of 6,000. I am not pretending that either of the figures can be exact, but they do indicate the proportions.
I speak with some temerity, as it is a Scottish Bill, but I do so because it has this much wider dimension and because of our concern, which is a universal one, for the housing of elderly people, whether 2107 it is in Scotland or in England. As the noble Lord, Lord Mackie of Benshie, pointed out, many of the same factors apply in the rural areas, and under this restriction people will be able to buy up houses which it has been the practice to use for old people and use them as holiday homes or second homes. In view of what we have heard today and what has happened before—the tremendous cuts in public expenditure and now in housing, which it is possible will slide forward into Scotland as well—the hope for elderly people, unless they are disabled as well and have these very special needs, is going to be practically nil. Housing for elderly people, which is what we have put forward in our amendment, which is designed or specially adapted—that appeared to everybody to be a fair compromise—is not going to operate at all. The houses will have to be houses really for the disabled and will also be used by the elderly and disabled. I submit that this is not the intention of Parliament and that it would be absolutely wrong if we in this House allowed it to go through in this form. So I hope the House will support the amendment in the name of my noble friend and other noble Lords.
§ Lord GALPERN
I should like to ask the noble Earl, Lord Mansfield, a simple question. Does he really wish to help the elderly people whom we are trying to help by way of this amendment? If he answers, "Yes", then his action is a very simple one. It is to accept the amendment and enable the people for whom we are speaking to be allowed to occupy these houses and not have them being sold. I speak on behalf of the hundreds of tenants in Glasgow who are sitting in waiting for houses of a type not substantially different from ordinary dwelling-houses but which have facilities for occupation by elderly persons. To me, the reason for the insertion of the words "substantially different" gives a clue to what will be the yardstick for deciding whether a house that has been adapted for occupation really is to be excluded by way of sale. If, on the one hand, one is going to argue that it must be substantially different, then it seems to me that a house adapted for occupation or designed for that purpose will equally have to be substantially different; whereas the type of houses that I know of in the 2108 city of Glasgow have facilities but are not specially designed or substantially different. They have facilities which make life easier for these elderly people to be tenants. I hope that the noble Earl will try to help these people who are pleading for help at this particular time.
§ Lord MILVERTON
I hope Her Majesty's Government and the noble Earl, Lord Mansfield, will be able to accept the amendment of the noble Lord, Lord Ross of Marnock. If there is a Division, and if I am still able to be here—probably I shall compel myself to be here—I feel I would wish to support the noble Lord, Lord Ross. Possibly that may not be a surprise to noble Lords. If I remember aright, I was one of those who helped to achieve that majority of 35 which was mentioned by the noble Baroness, Lady Birk. I hope the Government will be able to accept this amendment. If they cannot, then presumably the noble Earl will have to give a very good reason why they cannot.
§ Lord DRUMALBYN
May I ask just one question? Perhaps it is a related question. Can my noble friend confirm that instructions were given to the draftsmen to bring this new Bill into line—this is the right phrase to use; it is the phrase that was used by Mr. Heseltine when asked by Mr. Hattersley what he meant—with the English Bill? When he received the drafts, were he himself and the Secretary of State satisfied that those instructions had been carried out? That is the important thing. It is very difficult for us to be sure how exactly the two Bills match up in the circumstances, in the light of what has been referred to as the technicalities involved. I hope my noble friend will be able to give us that assurance; and, if so, I hope the House will accept it.
I welcome the Government's introduction of this amending Bill, as did the noble Lord, Lord Ross of Marnock, when he spoke at Second Reading on Tuesday night—although he went on to give it what I think might fairly be termed a rather cavalier reception. Since listening to the noble Lord's Second Reading speech, I have taken the trouble to read and re-read the report of proceedings in another place to which he referred In the context of the questions to which the answers he has quoted were given and 2109 the circumstances under which both the questions were put and the answers given, I believe that the undertaking that was given has been met. Seriously, I do not consider that on a careful reading anyone could suggest that there was a specific undertaking to put into the Scottish Act exactly the words that have been put into the English Act. Frequently we all want more from the Government than we get.
I have said that I welcome this Bill, and I believe that it would be a mistake to accept the amendments. I find it quite reasonable, and I suggest to the House that it is so, that the words in Section 4(4) of the Scottish Act, where it deals with the right of pre-emption that may be put into a title where special housing is concerned, are quite appropriate to be put into this new Section 3A which this Bill will import into the Act. It can fairly be argued that Clause 1(2) sets out a clear definition and some sensible and suitable criteria which can be applied. If one watered that down one would surely enter questions of doubt, and difficulties of interpretation might arise. On Second Reading, the noble Lord, Lord Ross of Marnock, took issue with the word "ordinary" and in particular said he did not think he knew what an "ordinary house" was. Surely that word is there to enable the draftsman to do just what he has done, which is to give a clear and unmistakeable definition of what is intended.
The noble Lord when moving the amendment addressed his remarks to Amendments Nos. 2 and 3. No. 2 need not concern me because I do not think the word "specially" has much effect either way. The words in Amendment No. 3 are also a straight importation from the English Act, and perhaps I may be petty for a moment and simply point out that the amendment is technically defective, in that it uses the word "persons" in the plural whereas the subsection of the Bill with which it deals talks about a person. However, no doubt that could be taken care of. I do not think the amendment would be particularly harmful, but it would not improve the situation. We have an example here of what the Minister said on Second Reading; namely, when he suggested that in many respects the Scottish measure has clearer and better wording than the English one. It is the dwelling-house, not the occupant at any 2110 particular date, with which the clause is concerned.
I have a feeling that the amendment, if made, might actually weaken the position of the local authority. It does not say "of a type normally let to an elederly person"; if it had, I might have been able to understand it. The word "only" in the amendment strikes me as counterproductive. There are a number of situations where the amendment could give rise to difficulty, and I will give just one example. What if there were a joint tenancy and the survivor of that tenancy, who was not elderly, was applying to buy? What would then be the situation? Frankly, I do not find this series of amendments necessary. I believe that the words already in the measure suit the circumstances and should be employed in this provision.
§ Lord SOMERS
During my 27 years in your Lordships' House I have known only about three occasions on which amendments moved by the Opposition have been accepted by the Government of the day. I sincerely hope that on this occasion the noble Earl will forget his party principles and give the amendment the support it deserves.
The LORD BISHOP of SOUTHWELL
I wish from these Benches to add my support to this group of amendments. It happens that I have to hold a fairly lone station here this week as my fellow Bishops are all in conclave, but I am sure that if they were here I should have more support. It seems to me to be a matter of vital importance that the law should be the same on both sides of the border and, if I understand the arguments that have been put forward, that is the intention of these amendments. Beyond that, there is also the question of humanity, and I believe that where one is dealing with accommodation for old people as well as for the handicapped, it is right for the Government to err on the side of humanity. I therefore add my support for these amendments and hope the Minister will accept them.
§ Lord HUGHES
I intervene briefly to follow the line taken by the noble Lord, Lord Ross of Marnock, who referred to the importance of the words 2111which are substantially different from those of an ordinary dwelling-housein the Bill as drafted. I agree with him that generally speaking the houses for elderly people in Scotland about which we are speaking are not substantially different, except in one particular; they are smaller and are often houses with a living room and one bedroom. Will the Government say that a dwelling-house of that kind, different only in size from the majority of houses, would come into the category of houses which are substantially different? There are very few of those houses being built nowadays and the waiting lists for elderly people wanting to get into these houses grow longer and longer. In some areas they have stopped putting people on the list, on the basis that it is not much good telling a 66 year-old applying for an old person's house, "Yes, we will put your name on the list but unfortunately the numbers already on the list are such that we cannot expect to give you a house for 12 years".
If any of these houses are going to be sold off, the 12 years may become 20, and it is not much good telling people, "We will take elderly people so long as they will guarantee to live till 85, when their turn will come". On that basis, if the Minister refuses to accept this series of amendments and persuades noble Lords to agree with him, will be undertake that that type of small house will be regarded by the Government as being substantially different from an ordinary dwelling-house? If he will not give an undertaking of that kind, the hulk of these houses will be in danger of disappearing from renting in Scotland.
§ 6.18 p.m.
§ The Earl of MANSFIELD
The Committee is being invited to consider the proposition that the best way to amend Scottish legislation is to borrow verbatim from legislation for England and Wales which is in virtually every respect drafted differently from the Scottish legislation which is to be amended. I hope the noble Lord, Lord Somers, who I do not think took part in our deliberations in the summer, my noble friend Lord Milford and, rising up the ecclesiastical scale, the right reverend Prelate the Bishop of Southwell, will listen to the arguments, which I am afraid have been adduced before your 2112 Lordships on three previous occasions, before making up their minds. This is now the fourth time that we have discussed this particular point. I would say to the noble Lord, Lord Kilmarnock, that the Scottish verbiage and wordage is not borrowed or taken from the English Act. It was drafted specifically by Scottish draftsmen, I think before the English Act was ready, with specifically Scottish law and Scottish interests in mind.
The noble Baroness, Lady Birk, complains of the wording of Section 4(4) of the Act. Whatever legal advice in England she has had upon it, I would tell her that COSLA in Scotland has made no such representations to us. We must try to keep Scotland and England separate in these matters of phraseology and law, at least so far as we can.
Before I deal with the main part of the argument, I want to take two points which detract from it. First, I must repudiate any suggestion that in bringing forward this Bill the Government have in any way failed to honour the undertakings given in the other place before the Recess. As I made plain on Second Reading, the undertaking given on behalf of the Secretary of State for Scotland by the Secretary of State for the Environment was that the change introduced for Scotland would be along the lines of that announced for England and Wales. It has not been quoted, and I want to do so now. It was in answer to an intervention by Mr. Hattersley, who said:It would help if the Secretary of State were to state clearly and categorically that the Government will no longer pursue the sale of those properties that are specifically designed for the use of, and occupation by, the elderly".My right honourable friend Mr. Heseltine said:My right honourable Friend the Secretary of State for Scotland has authorised me to say, as regards the Tenants' Rights, Etd. (Scotland) Bill, that he will facilitate legislation to make a change along the lines that I have announced, at the earliest convenient moment". [Official Report, Commons, 6/8/80, col. 562.]It is extremely important that the terms of the undertaking are precise and right, because it was apparent from the outset that any provision inserted into the Tenant's Rights Act would need to be drafted differently from the amendment then being discussed to the Housing Act, because the two Acts were already drafted in completely different ways.
2113 When, on Second Reading, the noble Lord, Lord Mackie, and his noble friend Lord Thurso complained that this Bill in effect does not apply to houses for the disabled—that is, the Bill your Lordships are discussing this evening—the answer is that such would not only be outside the terms of the Long Title but would be outside the scope of the Bill, and, more importantly, would be outside the scope of the undertaking given in the House of Commons.
§ Lord MACKIE of BENSHIE
The Leader of the House, another Cabinet Minister, said, on the Housing Bill:It is vital that Scotland and England should be treated equally in these matters".There is a substantial difference which is apparent to a number of his friends.
§ The Earl of MANSFIELD
I take the noble Lord's point, or rather I hear what he says, but I think that one was a specific undertaking to a specific question and the other was a fairly sweeping remark which could have applied to almost anything.
§ Lord DRUMALBYN
Perhaps my noble friend would allow me to say that it was not as sweeping as all that. It was immediately qualified by the wordshow that is done becomes a matter of technicalities".
§ The Earl of MANSFIELD
Which we are going into most fully this evening. I do not wish to be unduly critical of the Housing Act, although I am bound to say that I have criticised the drafting of it from time to time, but the provision that was inserted into that Act was drafted within the space of a few hours in the circumstances which the noble Lord, Lord Ross of Marnock, described so graphically for us in his speech on the Second Reading of this Bill. On occasions such concessions to necessity must be made, but it is hardly credible to me that your Lordships should be asked to accept that a provision drafted in such a manner should be preferred to a provision taken word for word from an existing provision in the Tenants' Rights Act, which has the considerable merit of having been through every stage of the normal process of consideration by both Houses of Parliament.
2114 The noble Baroness, Lady Birk, complains about the wording of Section 4(4), to which I shall have to return anon. No such considerations, however, prompted the minds of her noble friend Lord Underhill on one of the many occasions when we discussed this and when he was going into the wording of Section 4(4) on 29th July 1980 at column 779. It is most unfortunate that I cannot, by the Rules of your Lordships' House, quote the noble Lord verbatim, which would be much more satisfactory; I can only paraphrase what he said. He took the phrase "a dwelling-house specially designed or adapted for the needs of disabled persons"; he took the then amendment "a dwelling-house designed or specially adapted to make it suitable for occupation by persons of pensionable age"; he took Section 4(4), which says "a dwelling-house which has been designed or adapted for occupation by art elderly or disabled person"; and then he went on to say words to the effect that every noble Lord in the building would pause and might come to the conclusion that all three were almost the same. I think he accused me then of laughing, but I will gloss over that.
This is an example of how a provision which was carefully drafted and which has been considered by your Lordships on a number of occasions in extenso has now become the object of criticism, particularly by people who have not, as it were, grown up with the Scottish Bill. As regards the types of housing, as understand it the amendment to the English Bill created a new class of housing.
§ The Earl of MANSFIELD
Very well—category. I am obliged to the noble Lord. In other words, before that amendment there was no category between sheltered housing, where there was no right to buy on the part of the tenant, and all other types of housing, where the tenant was granted by the Bill an unfettered right to buy. The English amendment created this third class. In Scotland we already have three categories, and if we adopt the English amendment we would then be creating four without, as I suggest, any reason or justification for so doing.
As I said on Second Reading, the wording proposed in this Bill as a definition 2115 of the category of houses specially adapted for the elderly, who are to be excluded from the right to buy, is taken directly from Section 4(4) of the Act, which gives landlords the right to impose a preemption condition when they sell such houses. The right of pre-emption is well-known and understood in Scottish law, but hardly enters into the scheme of things in the English law of real property. The Government's intention is to extend the landlord's range of choice in relation to such houses so that they can seek authority not to sell as an alternative to selling with a pre-emption condition. In our discussions on the Tenants' Rights Act, as it now is, I emphasised that the Government fully accepted the case for protecting the community's interest in these specially adapted houses, and that the issue was the way in which that interest should be protected. This Bill is about adding to the methods of protecting the community's interest.
Again, I must take issue with the noble Lord, Lord Mackie of Benshie, and indeed the noble Lord, Lord Hughes, in regard to what he said in his intervention. Neither this Bill nor the Housing Act is intended to exclude houses from the right to buy merely because they are small. It never has been, and it was certainly not part of the undertaking. So I hope that that deals with that point. Now—
§ Lord HUGHES
In that case, may I put the question in another way? Will the noble Earl tell us of the type of house that is described as being substantially different from an ordinary dwelling-house and which made up the figure of 6,000, which he apparently quoted at the last stage?
§ The Earl of MANSFIELD
Yes, I am coming to that. All good things have to come to an end, including my speech, but not yet—
§ The Earl of MANSFIELD
I gain that impression from the rapt attention with which it is being greeted by the Committee.
Despite the fact that Section 4(4) was on four occasions thoroughly considered 2116 by your Lordships' House and found acceptable, it is now being suggested that its meaning is obscure. When noble Lords are invited to believe that no one knows what an "ordinary dwelling-house" is, as they were a few days ago by the noble Lord, Lord Ross of Marnock, I should like to invite the Committee to reflect that it is not only in Section 4(4) of the Tenants' Rights Act that the use of that term is considered acceptable. It is used also in Ground 10 of Part I of Schedule 4 to the Housing Act 1980, and since noble Lords opposite clearly consider that that Act is the fountain of all drafting wisdom, that must surely place it as being above suspicion as a satisfactory piece of drafting—
§ Lord ROSS of MARNOCK
I hope that the noble Earl will appreciate that the definition of "dwelling-house" is very different in Scotland from what it is in England. So he should not cite an English Act in relation to a Scottish matter.
§ The Earl of MANSFIELD
I think it was the word "ordinary" that upset the noble Lord last time, and perhaps he should not wriggle about too much when I answer his point on this matter.
There are two categories of specially adapted housing for the elderly which have been recognised in Scotland by Governments of both parties in guidance issued to housing authorities since 1975. These categories are: sheltered housing, which is already excluded from the right to buy; and amenity housing, which this Bill will, without a shadow of a doubt, allow to be excluded from the right to buy, if it is passed in its present form. There is no sleight of hand by the Government in this matter, and I hope that I can persuade your Lordships' Committee that it is a sensible measure and, much more importantly, a sensible way of amending the Tenants' Rights Act; that is to say, to use the definition that the House has already approved in the Act for a very closely related purpose. It is principally for those reasons that the amendments to which the noble Lord, Lord Ross, has spoken are unacceptable.
I am invited to describe these categories of housing. First, at the top of the list comes general needs housing, and beneath 2117 that there is housing with the addition of such embellishments, or adaptations (which I think is a better word) as whole-house heating, grab rails, adjustments to power points, special work-tops, and so on. These constitute what in Scotland are described as amenity housing, a concept which is not recognised in England. We have this category of housing which is quite different from what they have in England. It is this amenity housing that is taken outside the previous ambit of Section 4(4) and put into our new clause in this Bill. Before I conclude I shall describe the effect that it has on the liberty of the local authorities.
I think that I should complete the picture of Scottish housing, and so I come to the third category: amenity housing plus the warden service and the alarm call system, which then turns it into sheltered housing. There, we have provided in the Act that the right to buy does not exist. As I said on Second Reading, in regard to this particular category of house we have in effect given the local authorities more freedom than they had before. In other words, they can refuse to sell; or they can sell with a right of pre-emption; or they can sell without such a condition being part of the bargain.
I want to say to noble Lords who have perhaps implied that the Government are in some way being hard or onerous about this point, that it really is not so. I mentioned the figure of 6,000 houses, which has been held up, somewhat unfairly, against the English total. What I say about that is that, taking like with like, the proportion to be removed from the houses that must be sold by a local authority will be the same as was provided for by the amendment of the noble Baroness, Lady Birk, in relation to the English Act. The houses may be much fewer in number, but I am informed that comparatively speaking the proportion is the same—
§ Baroness BIRK
I wonder whether the noble Earl would write to me about that? I find it very difficult to accept it. There may be some misunderstanding about the figures, but they just do not add up.
§ The Earl of MANSFIELD
They certainly do not add up; they are not really 2118 meant to. It is a matter of comparison, and that is what I am informed. But certainly I shall check my facts.
Why then do the Opposition object to the wording? It is really a question of the rights of local authorities not to sell and on more than one occasion I have said that the drafting of this amendment Bill is fair, that it gives effect to the undertakings which were given in the other place.
I must make the point—though the noble Lord, Lord Ross, twitted me about it—that the effect of the provision as drafted is to make it more difficult for a recalcitrant local authority which wishes to defy the intentions of Parliament to be in a position so to do. The Government have been advised all along that if the amendment that the noble Lord, Lord Ross, now proposes should be substituted for the wording in the clause it could—as on one occasion I said in a perhaps simplistic phrase—drive a coach and horses through the legislation. I shall try to think of another phrase. What I say is that it could be used by local authorities who have said, and said repeatedly, and who even up to last week were still saying, that they would use every device they could to defeat this legislation. It would make their task that much easier. It is in that spirit that I hope that the House will regard this Bill and these amendments to it proposed by the noble Lord, Lord Ross. We have been as fair as we can and consistent, I hope, with the undertakings given and with the general purposes of the original Act.
§ Lord MACKIE of BENSHIE
I should like to be fair to the Minister. I understood him to say that smallness is not included in the category of exceptions, and that he does not accept either the English category, which says that it is the practice of the landlord to let it only for occupation by such persons. I want to be fair.
§ Lord STRATHCLYDE
Having had something to do with housing in Scotland in other years, I should like to speak briefly on this amendment. The Bill as it stands amends the Tenants' Rights (Scotland) Act, and as we read what it intends to do, it gives the Secretary of 2119 State power to authorise refusal to sell certain dwelling-houses provided for elderly persons. I cannot see that the amendments put down by the noble Lord differ greatly from what the Amendment Act intends to be done. I have in mind that it is essential that the Secretary of State should have this power without any alteration whatsoever.
I remember visiting a series of houses built and specially designed by the corporation of Aberdeen for elderly people. It would be a shame if such were able to be bought by other people. They consisted of a large dwelling room which could be divided in half by a curtain. The object of that was that elderly people like warmth and the best way to get them warm was to have heat from the fire in the living room available to the bedroom as well. The bathroom accommodation provided was for elderly people. They could sit in the bath instead of lying down. They could get in and out without trouble. Houses like that built for the special purposes of elderly people should remain so. That is what I think this Amendment Act does. I cannot see much difference in the noble Lord's amendment. It alters the wording but it does not do anything else so far as I can understand it. I hope that we shall certainly stick to the Bill as it stands and not agree to the amendment proposed.
§ Lord ROSS of MARNOCK
I have been interested in the efforts made by the noble Earl the Minister somehow to suggest that I and others have been doing less than justice to what was said by Cabinet Ministers in the other place, suggestions that I have been reading them out of context. The words are all there; there is no question of reading out of context. In relation to the Housing Bill, the first remark was by the Leader of the House that there should be equality of treatment. That was repeated by him—and this was the question of technicalities. The former Secretary of State, Mr. Millan, the Member for Craigton, suggested that it should be done at the same time. The Leader of the House said that it would be done but that how it would be done was a matter of technicality. It could not be done because there was no amendment before the Commons to 2120 effect anything at all about that. That was a false point.
The noble Lord seemed to think we were being unfair to Mr. Heseltine. Mr. Heseltine said the change would be made—and he was authorised to say this by the Secretary of State for Scotland—"along the lines I have announced". What did he announce?The Government have considered the amendment"—that was the one which came from here—and have decided to widen the exclusions so that genuine elderly persons' accommodation is excluded".They then produced the compromise amendment. The noble Lord was critical of the words, critical of the drafting. It was passed in another place and passed here.
There is nothing wrong with the amendment. When it was suggested to Lord Bellwin that certain local authorities would take advantage of it further to widen it, he relied on the fact that the Secretary of State had the last word, that the determination was made by him. I have his speech here. It is a very good speech. My noble friend Lord Shinwell congratulated him on it. I could have done so myself; because he was gracefully accepting the will of Parliament. What the noble Earl is doing tonight is as best he can ungraciously not accepting the will of Parliament, the statements in another place. I am sorry about this. He suggested that I was somehow wrong in talking about an ordinary dwelling-house. An ordinary dwelling-house is practically indefinable. A "dwelling-house" has been defined but I doubt if you will find a definition of an "ordinary dwelling-house". It was not a facetious point that I made in suggesting that the definitions of "dwelling-house" in Scotland and in England are different. I can tell you that it led to some misleading statistics on a census. A dwelling-house is different in relation to the whole dwelling as to whether it is made into flats or not. There are different definitions in Scotland and England in relation to that.
There is another definition that has not been given—and it is not given in the Government clause—and that is, the definition of "elderly". I put to the Minister at the end of the debate how 2121 he defines "elderly"? Here is the answer. He said that the meaning of an "elderly person" depends on the circumstances of the case. It is not necessary to have a rigid definition.
§ The Earl of MANSFIELD
If I may interrupt the noble Lord, I may say that I have not spoken to Amendment No. 6.
§ Lord ROSS of MARNOCK
No, but the whole thing hinges on that. I think this was the whole point. This is why I defined it as it is in the English Bill—persons of pensionable age. What I tried to do, even to putting in the word "specially" in relation to the adaptation, was to be true to what was done in the English Bill and what was passed by another place and by this House. What I come back to is that if there is to be fairness of treatment, this is the only way it can be done.
§ The Earl of MANSFIELD
I must correct the noble Lord over one matter, when he claimed that the Secretary of State has the last word and is what I might call the long stop. Under the legislation the Secretary of State is required to grant authority if the house meets the criteria in the legislation.
§ few seconds. He cannot disregard the criteria merely because the conditions are loosely drafted; so I am afraid the noble Lord must realise that to regard the Secretary of State as in any way able to say what otherwise would be a bad decision on the part of the local authority is quite wrong.
§ Lord ROSS of MARNOCK
I draw the noble Earl's attention to the speech by his noble friend who dealt with this particular point. He did so voluntarily. He was not asked to do so, but he knew certain of his noble friends behind him were concerned about this. He answered the point by saying that this was why it was there, the determination by the Secretary of State. The Secretary of State has to be satisfied. It is also in the clause as I read it.
§ Lord HUGHES
On that point, might I read from subsection (4) where it says:Where the Secretary of State has received an application under this section and it appears to him …".So he does have the last word".
§ 6.50 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 62; Not-Contents, 72.2123
|Ampthill, L.||Elwyn-Jones, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Ardwick, L.||Evans of Claughton, L.|
|Balogh, L.||Galpern, L.||Ritchie-Calder, L.|
|Beswick, L.||Gladwyn, L.||Ross of Marnock, L.|
|Birk, B.||Gosford, E.||Segal, L.|
|Blease, L.||Gregson, L.||Shannon, E.|
|Blyton, L.||Hale, L.||Somers, L.|
|Boothby, L.||Hampton, L.||Southwell, Bp.|
|Boston of Faversham, L.||Hanworth, V.||Stedman, B.|
|Bowden, L.||Houghton of Sowerby, L.||Stewart of Alvechurch, B.|
|Brockway, L.||Hughes, L.||Stewart of Fulham, L.|
|Brooks of Tremorfa, L.||Jacques, L.||Stone, L.|
|Bruce of Donington, L.||Kilmarnock, L.||Strabolgi, L.|
|Cledwyn of Penrhos, L.||Llewelyn-Davies of Hastoe, B.||Taylor of Blackburn, L.|
|Collison, L.||Longford, E.||Taylor of Mansfield, L.|
|Cooper of Stockton Heath, L.||Mackie of Benshie, L.||Underhill, L.|
|Craigavon, V.||Milverton, L.||Whaddon, L.|
|David, B. [Teller.]||Mountevans, L.||White, B.|
|Davies of Leek, L.||Peart, L.||Wigoder, L.|
|Davies of Penrhys, L.||Phillips, B.||Winterbottom, L.|
|de Clifford, L.||Pitt of Hampstead, L.||Wynne-Jones, L.|
|Ailsa, M.||Gainford, L.||Murton of Lindisfarne, L.|
|Amory, V.||Gainsborough, E.||Netherthorpe, L.|
|Auckland, L.||Gowrie, E.||Newall, L.|
|Avon, E.||Gray, L.||Onslow, E.|
|Bellwin, L.||Greenway, L.||Orkney, E.|
|Belstead, L.||Grimston of Westbury, L.||Pender, L.|
|Bessborough, E.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Penrhyn, L.|
|Boardman, L.||Redesdale, L.|
|Boyd-Carpenter, L.||Henley, L.||Reigate, L.|
|Brougham and Vaux, L.||Hornsby-Smith, B.||Rochdale, V.|
|Caithness, E.||Inchyra, L.||Sandys, L. [Teller.]|
|Cathcart, E.||Kemsley, V.||Savile, L.|
|Chelwood, L.||Kinnaird, L.||Sempill, Ly.|
|Cockfield, L.||Linlithgow, M.||Soames, L. (L. President.)|
|Cork and Orrery, E.||Long, V.||Spens, L.|
|Crathorne, L.||Lyell, L.||Strathclyde, L.|
|Cullen of Ashbourne, L.||McAlpine of Moffat, L.||Strathcona and Mount Royal, L.|
|Denham, L. [Teller.]||McFadzean, L.||Sudeley, L.|
|Drumalbyn, L.||Mansfield, E.||Swansea, L.|
|Ellenborough, L.||Margadale, L.||Swinfen, L.|
|Elliot of Harwood, B.||Marley, L.||Trefgarne, L.|
|Falkland, V.||Montgomery of Alamein, V.||Trenchard, V.|
|Ferrers, E.||Mottistone, L.||Vaux of Harrowden, L.|
|Ferrier, L.||Mowbray and Stourton, L.||Wynford, L.|
On Question, amendment agreed to.
§ 6.57 p.m.
§ Lord DENHAM
I think that it may be for the convenience of the House if we take the Statement now. Therefore, I beg to move that the House do now resume for the Statement.
§ House resumed.