§ 6.43 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield)
My Lords, I beg to move that the Report be now received.
§ Moved, That the Report be now received.—(The Earl of Mansfield.)
The MINISTER of STATE, MINISTRY of AGRICULTURE, FISHERIES and FOOD (Earl Ferrers)
My Lords, before the House begins the Report stage of the Bill, it is I think correct that, on behalf of the Leader of the House, I should tell the House that I have been advised that Amendment No. 1 in the name of the noble Viscount, Lord Thurso, and others, is irrelevant to the subject-matter of the Bill.
The purpose of this Bill, which is described in the Long Title, is to bring the law in Scotland into line with that in England so far as dwelling-houses for elderley persons are concerned. Amendment No. 1 in the name of the noble Viscount, Lord Thurso, proposes to extend the Bill's provisions to dwelling-houses which are suitable for occupation by physically disabled persons. I am advised that such an amendment is irrelevant to the very limited subject matter of the Bill.
I must remind the House that the Companion to Standing Orders states, on page 114, that amendments must be relevant to the subject matter of the Bill, and I hope that this advice will be seriously considered by the noble Viscount before he moves his amendment.
I would emphasise, lest your Lordships might conceivably think otherwise, that I make this statement in the nature of and on behalf of the Leader of the House rather than as a member of the Government. I must emphasise that this is a matter for the House, but I thought it right that the House should be aware of the advice which I have received.
§ The DEPUTY SPEAKER (The Earl of Listowel)
My Lords, before I call Amendment No. 1, I should point out to the 485 House that if this amendment is agreed to, I cannot call Amendments Nos. 2, 3, 4 or 5.
§ Clause 1 [Secretary of State's power to authorise refusal to sell certain dwelling-houses provided for elderly persons]:
Viscount THURSO had given notice of his intention to move Amendment No. 1:
Page 1, line 11, leave out from ("to") to end of line 16 and insert—
§ The noble Viscount said: My Lords, I realise that there is a heavy task imposed upon me to justify the introduction in your Lordships' House of Amendment No. 1 which I propose. I am grateful to the noble Earl, Lord Ferrers, for pointing out to me the difficulty which I face in seeking to do so. I am, however, encouraged to do so because I believe that it can be shown that it is not immaterial or irrelevant, because I think that there are precedents for the alteration of Long Titles to Bills introduced in your Lordships' House; and also because the intention of the Government would not in any way be harmed by an alteration to this particular Long Title.
§ As your Lordships can see, it becomes increasingly difficult for me to argue the relevance of what I have to say without saying it. It is extremely difficult to debate whether what I wish to say is relevant without letting your Lordships have an insight into my mind. Therefore, I think that all that I can do is to ask your Lordships whether you will allow me to proceed to argue the case both of relevance and of the subject matter being material to the purpose of the Bill and, at the same time, to develop the argument which I would have developed in support of the amend- 486 ment. At the end of that, I submit that the only real test is to ask your Lordships whether you will accept what I have to say and allow me to develop this argument and whether your Lordships will agree, when you have heard what I have to say, that indeed the amendment is material to the Bill.
§ Lord BLAKE
My Lords, I wonder whether I may say something on this matter? I rather hope that the noble Viscount will not proceed on these lines. The point is that we have had an opinion expressed on behalf of the Leader of the House that this amendment is not relevant to the Title of the Bill. I shall not try to argue about that at this moment, but it seems to me that, having an opinion of that sort by the Leader of the House expressed by my noble friend Lord Ferrier, it would be wrong for us to proceed in this way, and it would possibly be treating the House with not quite the courtesy that it deserves if we proceed in this way. A clear opinion has been expressed. After all, in this House we do not have the advantage, or disadvantage, whichever it may be, of a Speaker; and so we must to some extent be guided by opinions of this sort. Therefore, in these circumstances, I would hope that the noble Viscount would not feel that he ought to proceed.
§ Lord FERRIER
My Lords, as one who is rather sympathetic to the amendment which is proposed to be moved by the noble Viscount, would it be in order, as this is a House of Lords Bill and as it originates in this House, for me to suggest that the Title might be varied in order to overcome the objection which the noble Lord the acting Leader has voiced?
§ Baroness ELLIOT of HARWOOD
My Lords, I remember that when I was chairman of a housing committee in Scotland very often we used to alter houses for really handicapped people by installing ramps, larger doors, different lavatories and so on, perfectly easily under the existing legislation. There was no difficulty at all. It was simply proposed to the committee and the committee agreed to it or not as the case might be. It is totally unnecessary to have any more legislation concerning houses for handicapped, old people or anyone else, because 487 such houses can be altered under existing legislation. If I am wrong, perhaps my noble friend will tell me. However, I was able to do all that I wanted to do for handicapped people, with no difficulty at all.
§ Baroness MASHAM of ILTON
My Lords, I should like to ask a question. Following on from that, why was this put in the English Act? The worry is that it is in the English Act and not in the Scottish Bill. What my noble kinsman Viscount Thurso wants is the same as is in the English Act.
My Lords, perhaps I could just make one or two remarks on that point. I think that my noble friend Lady Elliot of Harwood is under a misapprehension as regards one matter. It is not whether it is possible to do what the noble Viscount wishes to do in his amendment under existing legislation. What is under discussion is whether, in fact, the amendment should be moved at all, irrespective of what it contains. The noble Baroness, Lady Masham of Ilton, said that the English Act contains certain provisions which the noble Viscount, Lord Thurso, wishes to see contained in Scottish measures. That may be, but we are in a difficulty here and I think that the noble Viscount is treading on somewhat dangerous ground, because in another place they have a Speaker, and the Speaker decides what is within the scope of a Bill. If an amendment is tabled which is not within the scope of the Bill, the Speaker disallows it. In your Lordships' House we have no Speaker; we have no scope; but we do have relevance, and it is determined what is relevant and what is not. If it is determined that a certain amendment is outside the relevance of the Bill, I suggest to the noble Viscount that he is on very dangerous ground if, notwithstanding that, he then says that he will press his amendment.
Of course, your Lordships are entirely entitled to run your Lordships' House as your Lordships think fit. The noble Viscount is quite right: there have been precedents for altering the Long Title of a Bill, but those have been in different circumstances. There have been precedents where amendments which were tabled and which it was decided were outside the relevance of the Bill, have not 488 been pressed. I would cite the Life Peerages Bill 1957, the Administration of Justice Bill 1967, the Criminal Justice Bill 1972 and the Rent (Agriculture) Bill 1976. In all those cases amendments were tabled which were then found to be outside the relevance of the Bill and in each of those cases the amendments were, therefore, not moved.
I would ask the noble Viscount to consider the matter very seriously, not because of the content of the amendment but because of the respect which the noble Viscount has for the proceedings under which your Lordships' House operates. I fear that if the noble Viscount, feeling as strongly as he does, nevertheless were to move these amendments, others in due course might move any other amendments to any other Bills, irrespective of what the relevance might be. I think that the noble Viscount would be touching on dangerous ice which, in the long term, I think he would prefer not to do but to retain the respect of the House as a whole.
§ Lord FERRIER
My Lords, with due respect to the noble Earl, he has not answered my question whether it is open to us to comply with the ruling of the Leader of the House by varying the Title so that it does admit this.
My Lords, the alteration of the Long Title of the Bill is dependent upon the incorporation of the amendment. All I would say to my noble friend Lord Ferrier is that in the end the House is responsible for its own operations and if your Lordships choose to disregard what is relevant, that is a matter for your Lordships. All I am saying—and I am giving this to your Lordships as impartial advice—is that we are on very dangerous ground as a House if we start accepting or considering amendments which are irrelevant to whatever Bill may be before your Lordships.
§ Lord ROSS of MARNOCK
My Lords, I think that we are in this difficulty because of the words that were used in another place by the Leader of that House when he said, at column 528 of the Official Report for 5th August:On the Housing Bill it is vital that Scotland and England should be treated equally in these matters".When the noble Viscount, Lord Thurso, saw me I think I reeled out to him exactly 489 what was the practice in the other place which the Acting—may I call him?— Leader of the House has laid down to him. I am completely new to this House and to its procedures. I should not like to do anything wrong or suggest that other people should do so.
But one thing has struck me. During the Committee stage we came to the point where it was put to the Committee, "That this be the Title to the Bill". At that stage were we in a position to alter it, or were we not? Even in the short time that I have been a Member of this House I can remember a Bill in which the Title has been altered. Is that the prerogative only of the Government? If the Government were to rise and say that they accept these amendments, would they be in order? This is a Government point and not a point for the Leader of the House. Would the Government thereby put us in order and say that they, and they alone, can lead the House in respect of changing the Long Title?
§ Lord FERRIER
My Lords, is my suggestion not valid, that we might make the variation in the Long Title which the noble Viscount suggests?
§ Lord MACKIE of BENSHIE
My Lords, perhaps I could add to the argument. I think that this is very relevant to the intentions of the Government as expressed in another place, and to the understanding put upon them by many members of this House, who are extremely concerned. In fact, the relevant section in the English Act, with which it was intended to bring the Scottish Bill into line, mentions "disabled people" as well. This is a matter which concerns many people in the House. It appears to me that if there is a precedent for altering the Title to bring it into line with the wishes of the House, it might well be that if it is the wish of the House, my noble friend Lord Thurso might proceed with his amendment.
§ Viscount THURSO
My Lords, at this stage I am obviously in the hands of your Lordships' House. I can only point out that although we do not have a Speaker and although we do not have the same sort of clear-cut regulation that applies in another place, we do have the supremacy of the House as a whole. Therefore, if 490 your Lordships choose to do something, your Lordships can say "This shall be done". I do not wish to transgress, to tread upon difficult ground, or to do anything which your Lordships would find distasteful or improper. But in quoting precedents, the noble Earl, Lord Ferrers, left out the Protection of Aircraft Bill, which was amended by the Government to cover airports as well as aircraft, and this was justified on the ground that the purpose of the Bill was to protect aircraft, which could not be done without provisions affecting airports.
In moving this amendment, I would hope to demonstrate to your Lordships that its purpose is to help elderly people—in other words, people of pensionable age—but unfortunately in doing so it would place at risk certain people who would be covered by the existing wording.
The purpose of the Bill was surely described in another place by the Leader of the House of Commons when he said, on 5th August, at column 527:On the Housing Bill it is vital that Scotland and England should be treated equally in these matters".And, again, 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. If there is agreement in principle the technicalities question is secondary".If we were to assume that it is the intention and wish of the Government to deal with elderly people on an equal basis, in the way they have already been dealt with in the Housing Act 1980, then I feel it is up to your Lordships to consider the possibility of this amendment. I really ask your Lordships to give me leave to debate this amendment, and if it finds favour with you, to move it in your Lordships' House.
§ 7.2 p.m.
My Lords, I wonder whether I might be permitted to make one further observation over this, with the leave of the House. I quite understand what the noble Viscount wishes to do, and I wish him and the House to understand that anything I may say is not said as a member of the Government at all but simply to try to guide your Lordships to do the right thing. The noble Viscount said that if your Lordships wanted to do something then your Lordships can. Of 491 course, this is perfectly true because our rules of order are very lax, but it is only because we stick corporately to the rules of order that business has any chance of succeeding.
The noble Viscount said, "Well, it was the intention or the wish of the Government to cover handicapped people as well as elderly people". That may be so or it may not be so; the point is what the Bill says. The Bill says it refers to elderly persons. The advice I have received is that such an amendment as this is outside the relevance of the Bill as it is drawn whether it is the way the Government intended it or not. I think it was the noble Lord, Lord Ross of Marnock, who said, "Can the Government alter it?" The answer, so far as I understand it to be, is no, not if it is outside the relevance of the Bill. That is the advice which I would suggest we ought to be guided by. But if your Lordships say no, on this occasion we do not want to take the advice; we want, as it were, to do our own thing, then of course your Lordships are entitled to do it. But I think that the precedent is a bad one.
§ Viscount THURSO
My Lords, it seems that the real problem which exercises the noble Earl, Lord Ferrers, in his capacity as Leader of the House at this moment is the question of dealing with disabled persons in this particular amendment. If, however, I were to move a manuscript amendment to this amendment leaving out paragraph (a), would he not agree that it would be perfectly competent to move (b) and (c)?
My Lords, I would have to consider that. I was not addressing myself to the type of amendment but merely to the fact of what the amendment said. If the noble Viscount wishes to change an amendment, that is up to him. I would only refer to one other thing which I meant to refer to before, and that is that a certain noble Lord asked, was it not possible to alter the Long Title of the Bill? The answer is that it is possible to alter the Long Title of a Bill provided that the amendments are relevant to the subject matter of the Bill. In some cases in the past Long Titles have been altered, but only when the amendments were relevant to the subject matter of the Bill.
§ Lord ELWYN-JONES
My Lords, the noble Earl the Deputy Leader of the House has indicated that he has taken advice on this matter to see whether what is proposed would mean compliance with the rules of the House and the rules of relevance. I think the House would indeed be moving on a somewhat slippery slope if we decided now that such advice and such guidance from the Leader of the House is a matter that we can ignore without peril to the future conduct of the business of the House. I say that with every sympathy for the noble Viscount.
It may well be that if he had taken this initiative at an earlier stage in the proceedings of this matter the situation would be different. But I suggest that as a matter of the procedure of the House we would be better advised to accept the guidance we have received from the acting Leader of the House, not as a distinguished Minister in the Government but as Leader in the House. I hope that that course may be followed.
§ Lord FERRIER
My Lords, it is only in order to agree with the noble and learned Lord that I made the suggestion that I feel we must be guided by the Leader of the House unless we can alter the amendment.
§ Viscount THURSO
My Lords, I do wish to be guided by the Leader of the House and I asked him for guidance. I asked him whether it would be competent for me to move a manuscript amendment leaving out paragraph (a) from my amendment, which is:a dwelling-house whose features are substantially different from those of ordinary dwelling-houses and which are designed to make it suitable for occupation by physically disabled persons",and keeping in the two paragraphs which relate to elderly persons. If I do that, it would seem to me that this then is relevant and competent and I could speak to the whole matter, and in parenthesis explain to your Lordships why I am sorry that I would have had to leave out paragraph (a).
My Lords, it is a curious procedure to adopt when we come to Amendment No. 1, to move a manuscript amendment to No. 1 which has not yet been written out so that noble Lords 493 know what they are in fact doing. It would be a curious procedure. It may be that if the noble Viscount were to leave out paragraph (a), as I understand it the other provisions might be within the relevance of the Bill. That is a very cursory and immediate answer. But again with respect to the noble Viscount, the point of manuscript amendments, if I am correct, is that they should be written down so that your Lordships should know exactly what your Lordships are discussing. It might be slightly premature to alter it like this, but if it were done I think that the remainder probably would be within the relevance of the Bill.
§ Viscount THURSO
My Lords, I have had a little personal experience of this manoeuvre because I once had to do it before when I was introducing a Bill in your Lordships' House. I have therefore amended the amendment, so that it can be laid upon the table in your Lordships' House, simply by crossing out (a) and writing "a" instead of "b" and "b" instead of "c". I am perfectly prepared to lay this amendment on your Lordships' Table as a manuscript amendment, if that is the pleasure of your Lordships' House.
My Lords, as the noble Viscount is such a professional at getting round difficult situations, and indeed in putting others in difficult situations, I might respectfully suggest to him that on the next occasion he might think a little earlier so that we could all be put into less of a confusion. As I understand it, if the noble Viscount were to be kind enough to lay that piece of paper on the Table, your Lordships could probably discuss the amendment in its amended form. But I respectfully suggest to the noble Viscount that it would be helpful if this could be done a little more expeditiously and a little more in advance.
§ Viscount THURSO
My Lords, you have indeed been kind to me, and I am very sensible of it, but I plead that in this particular instance we have not had a great deal of time for working things out. If I have been a bit slow in coming forward with things, I plead that we have been under some pressure in this particular matter.
My Lords, I believe we are still debating the Question, That the Report be now received, curious though that may seem.
§ On Question, Motion agreed to: Report received.
§ 7.10 p.m.
Viscount THURSO moved the following manuscript amendment:
Page 1, line 11, leave out from ("to") to end of line 16 and insert—
§ The noble Viscount said: My Lords, in moving this amendment, I wish to make it quite clear that we on these Benches are not in any way against the principle of the sale of council houses to sitting tenants. Far from it. We support the principle and we therefore support much of what is in the Tenants' Rights, Etc. (Scotland) Act, but we recognise that legislation cannot be considered solely in terms of pure black and white; there are good and bad things to do. What is in general desirable has often to be modified by what is necessary or desirable in certain particular or exceptional instances.
§ That is why we were so pleased to learn that Her Majesty's Government recognised that the Tenants' Rights, Etc. (Scotland) Act needed to be modified to take account of the secial needs of the elderly and of the duties of local authorities towards them, and that this Bill, the Tenants' Rights, Etc. (Scotland) Amendment Bill, was to be brought before your Lordships in an endeavour to treat England and Scotland equally in these matters. The problem with which the Bill seeks to deal is simply that we have already laid it on the shoulders of local authorities to provide for the special housing needs of the elderly. Therefore, to allow houses which they have specially adapted, built or sited so as to be able to discharge those duties to be arbitrarily or compulsorily taken out of their stock 495 by purchase would not merely impair their ability to do so but would also be a foolish waste of public money. We were consequently bitterly dsappointed, when we read the Bill, to see that it clearly failed to achieve the objective laid down by Government spokesmen in another place.
I give credit to the noble Earl, Lord Mansfield, for meaning well, but I must point out to him that his well-meant efforts to include the elderly and disabled—and I read the Bill as including the disabled—in a single sentence so severely restrict the scope of the Bill as to make it fall completely short of its objective and of the assurances and undertakings given by the Government in another place. In the Housing Act 1980, which applies to England, three categories of house are excepted from the right to buy: first, houses adapted or designed for the physically disabled; secondly, groups of dwelling-houses designed for the elderly and provided with special facilities—so-called sheltered houses; and, thirdly, houses designed simply for occupation by the elderly; in other words, the ordinary one-or two-apartment old person's house. The house described in this Bill—
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 require accommodation of the kind provided
—is not exactly any of those described in the Housing Act 1980. It is a shadowy amalgam of all three and, in so being, succeeds in being none of them. It is not a house for a physically disabled person; it is not a group of sheltered houses; it is not an ordinary old person's house. By being a little bit of each it becomes not entirely any one of them.
§ As I said, I gave the noble Earl, the Minister of State, the benefit of the doubt and began to consider whether I could not help him to improve the Bill so as to achieve what I understood to be the Government's intention. Frankly, however hard I wrestled with forms of words, I found it impossible to write into one sentence a clear and all-embracing description of the categories of house which it was intended to except from the right to buy. This of course is because of the differences which exist between the English 496 and Scottish Acts. The only clear, clean and logical way I could find to amend the Bill was, it seemed to me, to use the wording employed in the Housing Act 1980. That was the only precise way by which the Government's promise to treat England and Scotland equally in these matters could with certainty be achieved, and that is how I set about drafting my amendment.
§ I know the Minister of State will criticise my amendment on many grounds—the original amendment, the forerunner to this manuscript amendment, has already been criticised on the grounds of being irrelevant—and I have no doubt that the noble Earl will tell me that, so far as physically disabled persons are concerned, I should content myself with the preemption clauses which are in the Scottish Act. However, we are not debating that point now. My information is that the organisations interested in the welfare of the disabled and of people who require shelter, in particular Shelter Scotland, would be behind the intention of the amendment.
§ The refusal of the right to buy provision is, I would say, not more drastic than the pre-emption provision; it is more honest, more clearly understood and more certain in effect. Local authorities are not forced to refuse to sell if their stocks of specially adapted houses are adequate, any more than they are forced to include a preemption clause in a missive of sale. But the categories we are now considering—genuine one- and two-apartment old people's houses, sited where the noble Baroness, Lady Elliot, would have put them when she was on a local authority, and built, as they would have been built, by local authorities all over Scotland—will be saved from going out of the housing stock and saved from the danger that, if they did and they were offered for preemption at a time of financial stringency, it would not be the misfortune of the local authority to be able to find funds to buy them back again. Seriously and sincerely, I recommend the amendment to your Lordships. It should commend itself to fair-minded persons of all parties and to those with no particular party affiliations, and therefore I appeal to noble Lords in all parts of the House for their support in the amendment. I beg to move.497
§ 7.20 p.m.
§ Lord KILMARNOCK
My Lords, I do not want to detain the House by repeating arguments advanced at the Committee stage, but I have been through the recent history of this little Bill with considerable care, and it seems to me that on any reasonable interpretation of what was said by the Secretary of State for the Environment in another place, certainly the spirit of the intention that was declared there was to put Scotland on a par with England and Wales in this matter. I have also scrutinised very carefully the speech made in Committee by the noble Lord, Lord Gray, whom I am sure all noble Lords in this House respect enormously for his textual accuracy, but it still did not seem to me that he had really made his point.
From my own reading of all these matters I am convinced that there is still one very important element which was in the English Act but which has not appeared in the formula put before us by the Government in this Bill; namely, the exclusion of those houses which it was the practice of the landlord to let for elderly people. I have said in Committee, and I shall say again very briefly—or perhaps I should turn to the noble Baroness, Lady Birk, who said it even better in Committee—that the Bill as proposed at the moment removes any hope for the elderly people unless they are disabled as well and have very special needs. As we all know, not all elderly people are disabled, and not all the houses occupied or designed for elderly people are substantially different from those in which the rest of the community live. They all have doors, windows, et cetera. As I think we have said before, one of the most important considerations for an old person's home is its location in relation to the various amenities that the old person will need; that is to say, shops, transport, et cetera.
By the proposed new Section 3A as it stands in this Bill at the moment those houses which are conveniently sited for elderly people will simply be excluded, and to my way of thinking that is the most important reason for supporting this amendment moved by the noble Viscount, Lord Thurso.
§ Lord MACKIE of BENSHIE
My Lords, I know that the Minister the noble 498 Earl will say that he is tired of repeating the arguments, and perhaps I am, too, but I think that they bear repeating. The fact is that everyone admits that the intention expressed and the promises given in the other place were to the effect that Scotland should be brought into line with England, and I make no apology for once more repeating that this Bill simply does not do that. All it does is make the clause referring to elderly people infinitely stiffer than anything that is contained in the English Housing Act. In fact my noble friend, although apparently mistaken, had some excuse for bringing disabled persons into this Bill, because in fact the wording used in the Scottish Bill to amend the Act is that which is used partly in the English Act in relation to disabled people. A promise was given to bring the Scottish legislation into line with the English Act, which says quite clearly that a disabled person's house, on which money has been spent to make it substantially different from ordinary dwelling-houses and to make it suitable for occupation by physically disabled people, will be exempted from the right to purchase. The Act goes on to refer to circumstances wherethe dwelling-house is designed or specially adapted for occupation by persons of pensionable age; and … it is the practice of the landlord …".The wording of the Bill that we are now discussing is:The 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 "—I stress that reference to "special needs"—require accommodation of the kind provided by the dwelling-house".Quite frankly, this is not a creditable manoeuvre, and I think that it arises from a distrust of labour councils in Scotland, which may be quite rightly felt—I do not know. But certainly this wording does not bring the Bill into line with the English Act, and in my view it places at great risk a large number of people in Scotland who expect retirement houses. Quite frankly, I think it is scandalous that the Government are persisting with what I regard as a perversion of their promise given in the other place.
§ Lord ROSS of MARNOCK
My Lords, I sympathise very much with the noble 499 Viscount who has tried to secure for the disabled in Scotland the same treatment as is contained in statute for England and Wales. I know that if we cannot do it here, he will continue his efforts elsewhere. But generously he ended the argument with a manuscript amendment. What does that manuscript amendment leave us with? It leaves us with words that are exactly the same as those in Schedule 1, Part I of the Housing Act applicable to England and Wales, in respect of the group of dwelling-houses which are the sheltered houses. It could be argued by the Minister of State that these houses are already covered in the Scottish Bill. I think that I would agree with him there.
In what is now paragraph (b) of the amendment there is repeated word for word the reference to houses to which in England exception is to be given. One should think that if that satisfied all the legal minds of the Government, it was right. The noble Lord, Lord Bellwin, is a very discriminating man who knows something about local government, and if it satisfied him, one would think that it might be regarded as applicable to, and acceptable to, people in Scotland as well. There is nothing technical about any of the phrases—nothing at all.
Of course, the Minister of State is an English lawyer. I do not know whether or not he is speaking to the noble Lord, Lord Bellwin—because he described the English words as "baby language". Well if the paragraph is simple, if it is understood by even children, it is something new in legislation, and it is to be commended, because most legislation is written in such words that no one can understand it. But the noble Lord, Lord Bellwin, had no difficulty in translating it when he came to recommend it—and remember, my Lords, it was drawn up by the Government. That was when the amendment came back for consideration by the Lords. The noble Lord, Lord Bellwin, said, at column 1601:The paragraph will apply to any dwelling-house which is designed or specially adapted for occupation by persons of pensionable age and which it is the practice of the landlord to let only for occupation by such persons".That is exactly what the noble Viscount has put down in his amendment; and we must compare that with the words that 500 he seeks to leave out. There we have wall after wall erected to restrict the number of old people's houses that will be exempt. First, the facilities have to be "substantially different". There is none of that in the English clause. They have to be "designed or adapted"—yes, that is there; "special needs"—no, that is not there.
The noble Earl the Minister left out what the noble Lord, Lord Bellwin, thought was important in order to prevent the noble Minister's coach and horses driving through the gateway. The noble Lord, Lord Bellwin, said, at column 1600:There is no mystery about the reason for introducing the requirement for a determination before a dwelling is to be treated as exempt. It is intended to remove the scope for reluctant local authorities".So all the features that the Government say they desire are contained in the amendment and in what we leave in the clause.
There is no doubt about the importance of this with an ageing population. That ageing population (forgetting the present unemployment affecting young people), not having the benefits that the younger people have had in the Scotland of today, is very much in need of assured housing, and the only place it can get it is from the local authority, whether it is in the town or whether it is in the countryside. I know many farmers, I know many landowners, and those who have served on county councils in Scotland will know that they can count on local authorities to be helpful when someone has got to get out of a tied house. But that will change if the stock of houses is not there—if they are bought and then they are sold maybe to someone from outside. The protections we have in subsection (4) for the countryside just do not match up to the demands either of Members of this place or of local authorities. I quoted the number of units—that is, married couples or the elderly, maybe widows or spinsters, widowers or bachelors—and the number is 632,000 units in Scotland. The Minister has said that his provision here will give us another 6,000 houses. My Lords, 6,000 houses! It does not begin to look at the need in even one city in Scotland.
Now I do not know what has got into the Scottish Office. Are they frightened?
§ Lord ROSS of MARNOCK
Now we know: it is the noble Earl who has got in, with his coach and horses and with his gateways which must be barred against those coaches and those horses driven by mad district councillors! And then he forgot to clear some of the other little openings, he was so obsessed with his coach and horses; but we will come to that later on. But surely to goodness even he appreciates that what is being left to local authorities does not meet the need. We are told that the English amendment gave to the English authorities an extra 221,000 houses, and yet we Scots have got to be satisfied with 6,000. If we go away from definitions under the same categories of housing, there is no justice in that. Scotland is not being treated along the same lines. I see the noble Lord, Lord Strathclyde, there. He will remember that everything used to be quite clear in relation to Scotland and England. We got eleven-eightieths. If by any chance they built an extra 80,000 houses, there appeared an extra 11,000 in Scotland, and no reason was given. It was just the automatic working of the Goschen formula.
§ Lord STRATHCLYDE
My Lords, as the noble Lord has mentioned me, perhaps I may say to him that I am distressed to listen to his argument, which seems to me to prove conclusively that you cannot trust the local authorities in Scotland to do the right thing by the citizens they look after.
§ Lord ROSS of MARNOCK
I am afraid that is a bit beside the point on this particular amendment, my Lords, for the simple reason that although we are dealing here with a clause we are amending only a part of it, and the important part, as Lord Bellwin said in relation to the English Bill, is that the determination by the Secretary of State remains. But on the simple point, 221,000 for England and Wales, Scotland, 6,000, it does not meet the need. In population terms our need is even greater. In terms of the countryside, our need is even greater.
I do not think the Minister of State should be very proud of what he has done in respect of this Bill in coming 502 along and saying, "The category is the same; it just happens that we are going to get less than our share". What really matters is the stock of houses available to the local authorities for letting to old people, be it in the town or in the countryside. That is why my amendments later on are slightly different, because if everything he says is right, it is still wrong and still not doing justice to Scotland. But I am prepared to trust to the English words, and I would be prepared to vote for this particular amendment and commend it to the House.
§ 7.35 p.m.
§ The Earl of MANSFIELD
My Lords, there are, as I see it, two parts to this debate. There is, first, the desire of some noble Lords, at any rate—and I say that knowing that they have the sincerest and most honourable motives—to improve the Bill, as they see it, because they think that it will be fairer, more just and, as it were, do a better job for Scottish housing. I respect those motives. There is also the argument as to whether the Bill as it stands gives effect to the undertaking which was given by Mr. Heseltine in the House of Commons that certain things would be done—and I use those words advisedly.
Now the noble Lord, Lord Mackie, in terms which I have never had addressed to me before on a personal basis, accuses me, in effect, of being scandalous, perverted and discreditable, which I suppose I could take exception to if I thought that he was being really serious about it; but I do not. What I am serious about is that if we are going to have regard to this undertaking we cannot just wave a copy of Hansard about and say that undertakings were given, vaguely, to bring Scotland into line with England, because they were not. What was done was done absolutely specifically, and this legislation was subsequently drafted in compliance with that undertaking and consistent with the drafting approach which has been adopted all along in relation to the Tenants' Rights, Etc. (Scotland) Act, and having regard to the different situation, different categories of housing stock and different law on real property in Scotland.
My Lords, may I deal first of all with the desire of the noble Viscount to improve the Bill by his amendment? We have 503 already been over this course on a number of occasions on similar and almost identical amendments, and I do not think that I can really contribute very much to that, although I shall have to say a little. But if I may come back to the assurance in col. 562 of the Official Report of Wednesday, 6th August, Mr. Hattersley 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".That, I think, is a straight question in plain English. It is not a question which is in any way blurred round the edges. Lower down in the same column 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, Etc. (Scotland) Bill, that he will facilitate legislation to make a change along the lines that I have announced, at the earliest convenient moment".
§ Lord ROSS of MARNOCK
My Lords, will the noble Earl allow me to intervene? Would it not be helpful if we knew what was the Statement that he announced? It was that the Government had decided to widen the exclusion so that genuine elderly persons' accommodation is excluded.
§ The Earl of MANSFIELD
My Lords, genuine elderly persons' accommodation is excluded—not little houses. I say that the undertaking goes back to Schedule I to the Housing Act 1980 and, without doubt, goes back to paragraph 5; and that must be quite clear. I say that it was never an undertaking to bring the two Acts into line in every respect concerning housing for the elderly. Paragraph 4 of that Schedule, for instance, which is really part of this amendment, is closely tied with the housing which is described in Section 1(1l)(c) in contemplating in the vast majority of cases that it will be the equivalent to our sheltered housing.
§ Lord MACKIE of BENSHIE
My Lords, I wish to remind the noble Earl, when he talks about genuine elderly persons, that he accepted an amendment from the noble Lord, Lord Ross of Marnock, saying that that meant persons of pensionable age.
§ The Earl of MANSFIELD
My Lords, I try to help. I do not know why; but 504 I try. What I am now talking about is the houses. I say that as far as the generality is concerned it is really unreasonable to change Scottish provisions in this House. We have matters which have been the subject of representations in Scotland. They have been open to comment from the Scottish local authorities and others who take an interest in the drafting of legislation. The time when we should argue over matters of drafting—which is what this is—is long past. We did so at considerable length in the House on a number of occasions over the matter of sheltered housing and decided that we should adhere to the words as in Section 1(11)(c).
I appreciate that, as the noble Lord, Lord Kilmarnock, said, our definition leaves out paragraph 5(b) in Schedule 1:that it is the practice of the landlord to let it only for occupation by such persons".I say to him that is more restrictive than what we have in this Bill. No such provision is there. Therefore providing the house comes within the definition it does not have to be the practice of the landlord to let it only for occupation in that manner. I anticipate that the noble Lord, Lord Ross, has tabled a series of amendments which I can comment on perhaps in due course; but I am criticised, (and have been criticised quite a lot), in effect for being over-suspicious as to the intentions of the Scottish local authorities, or some of them. I shall have something to say about that later.
On the arithmetic, I think it was the noble Baroness, Lady Birk, who, on the last occasion a few days ago when we were discussing this, said that the figures did not add up. I said that they were not designed to add up. In fact, what I said was right. The Bill, as drafted, and the comparable provision in the English Housing Act, more or less double the number of houses which will be excluded from the right to buy. So far as the English are concerned, there has been a recent survey by the Oxford Polytechnic which found that there were 237,000 sheltered houses and a further 228,000 specially designed for there elderly but without a warden or an alarm-call system. In Scotland there are about 6,000 sheltered houses which were already excluded from the right to buy. This Bill would exclude a further 6,000. So, in both cases, the number of houses has doubled.
505 My Lords, I want to come back to the question of the attitude of the local authorities. I have criticised the wording of the Housing Act from time to time, and I do not do so lightly; but it is absolutely essential, in the view of the Government, that everybody knows where he is with this legislation, that the definitions are drawn as tightly as possible to avoid misunderstanding and, above all, not to allow recalcitrant local authorities to try to evade their obligations. The noble Lord, Lord Ross, thinks, I believe, that I am almost paranoic about this—
§ The Earl of MANSFIELD
My Lords, the question arises as to what the attitude of the councils is going to be. Some time ago, when he was even newer to this House than he is now, I advised the noble Lord, Lord Ross, to read the Dundee Courier to improve himself. As is my wont, I was doing that yesterday. It said on page 11:A controversial measure designed to prevent council house tenants buying their homes under the Government's legislation could be adopted by Dundee District Council's controlling Labour group".It goes on to talk about a scheme which has been hatched in Derbyshire—and I will not weary your Lordships with this—and says:Mr. Charles Bowman, leader of the Labour administration, said that they would be considering a scheme as part of their continuing struggle against the sale of council houses. 'There are a number of these that we have heard of and are looking at', said Mr. Bowman. 'We have to explore every avenue to prevent the sale of council houses'.".He went on to say:'Every suggested scheme that seemed feasible will be put to the council's legal department for a verdict on its validity. Labour groups throughout the country are trying to find ways and means to prevent houses being sold. There are always new things coming up'.".On the last occasion that he addressed your Lordships the noble Lord, Lord Ross, said that he was not encouraging local authorities to defy the law—I am sure he is not—and that once this Bill becomes an Act it would become a matter as between the council and individual citizen.
That is the point. If we adopt definitions and a style of drafting which I 506 have often criticised at considerable length to your Lordships, we are in fact giving an open invitation to district councils like Dundee (and this I am sure the noble Lord, Lord Ross, deplores as much as I do) to try every manoeuvre they can to "do down" the individual citizen of his rights. That is why I am afraid I have remained adamant.
What I say is that the three categories of housing that we have in Scotland cater, as it were, both for the rights of the citizens which were set out in the original Tenants' Rights (Scotland) Act and for the safeguards (if that is the right word) for the exemptions from the right to buy which Parliament wishes to include in them. It is for those reasons that, although I appreciate the sincerity of the noble Viscount, I cannot advise your Lordships to accept these amendments. They would make a nonsense of the Bill. Although I respect the intention of the noble Viscount, they would do the opposite of what he is trying to achieve.
§ 7.50 p.m.
§ Lord GALPERN
My Lords, having listened carefully to the noble Earl's statement of his case, I am amazed to think that he believes—and he quotes the situation in Dundee, I presume from the Sunday Post, which he told us on the last occasion was his favourite Sunday paper—that 6,000 houses are presently available from the shelter scheme under the Act; and that, by means of what they have now done to put us on all fours with the English position, another 6,000 will become available. He tells us that if he were to concede the amendment, it would be an encouragement to Dundee District Council to go ahead and drive the proverbial coach and horses through the whole Bill.
Does he realise that incorporated in the amendment is the fact that the tenant of a house has to be of pensionable age? It does not apply to people who are not of pensionable age. It would have been interesting if we could have learned how this yardstick of the additional 6,000 houses would be measured. We know what sheltered houses are, but how can he tell us at this stage that another 6,000 houses will become available without having a detailed survey of the design, structure and special accommodation that has been 507 provided for the elderly people? Does the noble Earl wish me to give way?
§ Lord GALPERN
I thought the noble Earl wished to give an idea of how these additional 6,000 houses were going to be sorted out from the ordinary municipal tenanted houses. The whole question revolves round whether the Government really wish to help the category of people who are clamouring for houses. If we allow the Bill to go as it stands, without amendment, it will mean that these people will end their days in misery without ever being able to get into a house which would make their lives more comfortable in their latter days.
§ Viscount THURSO
My Lords, I have listened with care and attention to what the noble Earl said in defence of this Bill. In particular, I listened to what he said, quoting from Hansard of another place of 5th August at column 562. He quoted Mr. Hattersley's first question and Mr. Heseltine's answer to Mr. Hattersley's second question. Mr. Hattersley's second question was:Secondly, will he confirm the statement by the Leader of the House, namely, that that which applies in England should apply to Scotland? Will the right honourable gentleman confirm that it will apply to Scotland? Will he also confirm that a suitable measure will be brought forward to ensure that this substantial concession applies to Scotland as well as to England?Mr. Heseltine replied as quoted by the noble Earl, and Mr. Heseltine referred to what he had said higher up in the same column which was quoted by the noble Lord, Lord Ross of Marnock.
I have endeavoured with this amendment to see that this is the case. If the
will of your Lordships' House is to be endorsed and applied to Scotland as in England, then the words moved in my amendment:
the dwelling-house is designed or specially adapted for occupation by persons of pensionable age and it is the practice of the landlord to let it only for occupation by such persons
must be used.
If they are used, then the other parts of the Bill fall altogether and there has to be substituted for them that part of the amendment as follows:
(b) a dwelling-house which is one of a group of dwelling-houses …
and so on, as written on the manuscript amendment. That part which was written on the manuscript amendment is not the same as Clause 1(11)(c) of the Scottish Act because in that subsection where a dwelling-house is one of a group provided with facilities, the words are modified by:
(including a call system and the services of a warden)".
This is very restrictive wording indeed. We cannot possibly have confidence in saving our sheltered housing by relying upon the wording in the Scottish Act. Therefore, as an ex-Caithness county councillor and an ex-Thurso town councillor—and I genuinely believe in the needs of old people and the duty of local authorities to provide on behalf of the community for the old people—I feel I must press forward with this amendment. I can see no other option to allow me to sleep tonight with a clear conscience.
§ 7.58 p.m.
§ On Question, Whether the said manuscript amendment to Amendment No. 1 shall be agreed to?
§ Their Lordships divided: Contents, 44; Not-Contents, 62.509
|Avebury, L.||Kilmarnock, L.||Simon, V.|
|Balogh, L.||Lee of Newton, L.||Stedman, B.|
|Banks, L.||Llewelyn-Davies of Hastoe, B.||Stewart of Alvechurch, B.|
|Blease, L.||Lloyd of Kilgerran, L.||Stewart of Fulham, L.|
|Brockway, L.||Mackie of Benshie, L.||Stone, L.|
|David, B. [Teller.]||McNair, L.||Strabolgi, L.|
|Davies of Leek, L.||Maelor, L.||Talyor of Mansfield, L.|
|Ferrier, L.||Morris of Kenwood, L.||Thurso, V. [Teller.]|
|Galpern, L.||Noel-Baker, L.||Underhill, L.|
|Gregson, L.||Oram, L.||Wade, L.|
|Hampton, L.||Peart, L.||Walston, L.|
|Hooson, L.||Pitt of Hampstead, L.||Whaddon, L.|
|Hughes, L.||Raglan, L.||White, B.|
|Jeger, B.||Ross of Marnock, L.||Winterbottom, L.|
|Killearn, L.||Seear, B.|
|Ailesbury, M.||Elton, L.||Mansfield, E.|
|Airey of Abingdon, B.||Falkland, V.||Margadale, L.|
|Alexander of Tunis, E.||Ferrers, E.||Marley, L.|
|Alport, L.||Feversham, L.||Marshall of Leeds, L.|
|Auckland, L.||Forester, L.||Montgomery of Alamein, V.|
|Avon, E.||Fraser of Kilmorack, L.||Murton of Lindisfarne, L.|
|Baker, L.||Gainford, L.||Newall, L.|
|Belstead, L.||Glenkinglas, L.||Onslow, E.|
|Bessborough, E.||Gowrie, E.||Orkney, E.|
|Blake, L.||Greenway, L.||Orr-Ewing, L.|
|Brabazon of Tara, L.||Grimston of Westbury, L.||Rochdale, V.|
|Chelwood, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Sandys, L. [Teller.]|
|Colwyn, L.||Selsdon, L.|
|Craigmyle, L.||Hatherton, L.||Sempill, Ly.|
|Crathorne, L.||Hornsby-Smith, B.||Stanley of Alderley, L.|
|Cullen of Ashbourne, L.||Kinnaird, L.||Strathclyde, L.|
|Denham, L. [Teller.]||Kinross, L.||Strathcona and Mount Royal, L.|
|Digby, L.||Lauderdale, E.||Sudeley, L.|
|Dulverton, L.||Long, V.||Trefgarne, L.|
|Eccles, V.||Lyell, L.||Vivian, L.|
|Elliot of Harwood, B.||Macleod of Borve, B.||Yarborough, E.|
On Question, Amendment agreed to.
§ 8.5 p.m.
Lord ROSS of MARNOCK moved Amendment No. 2:
Page 1, line 12, after ("are") insert ("not").
The noble Lord said: My Lords, this amendment, I suggest, should be taken with Amendments Nos. 3, 4 and 5. It does not duplicate the last amendment, and I admit right away that it is intended to widen the number of exclusions. The clause would then read as follows:
This section applies to a dwelling-house which has facilities which are not substantially different from those of an ordinary dwelling-house but which has been designed or adapted for occupation by an elderly person whose needs require accommodation of the kind provided by the dwelling-house and that it is the practice of the landlord to let the dwelling-house for occupation by persons of pensionable age".
I do not know whether or not that is described as "baby language". Taking as true what the noble Lord said, that the number of exclusions and exceptions to sell has doubled, that means that another 6,000 are added. I think I have more respect for Scottish civil servants than some, and I am perfectly sure that this is the calculation that they have made; but if that is so then it means we are not being treated fairly in Scotland and some widening has got to be made. This is where it should be.
§ This applies to a dwelling-house which is not substantially different. Far too many walls and hedges have been built up to exclude certain old people's homes. I know what has happened in Kilmarnock and Glasgow and all over the place. Houses have been built and let for old people. They are not essentially or substantially different from other houses.
§ I did not like the sneering remark of the Minister that he was not legislating for "little houses". Some of these little houses, I may tell him, are little palaces to the old people who live in them. They were especially built for them and they are in little groups. They may be in a larger housing scheme but they are in a sheltered part of that scheme. An uncle of mine lived in one of them. The people across the passage were pensioners. There were only two storeys, and those living upstairs were also pensioners. The one who was fittest collected the pensions, and they lived their own little community life. They were not separated; but these houses were all for pensioners. Yet this is the kind of house that, if the Bill passes unamended, can be sold.
§ What is going to happen if some young couple go in there with three or four in the family? We are back to what we hoped we had got away from in Scotland, the single-bedroomed house, overcrowded, because we shall have no control once the 511 house passes out of the ownership or control of the council. If the noble Earl is so concerned about the rights of individuals, will he please concern himself about the rights of the old people in these groups of houses to their peace? No one is threatening that they would lose their houses because they have security under the main Bill.
§ The noble Viscount mentioned the rural areas. He knows houses, as does the noble Lord, Lord Kilmarnock, in the countryside, which are the sneered-at "small houses". They are the very houses we want to exclude because these are the ones of most value, whether they are in towns or in the countryside, to the district councils to maintain their stock of housing.
§ The most important words that I remember the noble Lord, Lord Bellwin, using were those when he said that the whole House was concerned to preserve a reasonable stock of pensioners' houses in England and Wales. I am concerned about Scotland and I do not think justice is being done to Scotland in respect of the inclusion of just another 6,000 houses when in England and Wales the number is 221,000. The noble Earl spoke about Dundee and Derbyshire. I do not know anything about that. Neither am I a regular reader of the Sunday Post or the Courier. But I do know the Scottish local authorities. The people of Scotland did not want the Bill. Is the Minister blaming them for reading the Bill? Thank goodness somebody read the Bill, because I think that until it was passed some of the civil servants never even read it; otherwise we would not have had a list of minor amendments. We will come to them later on.
§ Lord ROSS of MARNOCK
My Lords, it is a hope that is going to be deferred, if the noble Earl knows anything about me and my reactions to sedentary interruptions, as we called them in another place. He should think again about the actions of the local authorities. It is amazing how the Government can rush to close up loopholes—perfectly legal ones that certain people have found and which cost dearly the generality of the taxpayers or the 512 community; how quickly they move to clear up, or to take steps to avoid loopholes and clear them up if they are discovered. So the noble Earl need not bother blaming local authorities for the concern as to what they think are their rights or because they are battling, which is the cause of the community, and balancing the rights of the community as against the rights of the individual. But we are not going to argue that one.
What I am seeking to do here is to extend it a little bit further. It would still bring in genuine elderly persons' houses. I am perfectly sure that would meet the real wishes of the people who in the first instance voted for the English amendment. I wish there were a little bit, more flexibility in the Scottish Office. It may well be that the trouble is that the noble Earl has far more power in the Scottish Office than I ever imagined he would have, or it may well be that the Secretary of State is too busy with other things and has left the noble Earl with this sphere of influence. If so, his influence so far is not very good. But he has a chance tonight to make history. If he has got all that power, let him accept this amendment. It is not in baby language. I can assure him that I took great care to ensure that it was clear and lucid. Maybe I went too far; I thought that even he would understand it. I beg to move.
Baroness ELLIOT of HARWOOD: If I may intervene, my Lords, I should like to say that, as I think noble Lords know, for many years I was on a border county council. I cannot visualise what the noble Lord, Lord Ross of Marnock, is saying about county councillors who sit on housing committees or social work committees, who understand the needs of elderly people. They would not dream of selling houses unless the old people living in them wanted to buy them. They would not think of selling them to people who were going to ruin the conditions under which the houses were occupied or built; or, as the noble Lord said, housing in the countryside, where in cottages which are all on one floor one can often make a most delightful old people's house. If the person concerned wants to buy it I do not see why he should not buy it.
I was amazed when recently, in the area I know best, a lot — perhaps "lot" 513 is an exaggeration; I do not know how many houses there are, but a certain amount of private building for old people was going on. Those houses are being asked for before they are built, by a whole variety of people. Of course, sometimes they are expensive and obviously old people who are pensioners and have been living in council houses would not be able to buy them, but it is amazing how many people do take out a mortgage and buy new houses being built, not by local authorities. In my day that did not happen. We did not have that because people did not have the facilities they have today to go for mortgages.
I cross swords also with the noble Viscount, Lord Thurso, who has also been in local government for a long time. I do not think any local authority would do something which was going to interfere with or hurt the old people for whom they are responsible. I think noble Lords are not trusting the people who have been elected, who are part of county councils, who understand these things, who want to build more houses.
In the period when I was on the county council we built the first groups of sheltered housing. For some reason or another they had not thought of doing this before. I was dead against building any more large homes for old people. I thought it was so much better to have sheltered housing. No local authority is going to sell those unless it is to someone who is genuinely a pensioner and who would like to have their house.
I think noble Lords under-estimate the way in which local government committees operate. It may well be that in big areas like Glasgow or Dundee, which I really do not know anything about, there is more difficulty, but certainly in the south of Scotland, in the areas which I know, I have no doubt at all that any local authority would be desperately keen to get more houses for old people. I agree with the noble Lord, Lord Ross, that we have not had nearly enough and we ought to have more. But there is also this private building—it has only happened in the last five years or so—of groups of old people's flats or old people's houses and they are spoken for immediately. I have some experience of this because I wanted to get one for an old friend. I 514 did not put my name down quickly enough and I could not get it; they were all gone. That is happening all the time.
Although the Bill covers only one type of house I think that it will not hamper the building of houses for old people. I think it will not do any of the things which have been said so gloomily by the noble Viscount, Lord Thurso, and even by the noble Lord, Lord Ross. I bow to his knowledge of Scotland and his many years as Secretary of State, but my experience is that this will work and I hope very much that we shall get many more houses built and that there will be no restrictions at all of that kind.
§ 8.19 p.m.
§ Lord HUGHES
I wish to support the amendment moved by my noble friend Lord Ross. I am persuaded to do so very largely because of what the noble Earl, Lord Mansfield, said about Dundee on the previous amendment. I was a councillor in Dundee for 25 years, during which time many of the houses there were built. Before coming on to that I want to refer to what the noble Baroness, Lady Elliot, said. She is perfectly right when she says that no Scottish local authority, particularly the old county authorities and their successors, would sell these houses other than to old people. What she is overlooking is that this Bill does not leave the discretion to the local authority. It takes it entirely out of their hands and puts it into the hands of the person who wants to buy the house.
In some cases, the person who wants to buy the house may well have been persuaded to do so by a son or daughter who will be the heir to the house, and who encouraged the mother or father to buy the house in the knowledge that when, in due course, it came into his or her possession he or she could sell it. Under this Bill, the local authority would be able to do nothing to stop them. They have no right in the matter. The right is entirely in the hands of the person who then has the tenancy of the house. And I ask your Lordships to remember that the son or daughter will be given the right to become the tenant of the house, or will have become the owner of the house of inheritance.
Let me come back to the Dundee situation. The noble Earl seemed to 515 imply from what he read in the Courier that the previous amendment—and I am certain that he will have the same opinion of the present series of amendments—would enable authorities throughout Scotland to drive his proverbial coach and horses through the Act. I suggest that that is not so. But let me first refer to what he regarded as the equality of treatment which Scotland is getting; that more than 200,000 sheltered houses in England are being augmented by more than 200,000 additional houses, and that, if Scotland had 6,000 sheltered houses and there were another 6,000 being built, Scotland would be getting equality of treatment, in that both figures were doubled.
I suggest that his argument is quite fallacious, for this reason, It is quite obvious that there have not been nearly as many sheltered houses built in Scotland, on a proportionate basis, as in England. On a proportionate basis, there should be 22,000 sheltered houses in Scotland for its population, which is approximately one-tenth of the English population. The fact that there are not as many sheltered houses as that is because, proportionately, in Scotland there were more small houses—ones which he rather sneered at—built. There were many houses with a living room, a bedroom, a kitchenette and a bathroom.
The noble Baroness, Lady Elliot, must know the extent to which this was done when she was on the county council. Those houses were, in the main, let to old people. There were not so many sheltered houses built in Scotland, because there was this stock of houses which were regarded as being primarily for old people. If you add that stock to the sheltered housing, that is the figure which we should be comparing with the sheltered housing figure in England, where there was never a tendency to build small houses at any time.
To come to the position in Dundee, and the implication that, if this were allowed, the Dundee pattern could be followed by labour authorities throughout Scotland, I am quite certain he is right that, if this were a loophole which Dundee could use, other Labour authorities who were opposed to the Bill would seek to do exactly the same thing. But it is not a loophole.
516 The amendment which my noble friend Lord Ross has moved would amend Section 3A(1), but Section 3A(4) goes on to say:Where the Secretary of State has received an application under this section and it appears to him that the dwelling-house concerned is one to which this section applies, he shall authorise the landlord to serve on the tenant a notice of refusal".With the best will in the world, Mr. Bowman, the leader of the Labour-controlled council in Dundee, cannot persuade the Secretary of State for Scotland that a house is one in the way which my noble friend's amendment would make it, if it is not in fact so. As I said at the last stage, the Secretary of State has to be persuaded that it falls within subsection (1). If he considers that Dundee Corporation, Dundee District Council, Glasgow District Council or any of the other district councils in Scotland are seeking to refuse, and the house is not one which would fall within the wording of my noble friend Lord Ross of Marnock, he has the obligation and the right to say, "You will not be allowed to serve a notice of refusal."
I hold no brief for people who seek to break laws just because they do not like laws. I said that the other day, in connection with a totally different measure, when I did not consider that even the Lord Advocate should have the right to choose the laws which he was prepared to enforce, and I would apply exactly the same arguments to the Dundee District Council. But the Secretary of State has provided himself in this Act with the complete safeguard that he has to be satisfied that it complies with the wording of the section. So, for those reasons, I think that my noble friend is entitled to ask your Lordships to agree to the amendments which he has proposed.
§ Viscount THURSO
My Lords, the noble Lord, Lord Hughes, has put the position very clearly and very well. I really do not think that the noble Baroness, Lady Elliot of Harwood, has realised the enormity of what her friends are trying to do. These houses, which successive councils have tried to build as a stock of houses for old people who need them, are now at risk because, unless it is amended by the amendment of the noble Lord, Lord Ross of Marnock, the law will state 517 that they must be sold to the sitting tenants; that they must be sold to the sitting tenants at a discount; that they must be sold to the sitting tenants at a discount with a loan to do it, if necessary; that having done so there will be no right of pre-emption by the council which built those houses specially for the purpose of housing old people; and that they can then be passed on free of encumbrance to the heirs—whomsoever they may be. They may even be people from quite outside the community, who will merely decide to sell up these houses, which may then be totally lost to the housing stock of the community.
It is monstrous that this should be so. This is not what was intended. To leave it like this is not to give parity between Scotland and England in this matter. I therefore feel at this stage, having lost my own much-loved baby earlier on, that I should do my best to help the baby of the noble Lord, Lord Ross of Marnock, to survive and be born in your Lordships' House. I certainly support his amendment.
§ 8.29 p.m.
§ The Earl of MANSFIELD
My Lords, perhaps I should repeat what this Act sets out to do. It sets out to permit the exclusion of a category of special needs housing for the elderly which falls between sheltered housing on the one hand—and that is already excluded from the right to buy—and general needs housing occupied by the elderly on the other hand, which neither this House nor the other place have ever agreed should be excluded from the right to buy, whether in Scotland or in England and Wales.
However noble Lords may have thought that I had described small houses, what I was trying to say was really an answer to a Liberal point at the last stage of this Bill, that merely because a house was a small house under the Tenants' Rights, Etc. (Scotland) Act, that was no reason to deprive the tenant of it of the right to buy. I meant no more and no less.
The amendments of the noble Lord, Lord Ross, are essentially very similar to those which he moved at the Committee stage of this Bill. I do not wish to repeat myself more than I have to. We have this intermediate category of 518 special needs housing for the elderly in Scotland which has been recognised since 1975 by the previous Government and now by us.
"Amenity housing" is a Scottish term; it is not used in England and Wales. It is different from general needs housing. As I explained on the last occasion, I think, it has a whole number of special features—and I described them—which cumulatively make it significantly different from general needs housing. I really must stress that there is no controversy outside the Bill about the reasonableness of this categorisation of housing for the elderly and I can assure your Lordships that the Bill as it stands will allow amenity housing to be excluded from the right to buy.
The noble Lord, Lord Ross of Marnock, was honest enough to say quite frankly that what his amendment seeks to do is to enlarge the category or the class of house which will be excluded. In fact, his amendments are directed at excluding houses which are so near general needs housing as to make no difference. The effect of Amendment No. 2 would be that in order to qualify for the right to buy, a house must have facilities which are not substantially different from those of an ordinary dwelling-house. In other words, the house must be more or less indistinguishable from a general needs house. It follows, then, that the real criterion governing its exclusion from the right to buy is whether it is occupied by an elderly person.
Noble Lords opposite are really arguing, as they have all along, that the elderly should not have the right to buy. That is a point of view which is entirely for them, but I am bound to point out that it is fundamentally in conflict with the Tenants Rights, Etc. (Scotland) Act, whose whole purpose is to confer on individual tenants, unless the community has a very strong need to retain public ownership, the particular house in which they live.
The Government's view, quite simply, is that the community cannot be said to have a need in relation to houses which are not significantly different from the general run of houses. We accept that many old people will not want to buy their houses. This will be particularly true of those who are sufficiently infirm and who for that 519 reason live in amenity or sheltered housing. But equally there will be many hale and hearty tenants who have reached pensionable age and who have a considerable life ahead of them, and they have every right to spend the remainder of their years in a home that they can call their own. If they wish to use their savings for that purpose and to buy their independence, who shall deny them?
I have concentrated on principles rather than drafting. I suggest that this is a form of words which really should not be written into any public Bill. Other than that, however, I am not going to criticise the drafting.
The noble Lord, Lord Hughes, raised what may go down in the books as "the Dundee loophole"—
§ The Earl of MANSFIELD
— and in doing so he made what I am sure he would not wish to do—namely, a false point. As I said on the previous occasion when this matter was before your Lordships, and it is right that there should be no misunderstanding about it, subsection (4) of the Bill does not give to the Secretary of State what I might call a quasi-judicial function. The wording which appears in many, many statutes—"it appears to him"—is to be taken as meaning "if prima facie there appears to be". I can put it in this way, by saying that this is a very low threshold. If the circumstances, as I say, amount to a prima facie case, then the Secretary of State is under the duty set out in the latter part of subsection (4). What he is not entitled to do is to exercise a quasi-judicial function and to decide the matter on the merits. If he did, then it would be open to the local authority to take legal action against him.
§ Lord HUGHES
; My Lords, the noble Earl said that it would be open to the local authority to take legal action, but in that case the local authority would have to satisfy the courts that it had been their practice to let that house to persons of pensionable age. If in fact it had not been, obviously their case would fail.
§ The Earl of MANSFIELD
My Lords, I think the noble Lord misunderstands me. 520 All that the local authority would have to show is that prima facie the application under the section is one which comes within the exclusion. That is all. That, no more and no less, is the duty which would be on the local authority.
This is a matter which we have debated on a number of previous occasions, and I cannot help your Lordships further. The noble Lord, Lord Ross of Marnock, was frank enough to say that his intention in moving these amendments was to enlarge the class of houses which could be excluded from the terms of the Bill. I can only ask your Lordships, if the matter is going to be pushed to a Division, to reject this amendment.
§ 8.37 p.m.
§ Lord ROSS of MARNOCK
My Lords, I am disappointed but not surprised, because I feel that the noble Earl the Minister is acting very much under instructions. We can sympathise with the Government in the troubles that they are in. They have got to take this to another place. They will have to go through the hoops of Second Reading, Committee stage, Report stage and then Third Reading. It is indeed a very interesting Bill. There was a time when a very young Member for Kilmarnock would have kept them there for a long, long time. The Bill is capable of very considerable variation and amendment.
Of course, the Government have not got the time. That has been one of the troubles in respect of both this Bill and other Bills which we have been considering. I do not know how civil servants and draftsmen have stood the pace. No wonder they make mistakes. Then there are changes of mind by Ministers. Look at what we have just heard. There is to be this fall-back of the Secretary of State having to be satisfied if itappears to him that the dwelling-house concerned is one to which this section applies …".It says, "If it appears to him". The only other difference is that in the English Bill the Secretary of State has got to be satisfied that it falls within the section. Then he must act.
We have heard what the Minister of State for Scotland says: that these words do not mean all that much. Oh, yes, 521 they do. That is why they are there, according to the English Minister, Lord Bellwin, in this House. There is no mystery about the reason for introducing the requirement for a determination before a dwelling is to be treated as exempt; it is intended to remove the scope for reluctant local authorities to exploit the exclusion. As amended, that power remains with the Secretary of State for Scotland. The local authority cannot exploit it, but the Secretary of State says that the local authority could take legal action. However, the local authority can take legal action, even under the unamended Act. Surely the Government are not going to deny them the right to take legal action to see whether or not the Secretary of State is acting in accordance with the law. So the noble Earl made a false point.
It might well be that there is more scope in respect of the kind of houses, and I admitted at the start that this was necessary because of the whole history of Scottish housing. The curse of Scotland was the single end and the rooming kitchen and for years and years local authorities would not build that size of house. They were building for large families and for families of two or three, and of course suddenly people began to realise that there were more and more old people in the population and they had to build for them. They built houses for pensioners. They were little houses; very good little houses, but once they go out of the control of the councils these little houses will be open to anyone and they will be the kind of houses that young married couples will buy and after three or four years we shall be back to the situation of having overcrowded small houses. That is the danger of this.
§ Baroness ELLIOT of HARWOOD
My Lords, if I may interrupt the noble Lord, I bow to his knowledge of Scotland more than to anyone else's but the fact remains that there are a lot of empty houses. I know of many four-roomed houses in the Borders—200 of them in one place alone. They are not going to allow people to put a father, mother and three children into a little house built for pensioners. They would not be allowed to do it; they would have to take the houses which were built for ordinary people and the pensioners' houses will remain for pensioners.
§ Lord ROSS of MARNOCK
My Lords, the noble Baroness said that we would not allow it, but the trouble is that we shall not have any option because the right will be that of the existing pensioner to sell and to sell to anybody, and the council will not come into it.
§ The Earl of MANSFIELD
My Lords, if I may make a comment here, as the noble Lord has twice spoken of overcrowding, what about the private sector Housing (Scotland) Act 1966, which gives the council not only the right but the duty to take action against overcrowding in these circumstances?
§ Lord ROSS of MARNOCK
And, my Lords, what action will they take? Will the noble Earl tell me when last they took action in respect of a privately owned house? He can give me the information about that, surely, because obviously it has been exercising his mind for a long time. When did a local authority take action at law against a private tenant who was overcrowding his house? It is a different matter with a slum, but we were not speaking about slum houses; we were speaking about allowing situations to occur which will create slums where we now have perfectly good old people's houses. That is the problem.
The answer to the noble Earl, of course, is that very often the local authority will take action after the trouble has been caused, by giving them another house and they have certain rights in respect of which house they will take and the local authority are not being allowed to build.
I am perfectly sure that anyone who knows anything about the history of Scottish housing will know just exactly what I am driving at here; and this is the reason why we have such a small number of sheltered houses. The noble Earl said, I think it was at Committee stage, that the extension of the exclusion is to houses that are not quite sheltered housing. Probably the only thing they lack is a warden or an alarm system. That is not good enough to give us equality of treatment in preserving a stock of housing for old people.
I do not intend to divide the House at this time of the night. We have already had a very effective Division by the noble 523 Viscount tonight, and I am sorry that he just failed to get all the support that his amendment merited. I certainly will not allow it to pass without recording my dissent, but I do not propose to divide the House.
§ On Question, Amendment negatived.
§ [Amendments Nos. 3 to 5 not moved.]
§ 8.45 p.m.
Lord ROSS of MARNOCK moved Amendment No. 6:
Page 2, line 40, leave out ("and shall be deemed always to have been").
§ The noble Lord said: Here we come to something which is very important for anyone who has any respect for the laws, be it in England or in Scotland, and indeed for the watchdog function of the House of Lords.
§ The Earl of MANSFIELD
My Lords, will the noble Lord evince even more respect by speaking to Amendment No. 8 at the same time?
§ Lord ROSS of MARNOCK
My Lords, I have been seeking to be helpful to the noble Earl. Indeed, no one could have been more helpful; I took the last five amendments together, so I am not being obstructive. There is a very different principle here. It took more than six months for this Bill to reach the statute book. It went through every stage: Second Reading, Committee stage, Report stage—as many stages as there are Members on the Front Bench opposite talking away at the present time. I was hoping that one of them would listen. The Bill came to this place and it got Second Reading, Committee stage, Report stage, and we could possibly amend it even on Third Reading and then there would come the Question, That the Bill do now pass?
Here we have a second clause. Nothing that was promised, so we are out of the 524 way of arguing about who said what in another place. We are now down to the fact that here is a Bill which is being amended in the same Session in which it was passed. As I said earlier, after the Bill had passed, somebody decided to read it. I do not know whether it was a Minister, a civil servant from the Scottish Office or a draftsman from the Crown Office, but they found that there were mistakes and just because there had been a row in another place a pledge was given that another Bill would be introduced to give the chance for it to be put right, quicker than has ever been done by any other Bill. It is a monument to somebody's mismanagement and of course they seized the chance. So here we have (a), (b), (c), (d) and (e) and so we wipe the slate clean.
This amendment which I am now moving is to leave out certain words because Clause 2 says:The principal Act shall be and shall be deemed always to have been subject to the following amendments—I do not mind the business of wiping the slate clean, but to say that the slate was never chalked over is quite a different matter. That is the principle. It is what is called retrospective legislation and I have heard lawyers in another place—and I have even heard them in this place in the short time I have been here—telling us about the evils of retrospective legislation and that it should not be done, not even for something as unimportant as this, because some day somebody will come along with some evil thoughts and they will refer to the precedent here and they will say, "It was done by the Tory Government on 29th October, 1980 and because they did it, we can do it too".
So that is what it means. The amendment is correcting errors of omission or commission and saying that they never took place. That is a very serious legal matter in legislation. That is why I am not considering the substance of these other amendments which I tabled. I want the Scottish Office Minister to justify this aspect of retrospection in respect of this particular line. I beg to move.
§ 8.50 p.m.
§ The Earl of MANSFIELD
My Lords, I think the kindest thing I can say about 525 the noble Lord's amendment is that he does not know what he is talking about. The amendment would remove the deeming provision which in effect says that the Act shall always have been subject to the amendments listed in Clause 2. There is only one to which it has any relevance and that is (e) the heritable proprietor, because those listed at (a), (b), (c) and (d) of Clause 2 all relate to provisions which in fact will not come into effect until 1st December. So it may look retrospective but in fact it is not. The whole amendment is purely for the avoidance of doubt and it makes no substantive change at all. The rights of the landlord and the rights of the tenant are totally unaltered by this deeming provision. What we are seeking to do is to make a clean job of dispelling the uncertainty which one or two authorities have stirred up. This is why I wanted the noble Lord to speak to Amendments Nos. 6 and 8 at the same time because it really all hangs together. Nevertheless, we must have that surprise when we come to it.
The practical significance of this deeming provision is not that any rights are removed which might have existed at the time when the Act came into force. In fact it does two things: it gives guidance to the lands tribunals before whom a tenant who has been denied his rights can take the landlord. What it will do is to discourage a recalcitrant landlord who refuses to allow tenants to buy their houses and forces them to go to the lands tribunal, not because it knows that it is ever going to prevent the sale, because it knows full well that at the end of the day it cannot; nevertheless it could, in the circumstances which I illustrated earlier, simply hold the matter up. Although on the face of it it seems to be retrospective, since the noble Lord will appreciate that no such thing is intended, nor can it have that effect, I hope the noble Lord will feel able to withdraw the amendment.
§ Lord ROSS of MARNOCK
Well, my Lords, the noble Earl says I do not know what I am talking about. I am beginning to wonder whether the noble Earl knows what is written down. There is no doubt at all about it; he admitted it; it looks like retrospection and indeed it is retrospection. If, after a Bill has passed, after it has become law, after it has come into 526 operation, you make an amendment and then deem that that amendment was always there, of course it is retrospection. The noble Earl refers to certain technical changes that were made which do not arise; they are not consequential on this amending Bill. Obviously, I do not object to those changes. But he says it is not retrospection because they refer to sections of the Act that have not come into force. But he referred only to one amendment, the one in Clause 2 in respect of the heritable proprietor.
If I had received from the noble Ea[...] an answer that this was a practice allowed by Parliament in respect of removal of doubt, perhaps in respect of a judgment that had been given by a court which was contrary to the expectations or the intentions of Parliament, then I might have accepted it. But he did not say that. If he said anything he said that they did not really matter. If they do not really matter why are they there, why are we discussing them as late as this, at five minutes to nine? My goodness, it is terrible! I do not know that he knows what he is talking about. I sympathise with him; he is an English lawyer—and I say that with all generosity in my heart—dealing with a Scottish Bill, with some experience of a Scottish local authority but not one which was highly controversial and dealing with these matters in everyday life.
I still am disappointed that he has not given me an answer to this question. Is not this retrospective amending? I can remember lawyers in another place who could have spoken for hours on the evil of this and have suggested that it should never be done, even on small matters like this, because it would be creating a precedent. I am not going to argue with the noble Earl about it, but if the other Lord sitting beside him wishes to tempt me I could carry it on for quite a long time. He is there as the legal adviser, no doubt, to the Minister of State. I am not going to take a chance of getting advice from that quarter. So, having heard the Minister's explanation, I am not going to proceed with a Division in respect of this amendment and I reluctantly beg leave to withdraw it.
§ Amendment, by leave, withdrawn.527
The Earl of MANSFIELD moved Amendment No. 7:
Page 2, line 42, at end insert—
("(a) in section 4(4) after "elderly" insert "(that is to say, of pensionable age)";").
§ The noble Earl said: My Lords, I beg to move Amendment No. 7. There is a misprint in the Marshalled List. It should read: "Page 2, line 41, at end insert" the said words. This amendment is consequential on an amendment which was moved by the noble Lord, Lord Ross, and accepted by your Lordships at Committee stage of this Bill, to the effect that "elderly person" is defined as a person of pensionable age for the purposes of the new Section 3A which it is proposed in subsection (2) of Clause 1 of the Bill should be inserted into the Act. As I said, this is consequential to the amendment previously accepted. I beg to move.
§ Viscount THURSO
My Lords, if the noble Earl is going to submit a change from what is on the Marshalled List, should there not be a manuscript amendment?
§ The Earl of MANSFIELD
My Lords, this is not part of the amendment; it is merely describing it, and it is a misprint. I think somewhere little words like de minimis are beginning to ring round my head.
Lord ROSS of MARNOCK moved Amendment No. 8:
Page 3, leave out lines 6 to 13.
The noble Lord said: My Lords, this amendment is to leave out lines 6 to 13. It did not surprise me that the only reference the noble Earl made when we were discussing the last amendment was to the minor amendment in paragraph (e) which I seek to leave out, where he defines "heritable proprietor",
in relation to a dwelling-house includes any landlord entitled under Section 3 …".
et cetera. I am perfectly sure the noble Earl has got a perfectly lucid brief. I hope it is in simple language—I do not say baby language—so that he will be able to explain to the House the importance of this, and why after all these weeks and months, it has been felt necessary to put in this particular definition. I beg to move.
§ The Earl of MANSFIELD
My Lords, Section 1(11) of the Act provides, in part, that the right to buy does not exist where a landlord does not own the house in question. That would seem to be a matter of common sense. However, the provision uses the term "heritable proprietor" to denote ownership and it has been suggested by one or two local authorities that a technical quibble about Scots' conveyancing terminology could give rise to some doubt about whether "heritable proprietor" covers all forms of ownership. I may say that the Government are confident that the Act, as it stands, is sound and this has been confirmed by no less an authority than Professor Halliday, whose opinion was taken by a number of local authorities.
However, one local authority took the unusual step of writing to all the other Scottish authorities putting forward the view that there is room for some doubt about the interpretation of the phrase "heritable proprietor" and that has inevitably resulted in uncertainty which it is desirable to resolve. The effect of the other interpretation that has been suggested is that local authorities would be treated as not being the owners of houses which they took over as a consequence of local government reorganisation. That is clearly a tempting prospect for would-be recalcitrant authorities, and I think that it demonstrates clearly that the Act is sound and that since the legislation came into effect only one local authority—which has long-advertised its intention of exploiting every opportunity of causing delay and discouraging tenants—has decided to exploit this doubt as a pretext for refusal to sell any house which it took over on local government reorganisation in 1975.
Clearly it is desirable that there should be no vestige of doubt about a provision of such importance affecting the right to buy of the majority of Scotland's public sector tenants. This amendment is brought forward purely for the avoidance of doubt. I stress again that the amendment contained in Clause 2 of the Bill confirms the interpretation of the Act which we are confident it already bears, and that which there is absolutely no doubt that Parliament intended it to bear. There can be no argument against the Bill's provisions as they stand other than a desire to give comfort to any local 529 authority which wishes to cause delay and discourage its tenants from exercising their statutory rights. I hope that that explanation will satisfy the noble Lord.
§ Lord ROSS of MARNOCK
But I can tell the rest of the House that I spent quite a bit of time in the Library and I have here in my hand the Conveyancing (Scotland) Act 1924, and I turn to Section 3. What surprises me is why the Government missed this very important point right at the start. I said earlier that the noble Earl, and maybe some others as well, were so obsessed with the obstructive local authorities that they were closing up main gates and forgetting that there might have been some holes and hedges, with the result that this question of doubt in respect of this matter has arisen.
The noble Lord's explanation is quite right. I am not so sure, though, that it is entirely fair because a local authority has a right if there is a doubt, to have it cleared up in the courts. We must remember that there are time limits in the Bill in respect of which they must reply to the local authorities and some of those time limits may well have been eroded. And for the noble Earl to come along and clear up doubt, as he says, and at the same time make no change in respect of the time limit, may be unfair to a particular local authority. I hold no brief, and neither does my noble friend Lord Hughes, for anyone who defies the law, but if the law is in doubt then such a person has as much right as anyone else to have that doubt removed by going to the courts. So I accept the explanation and the reasons for it and I am also grateful for the fact that the string of local authorities that we have heard about during consideration of the Bill has now been 530 reduced to one. In view of that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 9 not moved.]