Lords Sitting of 26 April 1983

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Hereford.

Government Papers: Unauthorised Disclosure
Lord Balfour of Inchrye: My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what success has been achieved in the investigations into the responsibility for recent leakages to the press of confidential Government papers.
The Lord Privy Seal (Baroness Young): My Lords, it would not be in the public interest to disclose details of inquiries into the unauthorised disclosure of information or the degree of success which these have achieved.
Lord Balfour of Inchrye: My Lords, can the Minister kindly say what success has been achieved in the case of the last two examples, one of which was rebuked by the head of the Treasury and the other was rebuked by the Prime Minister, who said that it was deplorable?
Baroness Young: My Lords, I cannot add anything to what I have said in my original Answer, and I do not believe that it would be right for me to add any further comment on leak inquiries.

Government Papers: Security
2.37 p.m.
Lord Balfour of Inchrye: My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they consider that present methods of safeguarding secrecy for Government papers available to Ministers and departmental officials are adequate or whether they require review with a view to achieving some improvement.
Baroness Young: My Lords, every effort is made to keep classified information secure. The arrangements are kept under review and changed as necessary.
Lord Balfour of Inchrye: My Lords, does the Minister consider that the present procedures are adequate, in the light of the results hitherto achieved?
Baroness Young: My Lords, as I have indicated, the arrangements are kept under review, and it has to be remembered that in a free society a balance has to be
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struck between efficiency and security. The fact of the matter is that no system, however draconian, can ever be regarded as infallible.
Lord Cledwyn of Penrhos: My Lords, is the noble Baroness aware that the House would, no doubt, agree with what she has said on that point? Could she say, following the substantial leak of Government information on family policy to The Guardian newspaper in February, what action was taken at the time? Was there an inquiry and, if so, what kind of inquiry? What was the result of the inquiry and were there any reports which will be made public?
Baroness Young: My Lords, on the point which the noble Lord, Lord Cledwyn, has raised, inquiries were made and the investigators' reports are being studied. But it is not the practice to disclose any of the information or the result of the investigation.
Lord Cledwyn of Penrhos: My Lords, I am extremely grateful to the noble Baroness for that information. Could she perhaps go a step further and say what will be the results of the study, who is making the study, how long it will take before the study is completed and whether any action is proposed at the end of that, if anyone is found culpable?
Baroness Young: My Lords, I do not wish to sound unhelpful on this matter, but I think it would be right for me to say that it is not the practice to disclose any information about leak investigations. But I should like to say on the second part of the noble Lord's question, that the unauthorised disclosure of official information is regarded as a very serious breach of the Civil Service code of conduct. An offender would normally be dealt with under the Civil Service disciplinary procedures, the penalties under which include dismissal. My right honourable and learned friend the Attorney-General, or my noble and learned friend the Lord Advocate, as appropriate, would also consider whether to institute criminal proceedings.
Lord Balfour of Inchrye: My Lords, while I quite accept that the results of the investigation cannot be revealed, would it not be reassuring to the public if they were told, in the broadest terms, whether the investigation resulted in something positive?
Baroness Young: My Lords, something positive comes out of any investigation, if only an opportunity to review the procedures and to draw the attention of those involved to the importance of confidentiality and of the procedures which are adopted in the Civil Service. But I really do not think it would be right for any results of inquiries to be published in this way. As your Lordships will know, some of the serious matters—for example, the results of positive vetting—are, in fact, being looked at now by the Security Commission, which is a rather different issue, in regard to the cases which have been referred to it.
Lord Bruce of Donington: My Lords, in giving consideration to this matter, will the Government also investigate how it is that a couple of days before the Budget the details always seem to be in either the Observer or the Sunday Times? Would the noble

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Baroness agree that the coincidence of the particulars being practically identical points to a leakage or guidance from very high places?
Baroness Young: My Lords, I do not think it would be for me to decide at this stage what was, or was not, said before the Budget. I think that the Question which is down on the Order Paper refers to other matters, and I answered it as I believe was appropriate in the circumstances.

Real Net Income: Comparisons
2.42 p.m.
Lord Hatch of Lusby: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what changes have taken place since 1979 in the real take-home pay of a person earning £45,000 a year and of an unemployed person.
The Minister of State for Trade (Lord Cockfield): My Lords, for a married man with two children, with constant real gross earnings equivalent to £45,000 a year at 1983–84 prices, real take-home pay will be about 18 per cent. higher in the current tax year than in 1978–79, and about 2 per cent. lower than in 1979–80. The changes in real net income for unemployed people will depend upon their precise circumstances, but for the married man with two young children on supplementary benefit the real value of net income is about 8 per cent. higher than in November 1979.
Lord Hatch of Lusby: My Lords, I thank the Minister for his Answer, but I wonder whether his attention has been drawn to the study made by an independent organisation, the Institute for Fiscal Studies, in which they found that in real terms the income of an average man with £45,000 a year has risen by £120 a week since 1979, which is a rise of 25 per cent., whereas an average unemployed man is now taking home, in real terms, £15.30 per week less than in 1979, a decrease of 21.3 per cent.
Lord Cockfield: My Lords, the figures are as I have in fact given them. The unemployed person who is receiving supplementary benefit and who has two young children is now better off, in real terms, than either in November 1978 or in November 1979. So far as the person with a substantial income is concerned, the position is that during the lifetime of the previous Administration the rates of tax charged went up to 98 per cent. on investment income and 83 per cent. on earned income. These rates were not sustainable and were bad from the point of view of the economic health of the country.
Lord Shinwell: My Lords, as I understand the noble Lord's Answer to the Question, he admits that there is a disparity between a person who earns £45,000 a year and a person on unemployment benefit. If he admits that, would the noble Lord the Minister be kind enough to tell us how he is going to correct it?
Lord Cockfield: My Lords, as I have said, the difference arises from the changes which were made in 1979. Those changes were to put right what in effect were excessive and insupportable levels of taxation. The important point which emerges from the noble Lord's Question is that the position of an unemployed person who has young children and is on supplementary benefit has actually improved since 1979.
Lord Gisborough: My Lords, is my noble friend aware that these figures represent a differential of approximately 20 times by way of spending money? Does my noble friend find it interesting that after 60 years of socialism in the egalitarian state of Russia the differential is approximately 40, if one excludes conscript soldiers, where the differential is 256, and that in the egalitarian state of China, where there are millions of unemployed, the differential is infinity because there is no unemployment pay at all?
Lord Cockfield: My Lords, I am most grateful to my noble friend for that most interesting information.
Baroness Gaitskell: My Lords, would it not be true to say that the Minister's reply has absolutely no meaning for people who are out of work and in this position—no meaning whatsoever?
Lord Cockfield: No, my Lords; I am afraid I cannot accept what the noble Baroness says. I was asked specifically for certain information. That information I have given. I drew attention to the most interesting fact, upon which I have commented; namely, that the position of the unemployed person with young children, on supplementary benefit, is actually better now than it was in 1979.
Lord Bruce of Donington: My Lords, is the encouraging aspect of the taxation position which has been given by the noble Lord consistent with the Government's abandonment of the taxation and prices index, which they issued with such a fanfare of trumpets on 29th August 1979, when, of course, they promised the electorate that they would lower the burden of taxation? Is the noble Lord further aware, or need he be reminded, that only last week his right honourable friend in another place admitted in an Answer that in order to restore taxation to the position which existed in 1979 there would have to be a 7p deduction from the current rate of income tax?
Lord Cockfield: My Lords, I was under the impression that I was being criticised from the Benches opposite for the size of the reductions made in taxation. I am therefore most encouraged by the support given to me by the noble Lord, Lord Bruce of Donington, who is advocating further substantial reductions in taxation.
Lord Beswick: My Lords, I wonder if the noble Lord could make it absolutely clear, so that we may follow these matters more fairly, whether the improvement in the take-home pay, as he puts it, of the unemployed man is due to a change in the taxation rate or whether it is due to the fact that the unemployed man gets rather more unemployment pay now as a result of the higher contributions?
Lord Cockfield: My Lords, there seemed to be some innuendo in the noble Lord's question, which I hope he will forgive me if I ignore. So far as the figures are concerned, the position of the unemployed man, as I have given it, is not affected by taxation.
Lord Beswick: No, my Lords, but is not the question relevant to taxation? Would the noble Lord make it absolutely clear that as a result of the taxation policy of the present Government a man taking home that kind of pay was worse off from 1979 to 1982 because of the changes in taxation, and the only reason why the noble Lord can point to this increase of £8 a week is because unemployment pay and supplementary benefits are higher?
Lord Cockfield: My Lords, if the noble Lord would care to read the Question, it related to the position of a person on £45,000 a year income and the position of a person who is unemployed. I gave the figures relating to those two circumstances. If there are any further or more detailed figures which the noble Lord would like, I shall be only too pleased to send them to him, if he will specify precisely what he requires.
Viscount St. Davids: My Lords, will the noble Lord the Minister please clarify one point? Is not inflation itself a form of taxation? Is it not the form of taxation that occurs when we do not have the political power to tax ourselves properly? Is it not an extremely unfair form of taxation, because it hits the poorest people worst of all?
Lord Cockfield: My Lords, I entirely agree with the noble Viscount. This is why we have set the reduction of inflation as one of our top priorities. We have made very significant progress in that direction.
Lord Hatch of Lusby: My Lords, is the noble Lord, Lord Cockfield, aware that he has not answered my original supplementary question? If he cannot do so this afternoon, will he be so kind as to write to me, comparing the figures given by the Intitute of Fiscal Studies with the selective figures he has given? Further, will he tell the House whether it is correct that his defence of the reduction of taxation on the high income groups was that it was to give an opportunity for an increase in investment and in production? But has this not been followed by a drastic decrease in investment and an even more catastrophic fall in production?
Lord Cockfield: My Lords, the noble Lord is committing the common fallacy of post hoc propter hoc. The fact of the matter is that the long-term health of the economy demands a lower level of taxation than that which existed during the lifetime of the previous Administration. That was the reason for the reductions which were made in 1979 and which have been debated on many occasions both in your Lordships' House and elsewhere. I shall always be happy to write to the noble Lord on this or on any other question.
Lord Mishcon: My Lords, will the noble Lord the Minister accept that, whatever may be the increase or decrease in other rates, his own rate of cynicism
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increases month by month? Will he also agree that the whole purpose of this Question is the concern of the House—certainly on this side—with the misery of 4 million unemployed? That was the whole basis of the Question, and is the Minister not equally concerned?
Lord Cockfield: My Lords, the noble Lord's attempts at levity in the first part of his supplementary question belied the nature of the attack that he was endeavouring to launch upon me. So far as the point of substance is concerned, I drew attention to the fact—and I thought it was a matter for some satisfaction—that the position of the unemployed person, with the circumstances I have mentioned, is in fact better than it was in 1979. I would have thought that the noble Lord would have taken some satisfaction from that fact, as I and the other members of my party do.

House Building
2.54 p.m.
Baroness Lane-Fox: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what was the total of new house building started in the last period for which figures are available.
Lord Skelmersdale: My Lords, provisional estimates show that 48,000 dwellings were started in Great Britain in the three months from December 1982 to February 1983. House building starts in the 12 months March 1982 to February 1983 were 201,000 which is a 28 per cent. increase on the previous 12 months.
Baroness Lane-Fox: My Lords, in thanking my noble friend for that very satisfactory reply, may I ask whether he can say if the latest figures for February continue this encouraging trend?
Lord Skelmersdale: My Lords, my figures included February, but my understanding is that the powers-that-be expect a 10 per cent. to 15 per cent. increase over and above the figures I have given in the next 12 months.
Lord Underhill: My Lords, accepting that any increase in house building is to be desired, will the noble Lord give the figures for the year before that which he quoted, which I believe were the lowest on record for quite a number of years?
Lord Skelmersdale: My Lords, in 1980 the figures were 130,000 houses; in 1981, 131,000 houses; in 1982, 166,000 houses—hardly the lowest on record.
Lord Underhill: My Lords, I was asking the noble Lord whether he will compare those figures with the figures for the previous year, because the general comment on house building figures is that they were the lowest for some 10 or 12 years.
Lord Skelmersdale: My Lords, my figures do not go back as far as 10 or 12 years ago. What I can say is that the trend under the last Government in respect of new house building starts was down between 1975 and 1979, and that from 1979 to 1983, as I have shown, the trend has been up. The noble Lord, Lord Underhill, may draw his own conclusions from that statement.
Baroness Masham of Ilton: My Lords, may I ask the noble Lord the Minister whether the trend in respect of new house building for the disabled is equally good? Also, can he find a way of speeding up social services departments, who sometimes hold up the adaption of ordinary houses which have to be converted to accommodate disabled people?
Lord Skelmersdale: My Lords, so far as housing for the disabled is concerned, we have to consider two points; not only house building but also house conversion. It is not, therefore, a matter of providing new, specially designed accommodation. More and more local authorities have been making provision for the needs of the disabled by adaptations to their own housing stock. Authorities are also increasingly making improvement grants available to disabled people wishing to adapt their houses. I am glad to be able to tell your Lordships that nearly five times as many adaptations and improvements were carried out last year as were made in 1978.
With regard to the problem of getting grants, where the local social services organisations have to approve particular types of adaptations, I realise that this is causing a problem and the Government intend to look at this.
Lord Northfield: My Lords, can the noble Lord, Lord Skelmersdale, say whether we are now making the much needed progress in improving the proportion of houses in the starter home range, at the bottom of the market? That is where we really need more homes, particularly with the ending of public sector house building. Is it not the case that at the bottom end, the position is getting better now thanks partly to the equity sharing system which many of us strongly support?
Lord Skelmersdale: My Lords, I am afraid that I do not have the breakdown which the noble Lord requests. With permission, I shall write to the noble Lord on this aspect, but I take the point he has made.
Baroness Lane-Fox: My Lords, can my noble friend the Minister say whether the volume of housing starts varies greatly in different areas of the country?
Lord Skelmersdale: Yes, my Lords; housing starts are bound to vary greatly in different areas of the country. This is because different areas of the country have different needs—one has only to look at the rural as compared with the metropolitan areas—and also because there is a political reason in particular places. I am not trying to cast aspersions in any particular direction, but I regret that that is a fact.
Lord Wallace of Coslany: My Lords, will the noble Lord tell the House how many of these new houses are
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attributable to local authority development, and how many are for sale or for rent?
Lord Skelmersdale: My Lords, I do not have the annual figures but I do have the percentages. The public sector starts were up 29 per cent. and the private sector starts were up 41 per cent.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that dinner will be available at the usual time of 7.30 this evening. The Committee stage of the Housing and Building Control Bill will be adjourned at approximately 7.30 p.m. for approximately one hour, and during this adjournment the Dogs (Northern Ireland) Order 1983 will be taken.
Car Tax Bill [H.L.]
Bill read a second time, and referred to the Joint Committee on Consolidation Bills.
Value Added Tax Bill [H.L.]
Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

Housing and Building Control Bill
3 p.m.
The Minister of State, Department of the Environment (Lord Bellwin): My Lords, I beg to move that the House do now resolve itself into Committee on the Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Bellwin.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Extension to cases where landlord does not own freehold]:
On Question, Whether Clause 1 shall stand part of the Bill?
Baroness Gardner of Parkes: I would ask for clarification from the Minister as to whether this clause would cover the people of Dulwich who are so keen to buy their homes—there are 2,000 there whose freehold is owned by a charity—or whether they would come under Clause 2. To clarify the position, the property is owned by Southwark Council, and these people would have a right to buy under the 1980 Housing Act but for the fact that the ground is owned by a charity. I understand that the charity would have been willing to negotiate but Southwark Council does not wish people to have the right. I wonder whether their position would be covered by Clause 1 or Clause 2.
Lord Bellwin: As we shall see when we come to Clause 2, if the land is owned by a charity and was acquired by that charity with its own funds, then that will exclude them from the right to buy. To be able to answer my noble friend one would need to know the circumstances of the particular dwellings to which she refers.
Baroness Gardner of Parkes: I thank my noble friend.
Clause 1 agreed to.
Schedule 1 [Extension of right to buy to cases where landlord does not own freehold.]:
Lord Bellwin Lord Bellwin moved Amendment No. 1:
Page 47, line 23, at end insert—
("(2A) Where the landlord's interest in the dwelling-house is a lease, a certificate under subsection (1)(b) above shall also state particulars of that lease and, with respect to each superior title, the following particulars, namely—

(a) where it is registered, the title number;

(b) where it is not registered, whether it was investigated in the usual way on the grant of the landlord's lease.").

The noble Lord said: With this amendment I would also, with permission, wish to speak to Amendments Nos. 2, 3 and 82. These four amendments are all technical amendments to Schedule 1 to the Bill, which lays down the terms on which tenants of leasehold property will be able to buy long leases of their homes under Clause 1. I do not think these amendments need detain your Lordships for long; I will try to be as brief as I can in explaining their effect.
The first amendment deals with a point about land registration. Where the landlord's interest is leasehold and his title is not registered at Her Majesty's Land Registry, the new Section 20(1)(b) of the 1980 Act (introduced by paragraph 6 of Schedule 1 to the Bill) will require the landlord to give the tenant a certificate of title in respect of the sub-lease he will acquire by exercising the right to buy. This follows the simplified proof of title procedure by way of certificates of title adopted for the right to buy in Section 20(2) of the 1980 Act. The purpose of this amendment is to ensure that the certificate of title in leasehold cases gives particulars of all superior titles, including the title out of which the landlord's own leasehold interest was created. The particulars relate to whether the title is registered, and, if not, whether it was investigated in the usual way. The amendment will help to enable the Land Registry to register a purchase with absolute title wherever possible.
The second amendment deals with two points which have recently come to our notice about the possibility of conflict between the terms of a landlord's head-lease and the terms of a right to buy sub-lease. Where a tenant of leasehold property exercises the right to buy, he will get a sub-lease, which must conform with Schedule 2 to the 1980 Act as amended by Schedule 1 to this Bill. Schedule 2 already provides that certain of the landlord's rights and obligations under his head-lease must be reflected in the tenant's sub-lease. However, we have concluded that there are one or two areas in which there could be uncertainty about the relationship between head-lease and sub-lease.
First, a breach by the landlord of covenants in his head-lease coud lead to forfeiture of the lease. In those circumstances, the right to buy sub-lease would generally fall as well (subject to the important protection for the sub-lease contained in Section 146(4) of the Law of Property Act 1925 enabling him to apply for relief from forfeiture). We therefore think that the Bill should provide that, in all cases, there is an implied covenant on the part of the landlord to observe the terms of his head-lease unless these fall to be discharged by the tenant. This is provided for in sub-paragraph (2) of the new paragraph 13A.
Secondly, there may possibly be cases where a landlord will not be able to discharge his normal responsibilities to the right to buy purchaser for repairs because of the terms of the landlord's own head-lease. The head-lease may, for instance, provide that the landlord shall not undertake any work on the structure or exterior of the building, to ensure that such work is wholly within the freeholder's or a superior landlord's control. In these circumstances we think that the landlord should be relieved from those obligations which he is precluded from carrying out, and sub-paragraph (3) of the new paragraph 13A so provides. We have also concluded that it is necessary to provide that where the right to buy landlord is not himself in a position to carry out repairs, he is under an obligation to enforce any covenants in the head-lease which place an obligation on the superior landlord to carry out repairs or remedy structural defects. This is provided for in sub-paragraph (4) of paragraph 13A.
As for Amendment No. 3 on the Marshalled List this simply applies to the new provisions which I have just described—the existing provisions governing payment for repairs in respect of flats which are already embodied in paragraphs 15 and 16 of Schedule 2 to the 1980 Act. Their effect, broadly, is that the sub-lessee can be required to bear only a reasonable part of the costs of carrying out repairs, and that special rules apply to the costs of making-good structural defects. I will gladly explain these provisions in more detail if your Lordships so wish. But, as I say, this amendment is really no more than a technical change to an existing provision, to take account of the second group of amendments I described just now.
Finally, I come to Amendment No. 82. As your Lordships will recognise, this is merely a consequential amendment to Amendment No. 3, which requires no explanation from me. I trust that your Lordships will agree these four technical amendments to Schedule 1 to the Bill. I beg to move.
Lord Leatherland: While I fully understand every word the noble Lord has said, I wonder whether the ordinary tenant will understand quite so clearly. As this measure is from start to finish a fairly complicated one, will the Government, when ultimately this measure is passed, arrange for a simple guide to be available to tenants through their council offices?
Lord Bellwin: First of all, we are talking here not specifically of local authority housing as such, so it really does not apply. On the other hand, I entirely take the point the noble Lord makes, that these are complex technical matters. I could have moved the amendments by saying less about them, but I think it

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is important that we have on the record not just what the proposals are but the reasons for them, so that those interested and concerned will have a chance to read them in Hansard. If the noble Lord would like more explanation he knows I would be glad to give it, although, as he says, he personally has fully followed the details.
Lord Gisborough: I feel concerned with regard to the justice of this provision. I wonder whether my noble friend could at this stage give some reassurance with regard to values from the point of view of the head lessor of the ground lease. The ground lessor originally let the land to the person who built, the lessee, at a low rate because he would have his value back at the end of 100 years, or whatever. Having entered into a perfectly reasonable agreement from all sides, then halfway through this period, just like in the Leasehold Reform Act, the Government say "You have given this land cheap but we are now going to remove it from you with inadequate value." If this is to happen I am not happy that the original lessor will get his proper value for the land.
Lord Bellwin: I understand the point that my noble friend makes, but the actual amount that the original head lease owner will obtain is surely a matter for negotiation when the time applies. I would not have thought that the legislation now being proposed would in any way disadvantage him. Perhaps my noble friend would like to take this up with me and discuss it in more detail. I shall be glad to arrange for him to do so; but I think that his concern need not be as bad as he thinks.
On Question, amendment agreed to.
Lord Bellwin Lord Bellwin moved Amendment No. 2:
Page 48, leave out lines 46 to 48 and insert—
("(3) In paragraph 13 of that Schedule (convenants by landlord)—

(a) sub-paragraph (1) shall be renumbered as sub-paragraph (1A) of that paragraph;

(b) at the beginning of that provision as so renumbered there shall be inserted the words "Subject to paragraph 13A(3) below";

(c) immediately before that provision as so renumbered there shall be inserted the following sub-paragraph—

"(1) This paragraph applies where the dwelling-house is a fiat."; and

(d) in sub-paragraph (2) for the words "sub-paragraph (1) (a)" there shall be substituted the words "sub-paragragh (1A)(a)".

(3A) After paragraph 13 of that Schedule there shall be inserted the following paragraph—
"13A.—(1) This paragraph applies where the landlord's interest in the dwelling-house is leasehold.
(2) There shall be implied, by virtue of this Schedule, a covenant by the landlord to pay the rent reserved by the landlord's lease and, except in so far as they fall to be dischared by the tenant, to discharge its obligations under the covenants contained in that lease.
(3) There shall not be implied by virtue of paragraph 13(1A) above any covenant the obligations under which the landlord is precluded from discharging by a provision contained in the landlord's lease or a superior lease.
(4) Where the landlord's lease or a superior lease contains a covenant by a superior landlord to the like effect as a covenant which, but for sub-paragraph (3) above, would be implied by virtue of paragraph 13(1A) above, there shall be implied, by virtue of this Schedule, a covenant by the landlord to use its best endeavours to secure that the superior landlord's obligations under the first mentioned covenant are discharged.")
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Bellwin Lord Bellwin moved Amendment No. 3:
Page 49, line 7, at end insert—
("(5) Paragraph 15 of that Schedule (avoidance of certain agreements) shall be renumbered as sub-paragraph (1) of that paragraph, in that provision as so renumbered paragraph (b) and the words "and paragraph 16 below" shall be omitted and after that provision as so renumbered there shall be inserted the following sub-paragraph—
"(2) Where the dwelling-house is a flat, any provision of the lease or of any agreement collateral to it shall be void in so far as it purports to enable the landlord or a superior landlord to recover from the tenant any part of—

(a) any costs incurred by the landlord in discharging or insuring against its obligations under a covenant implied by virtue of paragraph 13(1A)(a) or (b) above; or

(b) any costs incurred by a superior landlord in discharging or insuring against his obligations under a covenant to the like effect as a covenant which, but for paragraph 13A(3) above, would be so implied;

but subject to paragraph 16 below.")
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Clause 2 [Extension to cases where landlord is a charity]:
3.12 p.m.
Lord Bellwin Lord Bellwin moved Amendment No. 4:
Page 2, leave out lines 18 to 32 and insert—
("2.—(1) After paragraph 2 of Part I of schedule 1 to the 1980 Act (circumstances in which right to buy does not arise) there shall be inserted the following paragraph—
"2A.—(1) The landlord is a housing association or housing trust which (in either case) is a charity within the meaning of the Charities Act 1960 and—

(a) a grant under section 29 of the 1974 Act has not been paid in respect of a housing project which consisted of or included—

(i) the acquisition of the dwelling-house;

(ii) the acquisition of a building and the provision of the dwelling-house by means of the conversion of that building; or

(iii) the acquisition of land and the construction of the dwelling-house on that land; or

(b) where such a grant has been so paid, the grant or, as the case may require, so much of it as was attributable to the acquisition, provision or construction of the dwelling-house has been repaid (in whole or in part) under subsection (3) or, as the case may be, subsection (5) of section 30 of that Act.

(2) A certificate given by the Secretary of State for the purposes of this paragraph shall be evidence of the matters stated in it".
(1A) For subsections (1) and (2) of section 2 of the 1980 Act (exceptions to right to buy) there shall be substituted the following subsections—
"(1) The right to buy does not arise if the landlord is—

(a) a housing trust which is a charity within the meaning of the Charities Act 1960; or

(b) a housing association,

which (in either case) has at no time received a grant under section 119(3) of the 1957 Act, section 29, 31, 32 or 33 of the 1974 Act or any enactment mentioned in paragraph 2 of Schedule 2 to that Act.
(2) The right to buy does not arise if the landlord is a housing association which falls within paragraph (d) of section 15(3) of the 1977 Act (certain societies registered under the Industrial and Provident Societies Act 1965).".
(1B) In sections 1(1)(c), 12(1), 19(1) and (4) and 22(3) of the 1980 Act after the words "housing association" there shall be inserted the words "or housing trust" and in the said section 22(3) after the word "association", in the second and third places where it occurs, there shall be inserted the words "or trust".").
The noble Lord said: With this amendment I propose to speak also to Amendments Nos. 16, 23 and 79 which are all relevant to, or consequential on, Amendment No. 4. This group of amendments is not as daunting as it may look. The aim is largely to improve the drafting of Clause 2(1) and there is only one substantive change which noble Lords will, I am sure, find acceptable. I shall describe this first and then describe briefly the drafting changes which we wish to make with these amendments.
As Clause 2 stands, a dwelling owned by a charitable housing association or housing trust which had originally been provided with housing association grant would attract the right to buy even if the grant had been repaid. It is unlikely that these circumstances would arise, but it is possible. Therefore, we have thought it right to remove this potential anomaly from the Bill. This is achieved by the new subparagraph 2A(1)(b) of Schedule 1 to the 1980 Act. It is not our policy that tenants of charitable housing associations living in dwellings which are no longer publicly funded should have the right to buy. I hope that noble Lords will agree that this is a reasonable and welcome change.
The incorporation of the repaid grant condition in Clause 2(1) would have made Section 2 of the 1980 Act, which Clause 2(1) amends, rather unwieldy. We are therefore proposing in Amendment No. 4 to recast Clause 2(1). The changes are purely drafting changes. Unless your Lordships wish me to go into further detail I will resist the temptation to do so. I beg to move.
Baroness Birk: I thank the Minister for explaining this amendment. As he says, it makes very little difference to the Bill, and even the point which he says was a more substantial one is not the aspect that is worrying us all. There are a number of amendments which follow which seek, with the best possible intentions, to modify this clause. Personally—and this is no discourtesy to the movers of these amendments—I shall not be speaking to them and I believe that some of my noble friends may take the same view. We feel—and this view is shared by many across the Committee —that the whole clause is really the problem in this Bill. At this stage of the proceedings there does not seem to be a great deal of point in trying to prune the branches of what is an extremely unhealthy tree.
Lord Evans of Claughton: May I briefly say that in dealing with this amendment one must, I suppose, be thankful for small mercies. This is an extremely small mercy. I shall be glad if the noble Lord the Minister will speculate as to how much housing association land or how many buildings this provision will apply to. I should think it would be very small indeed. Having said that, I follow the noble Baroness in that we on these Benches—and, I believe, those of my friends in the Social Democratic Party—take the view that the whole nub of the Bill lies in Clause 2 and that is where the main debate should take place.
Lord Bellwin: I should not like to speculate on the number of dwellings affected although I agree with the noble Lord, Lord Evans of Claughton, that it is likely to be small. Nevertheless, if something is right then it is right. This is the theme of what we will be discussing. May I say to my noble friends who will be speaking on the next amendments—and not in any way to preempt what they will say—that the Government are not without sympathy to the points that they make. However, I shall reserve my observations on those matters until we come to those amendments.
Baroness Gardner of Parkes: May I return to the point that I raised on Clause 1 and ask the Minister whether anything in this amendment or this clause helps these people? I return to this point because there are over 2,000 people involved. I refer to where the charity which owns the land is willing to enter into negotiations but the council which owns the lease—not, I emphasise, the charity or housing association—refuses to negotiate deliberately to thwart those who wish to buy their own council homes. Is there anything in this clause that will help those people? I am not speaking about a case where a charity is unwilling but about a case where it is willing to part with the land and where the intervening landlord, the council, refuses to honour the wishes of the people.
Lord Bellwin: Again, it is very difficult without knowing the specific circumstances in detail to answer; but in principle, so far as the councils are concerned, under the 1980 Act the tenants have a right to buy. If there is the difficulty that my noble friend mentions and she would like me to look at it in detail, I shall be happy to do so. It is very hard to say specifically and categorically, without knowing the details, why there is the problem to which she refers when the 1980 Act is so clear. However, I shall gladly look into it.
Baroness Gardner of Parkes: I thank the Minister for that reply.
On Question, amendment agreed to.
Lord Swinfen Lord Swinfen moved Amendment No. 5:
Page 2, line 32, at end insert—
("Provided that those parts of buildings or groups of buildings occupied by able bodied persons in a development having features which are substantially different from those of ordinary dwelling-houses and which are designed to make it suitable for occupation by physically or mentally handicapped persons or the elderly infirm are excluded from the right to buy provisions of this section.").
The noble Lord said: This amendment is an attempt to ameliorate some of the provisions of Clause 2 giving the right to buy to tenants of charitable housing associations. In particular, it deals with rather special and relatively new methods of looking after people who are physically or mentally handicapped, or the aged or infirm. It is an attempt to make certain that they are not confined to ghettoes on their own, but live in a normal community with younger, more able-bodied people around them who are in a position to help.
In a number of these groups of dwellings those able-bodied people who live in perfectly ordinary dwellings, whether flats or bungalows, are not necessarily employed by the housing association but often are employed by the disabled people themselves. So it is

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essential that accommodation close at hand be provided for them.
The position may alter as the type of disability in these specially designed dwellings changes. There may be a person who at the moment needs two people to look after him during any one week on a shared hours basis who, for one reason or another, moves away from the complex and the dwelling is taken over by someone who needs a greater number of people to care for him.
In my view it is essential that the accommodation for the able-bodied helpers be available. It is also necessary that the charitable housing association should have the ability to alter the balance between those who are handicapped for one reason or another and the able-bodied people who are there to look after them. To sell off those dwellings which are reserved at this stage for the able-bodied helpers, and in some instances end up with no help available for those people who are handicapped, would be like removing an artificial limb and saying, "There you are. It does not matter. Your limb is more useful to someone else. Carry on with only one leg". I beg to move.
Lord Bellwin: As I indicated a few moments ago, we are not unsympathetic at all to this amendment. My noble friend Lord Swinfen has indicated that he has connections with a charitable housing association which has a scheme, or schemes, where arrangements of the kind that he described exist. I think that he might be prepared to agree that they are not common by any means. We for our part know of only a few schemes where they operate. However, I can understand that disabled tenants who are dependent on help from their co-tenants and who might not otherwise be able to manage to live in self-contained accommodation, might be concerned at the possibility of the withdrawal of that help.
The amendment before us is not acceptable in its present form for a number of reasons on which I shall not elaborate unless my noble friend presses me to do so. I think that what he really wants to know is what the Government's feelings are about this. We are sympathetic to the point that he makes. If he is prepared to withdraw his amendment, we shall certainly undertake to consider the issue that he has raised to see what we can bring back to dispense with the matter.
Lord Swinfen: I thank my noble friend for that reply which gives me much encouragement. I do not know what will happen to this clause in the course of this evening, but if it remains in the Bill it certainly needs to be amended. I hope that between now and the next stage I can discuss the matter further with my noble friend or with his officials with a view to coming back, if necessary, at a later stage with an amendment that is very much more suitably drafted. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.23 p.m.
Lord Strathcona and Mount Royal Lord Strathcona and Mount Royal moved Amendment No. 6:
Page 2, line 32, at end insert—
("( ) In part 1 of Schedule 1 to the 1980 Act there shall be inserted after paragraph 5 the following paragraph—
"6. The landlord is a housing trust which is a charity within the meaning of the Charities Act 1960 or the landlord is a housing association which either—

(a) is such a charity; or

(b) falls within paragraph (d) of section 15(3) of the 1977 Act (certain societies regulated under the Industrial and Provident Societies act 1975)

and the dwelling-house is one which it is the practice of the landlord to let for occupation by persons who have special needs or is one of a group of dwelling-houses in which more than half of the dwelling-houses comprised in that group is let to persons of special needs.
For the purposes of this paragraph "special needs" shall be taken to mean persons whose circumstances (other than merely financial circumstances) make it especially difficult for them to satisfy their need for housing.".").
The noble Lord said: This is by way of being what I might describe as a damage limitation amendment. If the Government are determined to press ahead with Clause 2, then this amendment seeks to exempt some of the areas where many of us believe that it would do the most harm. The amendment is designed to protect those in special needs dwellings, which may be let as secure tenancies, but which are as vital to the rehabilitative process as the hostels and shared accommodation which are an early part of the process. The Government's exemptions which cover just the elderly and the disabled, we believe, do not go far enough; nor does the exemption for hostels and shared housing. I think it is equally impractical to expect charities to be able to go to court to evict tenants seeking to exercise the right to buy on the basis that they no longer fall within the objectives of the charity. When I say that it is impractical, to put it mildly, it would go against the grain of those who are running these charities.
I am well aware that many noble Lords are going to get down to the real in-fighting on Clause 2 itself as a whole. I think that it would be fair to say that Clause 2 has not so far flushed out very many friends in this House. Even supporters of the concept of the right to buy, like myself, feel that perhaps more harm than good is being done by this attempt at what I might describe as shifting the frontiers of the anomaly which has been created by the right to buy. Indeed, it seems to me that this is the only advantage which has been claimed for the clause. On the other hand, the clause has been much criticised, and I do not doubt that it will be more criticised—and rightly. I do not intend to go into all the objections in principle. I have no doubt that later on many noble Lords, both more eloquent and better versed in the problems than I, will express these matters much more effectively than I can.
What I am concerned about in this amendment is the practical effects. Let me at the outset admit that opinions differ on this as well. There are those who claim that the critics of Clause 2 exaggerate the potential damage. What I think I can say to the House without fear of contradiction is that, from all that I can discover and from all the letters that I have received—and I have received a good few—it is the almost unanimous feeling of those who work in the small charitable associations that they believe passionately that the provisions in Clause 2 will irreparably damage their activities and, indeed, will undermine the whole concept of voluntary involvement in the relief of housing stress. I believe

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that that is an unchallengeable statement at the present time.
Lord Bellwin: No. That is not so.
Lord Strathcona and Mount Royal: Voluntary participation is very dear to the hearts of many of us in this country. Perhaps it is best exemplified by that charming but nevertheless cost-effective anomaly, the Royal National Lifeboat Institution. Nobody could begin to justify an organisation of that kind but it does happen to work.
What we believe is needed is a clear exemption for flats or dwelling-houses which form part of meeting a particular need or a particular philosophy. In the amendment we have used the definition of "special needs" that has already been used in the Housing Act 1980 because it gives a measure of flexibility in defining special needs, which a list of today's problems with people such as drug abusers, alcoholics and ex-offenders would not. Where charitable associations are providing special needs projects, it is important not to overlook the fact that this is an area where voluntary effort by community members and volunteers is most evident and most valuable. If this clause were to go through as it stands, we believe that it would have a devastating effect on this voluntary commitment.
I hope that other noble Lords who are involved in this field—and it is some years since I was—will be able to flesh out the bones of the case I am making, but I think that I should just very briefly mention some of the reasons which lie behind this feeling that is so passionately felt by the voluntary workers. There is the additional administrative complication of trying to manage a block of flats or a group of houses where the ownership is split. In particular, in cases where special needs are being met, there will be a breaching of the protective wall which some of the societies place around those who occupy their housing. It is difficult not to sound over-patronising when speaking about some of these issues, but we must be realistic and recognise that some of the people who occupy the houses, and about whom we are speaking, are not the most adequate when it comes to managing their own lives. One of the worries that one has is that such people may succumb to the temptation to make a quick profit by buying their house. Possibly they will be put up to it by somebody whose motives may not be wholly as admirable as the people who run the society, or indeed the person who occupies the house. The possibility of the wrong kind of outsider intruding into some of the sheltered housing organisations is regarded with great seriousness by those who run the organisations.
There is a further plain nuts and bolts issue: that it will be difficult and expensive for those who administer houses of this kind to organise the right to buy, with all the valuations, the agents' fees, and all the obvious complications which that will entail.
I think that I have already spoken about the simple exacerbation of the inevitable management problems which housing associations of the kind that we are considering experience. I have said that there is the more general danger that what is being proposed will switch off the flow of volunteer effort. It may also—and I have many letters to indicate this—have
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the effect of turning off the tap of donations to charitable societies or associations of this kind. Within the last few days we have had a letter from a housing association which opened only on Saturday, and the chairman said quite simply,
"If Clause 2 goes through in its present form, I shall resign".
I do not believe that that is an isolated instance.
So I am saying to the Government that I hope that they will look sympathetically at an amendment of this kind. If the particular amendment is not acceptable, I shall of course be happy to talk with my noble friend, whose sagacity on the whole matter I do not question for one moment; indeed, I respect it enormously. Nevertheless, I hope that the Government will be able to say that they are at least sympathetic to an amendment on these lines, and I hope, too, that in saying so they will make it rather easier for some of us who would wish to support them possibly later in the evening, when otherwise I think they will have a fairly rough time. I beg to move.
Baroness Elliot of Harwood: I wish briefly to support the amendment moved by the noble Lord, Lord Strathcona and Mount Royal. I do not know what is going to happen to the Bill, but the amendment at least meets some of the points that have been put to me and to many other people. Since for many years I was chairman of a housing committee and was connected with both charitable housing and local authority housing, I would say that it is most important that in a housing community there should be not only those people for whom special housing is provided—such as the elderly and the crippled—but also ordinary people, too. We do not want a community that is divided. After all, we live in a world in which there are people who are well, as well as others who are ill, or disabled. We do not segregate them; we try to bring them into the community, so that as much as possible of their lives can be led in normal conditions.
If the amendment is accepted, it will be a step towards trying to make housing more of a community effort, and no one will be able to come along and say, "My house belongs to the local authority, but I am in it, and I want to buy it", probably only to sell it a few years later at a very much higher price. I think that such a situation would wreck the whole community idea relating to house building. I entirely support what the noble Lord, Lord Strathcona, has said. I think that it represents the views of a great many charitable organisations and housing authorities, too.
Lord Bellwin: My noble friend said that one of the statements that he made was unchallengeable. I know that he will appreciate that I shall want to challenge it later, but I should not wish at this stage to enter the Clause 2 stand part debate. I shall reserve until later what I want to say about that. But I assure the noble Lord that faced though I am with opposition, I nevertheless believe that the Government's case is a very powerful one. Certainly I know that my noble friend of all people will listen to it very carefully and judge it on its merits.
However, so far as the present amendment is concerned, the Government are not unsympathetic to the points that have been made. We think that there

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are problems with the amendment in the way that it is drafted, but the whole question of groups of this kind is one that we should want to look at where there are special needs and so on. I gladly give my noble friend the assurance that if he will withdraw the amendment, we shall want to look into the matter very carefully. My noble friend knows that I cannot tell him what will be the outcome, and I think that he also knows what I mean when I say that we are not unsympathetic and we shall see what we can do with it. I think that there is a point here and we want to take care of it.
However, in case your Lordships wish to return to the charge when we consider Clause 2 in general, on the split management point I would remind your Lordships' Committee that non-charitable housing associations have had no problem with this in the last two-and-three-quarter years, nor have local authorities had problems with it in regard to the accommodation of that kind with which they deal. However, at the moment we are talking about the amendment, and I hope that in the light of the assurance that I have given my noble friend, he will feel able to withdraw it.
Baroness Masham of Ilton: The noble Lord looked around to gain some more support, and I should like to say that I support his amendment, and that of the noble Lord, Lord Swinfen. It is terribly difficult for the movers of the amendments to know what to do until we know what is to happen to the whole clause. That is why I think that it is perhaps better to wait.
Lord Strathcona and Mount Royal: In face of the soft answer from the Minister which turneth away wrath, clearly I have no alternative but to withdraw the amendment; he is being so helpful. However, I must say that what slightly surprises me is the timing of this kind of a reaction. It is not as though this is a wholly new concept, and the noble Lord the Minister knows very well that he is in for a big battle on the whole question of the clause. He leaves us in a slightly unsatisfactory state of affairs. He says, "I am going to do something to try to help those of you who feel as you do", and I suspect that there are many other noble Lords, who have more experience of the matter than I do, who would wish to be satisfied on it. I believe that the Minister is now going to place them in an extremely awkward situation where they will have to rely on something that he is to bring forward at Report stage, on the assumption that Clause 2 is still in the Bill.
I think that in constitutional terms I have no alternative but to thank the noble Lord for what he has said to me, but I must say that I am not terribly happy about the way in which the argument is developing. I am sorry to be less than totally grateful to him for what he has done. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.40 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 7:
Page 3, line 10, at end insert—
("(4) Where a secure tenant gives notice of intention of exercising the right to buy under the terms of subsection (1) above and the landlord considers that such action could lead to a situation contrary to the underlying purpose of the charitable trust
818
or association, the landlord shall have the right of appeal to the Secretary of State.
(5) In considering appeals under subsection (4) above, the Secretary of State shall give due consideration to the long term effect of population balance in the County and District concerned as well as to the underlying purpose of the charitable trust or association of the appellant.").
The noble Lord said: I gave the main background to this amendment at Second Reading on 11th April, at cols. 53 and 54. I do not propose to repeat all that, because I gave my reasons rather fully. The point at issue is that, unlike some noble Lords who have spoken and unlike, I am sure, many noble Lords when we come to discuss Clause 2 generally, I welcome the clause in general terms and accept the various points that the Government have made in saying that it is nothing like so ferocious a clause as might be expected. However, there is no doubt that circumstances can arise in which the charities, if called upon to comply with the clause as it stands, when all the safeguards about the sick, the ailing and that sort of thing have been swept away, will find that the purpose for which the charity was set up is undermined.
The purpose of my amendment is to give the landlords, who are the charity trust people, the chance to appeal to the Secretary of State in what will inevitably be a grey area, and to explain that in their opinion not only is the sale of the house against the purpose for which the charity was set up but also that in certain parts of the country—your Lordships will know that I am speaking of the Isle of Wight—it could have an adverse effect on the population balance in the long term. This is an important point in a relatively small and cohesive community such as the Isle of Wight.
I have taken a good look at the 1980 Act and at this Bill to see whether there is already in existence any means for the Secretary of State to listen to appeals from the landlord. I find that the situation is really the other way round. Clause 23 of the 1980 Act, which looked hopeful to me, deals with the power of the Secretary of State to intervene. That is true, but he is only really intervening on behalf of the prospective buyer. That is, of course, absolutely fair. The prospective buyer needs to know that the Secretary of State is capable of intervening on his behalf in doubtful areas or in circumstances where the landlord is not complying with what will ultimately be the law.
I do not, however, believe that it is unreasonable to say to the Government, for the reasons that I have given, that there will be occasions when it is only right that the charitable landlord himself should be able to appeal, in roughly the terms of my amendment. I accept, as always, that the amendment itself may not be perfect and that it could be improved. I hope, however, that, in the same way that my noble friend the Minister has made encouraging remarks in response to my noble friend Lord Swinfen and to my noble friend Lord Strathcona and Mount Royal, he will be able to make them to me, too. I beg to move.
Lord Bellwin: I do not know whether my noble friend will find my remarks encouraging, although I hope he will. As he says, the purpose of the amendment is that charitable housing associations and housing trusts whose tenants claim the right to buy under Clause 2 should have, in certain circumstances, a right of appeal to the Secretary of State. The right of

819
appeal would be exercisable where the charity took the view that the sale of the dwelling would be contrary to the underlying purpose of the charity. By this, my noble friend Lord Mottistone presumably means that the sale would conflict with the primary objects of the charity.
The Secretary of State, in considering an appeal, is to take into account,
"the long term effect of population balance in the County and District concerned".
I presume that by this wording my noble friend means that the Secretary of State must consider the supply of rented accommodation in the area, and the demand for it. My noble friend is, I know, concerned about the availability of rented accommodation in rural areas, and, as he has stated, not for the first time, particularly in the Isle of Wight. The people of the Isle of Wight are fortunate to have such an assiduous advocate of all their affairs.
It is clear that my noble friend has some sympathy with the aim of Clause 2—thankfully. His amendment would place the decision whether the right to buy would arise in any given case in the hands of the Secretary of State rather than those of the trustees of the charity, which would have been the effect of a number of amendments to the clause tabled in another place. I am afraid, however, that the amendment is not acceptable. As your Lordships are aware, we take the view that tenants of charitable housing associations living in dwellings provided by public money in the form of housing association grants, should have the right to buy in the same way as tenants of non-charitable associations. Our main justification for this extension of the right to buy is that these tenants deserve equality of treatment. Since the purpose of most, if not all, charitable housing associations is to provide rented accommodation, it is likely that many associations would lodge appeals. The effect could be largely to undermine the aim of Clause 2.
As to the requirement for the Secretary of State to take account of local circumstances, this seems to me an illogical condition to attach to Clause 2. If the tenants of local authority and non-charitable housing associations have the right to buy regardless of the supply of rented accommodation in their locality, why should the tenants of charitable associations be treated differently? I understand the reasons why my noble friend has put down the amendment. I doubt, however, that Clause 2 will have the adverse effect that he fears. All the evidence from the way in which the 1980 Act has worked suggests that the number of sales will be greatly exceeded by the number of new dwellings provided.
So far as the Isle of Wight is concerned, I would point out to my noble friend that a large proportion of the island—I think that this is really the answer to his particular fear—is designated as an area of outstanding natural beauty. The effect of this is that the housing association, when selling a property, may impose a covenant under Section 19 of the Housing Act 1980 limiting its resale without consent to someone who has lived or worked in the area in question for three years or, subject to the Housing Corporation's consent, a ten-year right of pre-emption requiring an offer of resale to the former landlord. These restrictions on
820
resale are designed to protect the availability of accommodation for local people in rural areas where there are particular problems of supply. I hope that this point, in so far as the Isle of Wight is concerned, will satisfy my noble friend, at least sufficiently to enable him to withdraw the amendment.
Lord Mottistone: I thank my noble friend for a lot of what he said. I take note of what he said about an area of outstanding natural beauty, which, of course, the Isle of Wight is. I am not, however, entirely happy. I shall not press the amendment at this stage. I shall seek to find another means of producing a circumstance which provides some way of appealing without all the expense of going to court. It will always be possible to go to court in doubtful situations. As my noble friend Lord Strathcona and Mount Royal has already stated, that is all very well, but the people who run these organisations do not like to do that sort of thing to tenants. Nor do voluntarily-run charitable organisations wish to risk the great expenditure that is always involved in taking a matter to court. It is always a dilemma that there is nothing to which one can appeal where there are grey areas.
All the Bills that we carefully produce have grey areas within them. It is a shame that these small people do not have the chance to get things put right without going to court. I hope that my noble and learned friend the Lord Advocate, who I saw scratching his head, is not hurt by the thought that the lawyers always seem to win out on these occasions, and that the small organisations suffer. With those remarks, at this stage I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Coleraine Lord Coleraine moved Amendment No. 8:
Page 3, line 10, at end insert—
("(4) Where a housing association or housing trust which (in either case) is a charity within the meaning of the Charities Act 1960 has granted a secure tenancy of a dwelling-house and the tenancy is not for the time being such a tenancy as the association or trust might lawfully have granted when the tenancy was granted, then and for so long as the tenancy shall not be such a tenancy the dwelling-house shall be deemed to be held by the association or trust as an investment of charitable funds.").
The noble Lord said: I beg to move amendment No. 8. I hope that the noble Baroness, Lady Birk, will accept that the amendment I am moving is not in the strictest and purest sense a mere pruning of the branches of the tree of Clause 2. I seek by this amendment to clarify the law as it applies to charitable housing associations or trusts in cases where tenants have prospered and ought, it may be said, either to become purchasers or to move into non-charitable housing. The view of the housing associations, supported by the Charity Commission, is that although it would be lawful for charities to evict such tenants, it is really not practicable for them to do so.
On the other hand, the Government's view expressed on 18th January this year by the Minister in Standing Committee F in another place at cols. 306 and 307 was that:
"the test of necessity is one which I am advised that in law should be applied not only on initial letting but in relation to continued occupation. Charities therefore need to keep the circumstances of their tenants under review so as to verify that they remain in need and therefore proper beneficiaries of the charity."
The Minister went on to temper his advice to charities by adding that it does not mean that an eviction action

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is necessary whenever a tenant's condition changes. But he implied that a charity must seriously consider action whenever:
"any substantial changes with long-term effects take place."
I ask the Committee to take the view that a charity should not be under a legal compulsion of any sort to evict its tenants if they prosper. That is what the amendment seeks to accomplish. It does so by declaring the law to be that where a charitable tenant prospers, the charity may treat his house or flat as an investment rather than as a home to be kept occupied by a person in necessitous circumstances.
On Second Reading I referred to the curious situation that a charity might be obliged, on the Government's view of the law, to evict its tenant but might nevertheless be in no position to do so because it cannot show, as it would be required to show, that suitable accommodation will be available for the tenant when the court order is made. After I had tabled my amendment I heard from my noble friend about the point that I had made, and I heard in terms which suggested to me that in practice Section 34 of the 1980 Act has driven a coach and horses through the Government's view of the law as I have described it.
I would ask my noble friend one question—namely: would he agree that no charity need be concerned about a possible requirement to dispossess its tenants when they cease to be in necessitous circumstances unless the charity is able, or ought to be able, to demonstrate to a court that suitable alternative accommodation is available for the tenant in question? An assurance to that effect would be a relief to officers of charities and to any tenants who might have been worried about their standing in their homes. I beg to move.
Lord Bellwin: My noble friend's objective in bringing forward this amendment is to absolve the trustees of charitable housing associations and housing trusts of the need to try to obtain possession of dwellings let to secure tenants who were not in necessitous circumstances, and whose continued occupation of the dwelling might therefore be held to be in conflict with the objects of the charity. The amendment deems that such dwellings should be held as an investment by the charity, rather than as part of its operational land, for so long as the tenant remains in occupation and is not in necessitous circumstances. My noble friend has based the amendment on some advice given some years ago by the Charity Commission to the National Federation of Housing Associations. I think that it is open to doubt whether an amendment of this kind would in fact achieve my noble friend's objective. However, I will confine my remarks to the issue of principle raised by the amendment which is, I am afraid, not acceptable to the Government.
Your Lordships will know that the Government take the view that some charitable housing associations have not conducted their letting activities in accordance with their object of providing relief for those in necessitous circumstances and may therefore have been acting in breach of trust. My honourable friend the Minister for Housing and Construction
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explained this matter fully in a statement which he made in Standing Committee F in another place on 18th January, as my noble friend Lord Coleraine has just said. Because these breaches of trust have been inadvertent, the Government have decided that it would be right to protect the position both of the charities and of their tenants by giving a form of "amnesty" which is effected by Clause 2(2) of the Bill. However, this amnesty applies only to tenancies which were granted before the publication date of the Bill—that is 5th November 1982. We have made it clear that as regards future lettings, charities will be expected to let in accordance with their charitable objects.
My noble friend Lord Coleraine is concerned about the difficulties which charitable housing associations might have in ensuring that in the future they do not act in breach of trust. He first raised this issue at Second Reading and, as he has said, I have written to him about it. We take the view that charities should not in practice have difficulty in complying with the requirements of charitable law: the fact that the majority of them have been able to do so in the past is evidence of that.
Furthermore we do not share the concern of my noble friend Lord Coleraine that charities would find it difficult to obtain possession of dwellings under Ground 9 of Schedule 4 to the 1980 Act. The court must be satisfied that the ground has been made out and that suitable alternative accommodation is available to the tenant. If the court refuses to grant possession it will either be because it does not consider the tenant's continued occupation of the dwelling to be in conflict with the charity's objects, in which case the charity is not acting in breach of trust, or becauase alternative accommodation is not available. In the latter case, provided that the charity could show that it has used its best endeavours to obtain possession, its officers would not be at risk. As for the association's charitable status this is primarily a matter for the Charity Commission. Tax relief is given by Inland Revenue to the extent that a charity's income or gains are applied for charitable purposes only and in granting relief the Inland Revenue would take all relevant factors into account.
I should like to refer my noble friend to Section 34 of the 1980 Act, a copy of which I have and which I will gladly make available to him. It applies to charities as it does to any other landlord. It may well be that what we have to do here is to continue the discussions which my noble friend and I have been having both in writing and in person, to clarify this point further. We will gladly do so for the benefit of those who are concerned and indeed for any other of your Lordships who may be equally concerned about this particular point.
Lord Coleraine: I have listened very carefully to what my noble friend has said and I must obviously apologise if the wording of my amendment has not made the type of change in the law that I was trying to achieve as clear as I would have liked. I appear to have left the impression with my noble friend that this is a rival clause to the amnesty provided by the Government in Clause 2(2) of the Bill. I have not wished to produce an amendment which would absolve housing

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associations, charitable or otherwise, or charitable housing trusts who grant tenancies wrongly in the first instance by giving them to people who cannot be said to be in necessitous circumstances. My intention was purely to cover the case where the circumstances of tenants change and what was a lawful tenancy becomes, under any reading of the Government's view of the matter, an unlawful tenancy. However, my noble friend has said a great deal to me and I should like to read what he has said. Therefore, for the time being I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
4.3 p.m.
The Earl of Selkirk: I beg to move that Clause 2 be omitted from the Bill.
The Chairman of Committees (Lord Aberdare): The Motion has to be: that Clause 2, as amended, stand part of the Bill?
The Earl of Selkirk: I beg to move that Clause 2 be omitted. I think it is fairly widely known that Lord Boyd of Merton was extremely anxious to speak on this clause. His very sudden death has robbed us of his long wisdom and experience in high office both at home and abroad. I can only express my most profound sympathy with Lady Boyd.
We have had a fair discussion on this and I think I can be reasonably short. I believe that there is a major issue of principle behind what is included in this clause. It has a long-range influence, and I believe that the methods of the Government in approaching this clause are anything but straightforward, and I think that the ends to be achieved may have an evil effect on both the social and the economic development which may take place. Perhaps I may simply give an example. The Government have been involved in breaking their word in what they gave to the charities. But I notice that recently the Government said that commercial contracts were very sacrosanct, no matter where the products of those contracts might be sent. Could not something similar be extended to charities in dealing with them?
Retrospective legislation is never very popular, but now it goes back a period of 10 years or so, to the 1974 Act, on which a great deal of this is based. This means that people who have been planning for the future over those 10 years have to a large extent had to disrupt what they are doing. There has been a good deal of talk as to whether or not the principles of charities have been invaded by this Bill. I am bound to say that the Solicitor-General's letter on this subject has not been received with universal conviction, and I think that it is rather a pity that he concluded his letter by saying that he might well prosecute quite a number of these charities. It was not what might be called a very friendly welcome.
The noble Lord, Lord Goodman—and I regret that he is not able to be with us today—is very conscious of the view that charities are not being very well treated. He said that in his experience there was a hostility to voluntary work somewhere deep down in the bowels of the Government machinery. That is interesting and
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very important because, to some extent, it reiterates what I remember the late Lord Beveridge saying a good many years ago. He was concerned that people would not think that the new welfare state made voluntary work unnecessary. He said that voluntary action for social progress had been an outstanding feature of this country. I do not think that it has been treated very well in this instance. Indeed, we have been the progenitor of much of this work, which has been extended to many places overseas.
My noble friend Lord Strathcona said that there has been much opposition. A unanimity of opposition has been very strongly expressed by a large number of people. I have received many letters, but I shall read one from the National Council of Women of Great Britain. It says:
"Charities providing accommodation should not be compelled to sell properties for substantial discounts to the benefit of the fortunate occupiers today and to the disadvantage of those needing homes to rent for the future. The Council is deeply concerned about the very serious problems with which these charities will be faced".
Once a house leaves the rented market, it will never return. I sought as best I could to understand the amendments of my noble friend Lord Bellwin. As he more or less said himself, they were largely drafting amendments and did not make a very great deal of difference.
I should like to look at the other side of this. If the methods of approach of the Government are regret-table, are they justified by the ends? In other words, do the ends justify the means by which they are obtained? Here I would look to the 1974 Act to see what people said then and what their intentions were at that time. This was an interesting and very unusual Act. There had just been a general election and the Labour Government took up the Bill which had been started by the Conservative Government. Mr. Rossi, speaking for the Opposition, said that that was virtually identical to the Tory Bill. Mr. Crosland explained on Second Reading what the Bill was for. He said on 6th May 1974, at col. 43:
"We felt that far too little was being done to cushion the adverse side effects of the decline in the privately rented sector".
Mrs. Thatcher, leading for the Opposition, said that she hoped that the Bill would give the housing association movement a much bigger role. There was one other comment that Mr. Crosland made, to which I should like to draw noble Lords' attention. He said that it would be intolerable to have the choice between owner-occupier or a tenant of a local authority.
I should just like to tell your Lordships what the housing trend has been over the last decade. Local authority houses have increased by 830,000 and they now number about 6½ million. Owner occupation has increased by 2½ million. That is, of course, largely due to the work of building societies, supported by the banks. It is going extremely well. Your Lordships may take it for granted that this day 2,000 people are entering owner occupation. Private rented houses fell by 1 million in 10 years. What does that mean? It means that before the end of this century there will be no private houses at all. That is the problem and that, I believe, was the basis of what Mr. Crosland was saying.
Lord Boyd-Carpenter: My noble friend means private leases.
The Earl of Selkirk: I beg your pardon, yes. I do not want to carry this much further, but I want to ask: do we want to see a case where there is no option between owner-occupation or a council house? If you think that this is wise for this country and that we shall benefit by it, then I ask you to vote against the Motion which I have moved. If you think it is a very dangerous situation, both for the social and for the economic evolution of this country, then I ask you to vote with me against the clause.
Baroness Birk: We could, in fact, have approached this debate on clause stand part by deleting the first part of Clause 2(1)(1), but we felt that it was only fair to the movers of the other amendments that they should have a fair hearing. Here I must apologise to the noble Lord, Lord Coleraine. I did not quite understand his amendment when I saw it in print; I had a slight idea what it was about, but if he would like to separate his amendment from the other amendments, that is fine. To debate this on clause stand part enables the movers of other amendments to have a fair hearing. It also enables the Minister to give, if I may put it this way, a few winks out of the back of his head about what he might be prepared to accept in the future if this clause stands. But it does not alter the anxiety and disquiet we all feel about the clause.
This clause has caused more anxiety and concern in this House, in another place and outside than almost any issue I can remember during my time in this House. I suppose one could compare it with the debate we had on school transport. It has a universality that transcends party lines; it transcends attitudes on a variety of closely held convictions, on a number of subjects where those joined together on this issue would in fact otherwise be political poles apart. Although I hope we have a mutual affection and respect for one another, I think that there are many issues on which the noble Earl, Lord Selkirk, and I, would not be in agreement, but we are certainly in total agreement today.
More than 1,000 charities have opposed this clause. Before Second Reading I think we were all deluged with papers and phone calls about this matter, but it is interesting that, after Second Reading, there have been further representations, more urgent, more passionate and more worried. The noble Earl, Lord Selkirk, read out the emergency resolution of the National Council of Women, which I also received. The Country Landowners' Association was another organisation from which I received a letter today, and I would not say I am in constant correspondence with them. The British Property Federation is also against this clause, and there are really no barriers in relation to attitudes of thought on this. We dissenters are a very mixed bag, and all the better and all the more telling for that.
This is really a compulsion to sell. I believe the Minister objected when this phrase was used by the noble Lord, Lord Hylton, on Second Reading; nevertheless, it is. For instance, if somebody has the right to buy my ring, of which I am very fond, despite the fact that I do not want to sell it, and for that reason I had to sell it, I should certainly feel I had been compelled to sell it and should not feel that I was doing so of my own free will. If we really look at the other side of the coin, as we have to on this, the housing
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associations are being put into a situation of being compelled to sell. Those which are covered by the terms of this Bill are not being given the chance of any option.
This affects somewhere between 80,000 and 100,000 houses. The noble Earl, Lord Selkirk, was absolutely correct when he spoke of the decline of the rented sector in this country. There are 2,700 housing associations, nearly all of which are manned by voluntary workers, and the effect on these is going to be shattering. The effect on the people who live in these houses at present is also going to be very bad. It may be all right for those who have the opportunity, and are able and willing, to buy their houses.
Another point which I will not develop now for it has been mentioned before, and was mentioned on Second Reading, is that there are a tremendous number of opportunities, unfortunately, to exploit and abuse this. I am afraid those opportunities will be taken because, where there is an inch, many people are going to extend it into a mile. So a mechanism is triggered by which the Government will recover the loans and grants originally paid to the charity. I would remind noble Lords that, in an amendment which we shall discuss later and which was put down by the Government, the discount now goes up to 60 per cent. when previously, in the 1980 Act, it was 50 per cent. This means that the associations will be further impoverished and the charity concerned will in most cases have no capital receipts from the sale of the properties. In short, its assets in that property will be entirely, or almost entirely, wiped out.
I am sure that, like other noble Lords, I could read out many really heartbreaking examples of associations, particularly some of the small ones, which have written saying what their plight is going to be, and there have been similar letters even from the non-charitable bodies, the voluntary associations. On Second Reading, the Minister said that these would find things were all right. That certainly does not apply to one in Buckinghamshire, where, because they had had a local govenment loan at a low rate of interest and are also having to sell, the position was such that the secretary wrote saying at the end of the day, "It makes me wonder why after 40 years we bother at all".
We are facing a declining stock in the rented sector which is going to be very difficult or impossible to replenish. On the other side, other factors are involved. There are the trustees themselves. There is also the whole issue of voluntary work and voluntary service in this country. We have always believed and practised that, whatever the Government or the state takes over, there must be, and should always be, ample opportunity for voluntary work and service. This is a devastating attack upon that principle. It means that people who have given not only money but their service will be unable to do so in the future. They will lose heart. They will despair. This is something which has even wider implications. It really makes one wonder why the Government—and here I echo what was said by the noble Earl, Lord Selkirk—for something which in governmental terms is really small fry, want to upset so many people over such a large area when all they need to say, as one can so easily say in a democracy, is that they are convinced by the arguments which have been put up not only in this

827
House but in the representations which have been made to them, and the other arguments which will be put this afternoon, and will withdraw what is, after all, only one clause of this Bill. What we would all hope—though I have not much hope at present, otherwise the Government themselves would have put down an amendment—is for the Minister to say at some point during the debate that the Government have had a change of heart and are not going forward on this matter. This would please all of us from every side of the House; but I think that it is too much to expect.
If the Government do not do that, neither I nor my noble friends feel that this is really the type of issue upon which one can add small improvements trying to improve or ameliorate the proposal in some small way or other. It really must be got rid of. We hope that, at the end of the day, noble Lords who are perhaps seeing several sides of the question—and it may be a difficult decision to make—will accept that this clause ought not to be in the Bill and that the only way to deal with it is to throw it out altogether.
Viscount Hanworth: I spoke at length on Second Reading and covered most if not all of the points that I should like to make tonight. I believe, and my party believes, that this clause is so wrong that what matters now is to put the question to a Division while so many noble Lords are still present. Therefore, I will say no more.
4.18 p.m.
Lord Campbell of Alloway: I shall attempt to approach this amendment with a high degree of sensitivity, in deference to the views that have been so ably expressed by my noble friend Lord Selkirk and the noble Baroness, Lady Birk. They contend that the effect of Clause 2 of this Bill as substituted by the amendment today, albeit taking into account the spirit of the amendment of the noble Earl, Lord Swinton, and that of my noble friend Lord Strathcona, will hamper the invaluable work of the voluntary associations, the housing associations and the housing trusts in the provision of cheap rented accommodation. If I truly believed that such were the case I should not oppose this amendment, which is a root and branch excision of Clause 2.
There are two views on this. Surely, one must proceed with a measure of caution. Surely, one must seek to retain some objectivity. As I see it—and I accept that there are two views—the effect of the clause will be to assist these associations and trusts in the provision of cheap rented accommodation. This need, as your Lordships know, often arises as a spin-off from the waiting lists for council accommodation. It is often directly related to the mobility of labour—an important factor in our industrial and economic recovery. This need can only be met by new building, largely financed out of Government funds. The past record of this Administration in that particular regard surely is not too bad.
The importance of these associations and trusts in the administration of these funds cannot be over-emphasised. How it can be said that the Government engender animus or hostility I do not understand. Surely it is plain beyond peradventure that they are
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part and parcel of the requisite administrative process of the Government funds. I do not understand the charge that has been made.
Of course there have been errors in past letting policy. So be it. No system is perfect. My noble friend Lord Bellwin has already today adverted to this problem and to the question of the amnesty under Clause 2(2), whether the breach of trust be original or continuous. In the light of contemporary housing conditions, letting to persons who cannot secure appropriate council accommodation or afford to buy their own homes is within the test of necessitous circumstance under the objects rule of any charitable housing association. Here it makes my personal approach so much easier if I take into account the spirit put forward by my noble friend Lord Strathcona in the "special needs" exclusion amendment, Amendment No. 6.
In this context is it not relevant to observe that the right to buy only arises in the case of housing projects built since 1974 when both the land and building have been financed by the Government out of Government funds, and that the right to buy may not be exercised as against privately funded charitable trusts which use their own funds for charitable purposes, often making grants in aid to a housing association or a housing trust? These privately funded charities are, as your Lordships know, outside the ambit of Clause 2.
Having regard to the nature of any grant under Section 29 of the Act of 1974, to which my noble friend Lord Selkirk referred, the amount of settled trust moneys, or the amount of housing trust moneys, involved in any particular housing project is unlikely to be substantial. The amount involved will always be small in relation to the percentage of total value. Furthermore, the distinction between these privately settled funds and the funds provided from public sources must be made. Indeed—if I may say so with respect—Lady Birk's beautiful ring was, one assumes, not publicly funded.
Privately settled funds for the provision of housing are not subject to the right to buy. In the case of funds provided from public sources, the Government intend, where necessary, to abate recovery of the housing association grant after right to buy sales by charities, and to ensure that the charity does not make a loss, and to ensure that the charity recovers from the sale the modern value of the investment of charitable funds in the dwelling. In every case the discount will be funded either from the housing association grant or from an appreciation in value of an asset created with the grant.
In the circumstances (I hope that your Lordships will forgive me for using my notes, but it is rather a complex situation) that I have sought to explain, it is not understood how any compulsory reduction in charitable assets arises. Although it might well have been preferable—and certainly easier for me personally—if the intentions of my right honourable friend in this regard had been apparent on the face of the Bill, I, for one, wholly accept the sincerity of his statements to this effect at their face value.
It is contended as an objection to Clause 2—and it was so contended on Second Reading—that capital receipts from sales will be insufficient to replace housing stocks of cheap rented accommodation.

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Again, if I truly believed that such were the case, I would not oppose this amendment. Here one has to take full account of the exclusions—the elderly, disabled, alms-houses, the spirit of the amendments proposed by my noble friends Lord Swinfen and indeed Lord Strathcona—and of the fact that long-term needs can only be met by new building with new funds supplied by the Government on a massive scale.
In fact, if the letting is on a secure basis then the question of the replacement of stocks is assisted by the right to buy and the injection of new funds for new building. But if the letting is on a temporary, non-secure basis, then the question of replacement of stocks does not arise. This also includes accommodation which is not self-contained and accommodation let on licence. So, in submission, if one seeks as I have sought—whether I convince any of your Lordships or not is entirely a matter for the Committee—to approach these criticisms in a logical way and to meet them, do they stand up?
We now come to the retrospective issue. As the right to buy relates back to grants since 1974, it is said that this is retrospective legislation. But this is not the sort of retrospective legislation as ordinarily understood, having particular regard to the fact that there is no question whatever of forfeiture of trust moneys. Indeed, these are to be repaid at current values, taking, as I understand it—I shall be corrected if I am wrong—full account of inflation. It is true civil rights under the grant are affected retrospectively, but they are affected retrospectively as regards publicly-funded dwellings, and when the Act of 1980 was passed (again I am open to correction from your Lordships) I do not think a single voice of dissent was heard either in your Lordships' House or in another place on this self-same score. On the assumption that trust monies are repaid at current value, it is not understood why charitable status, as such and no more, should afford any valid ground of objection.
I come to the point raised by the noble Lord, Lord Goodman, at Second Reading. As a matter of law, the obligation upon trustees of all charitable trusts, whether privately or publicly funded, is the same, although its incidence may vary according to the facts of the case. Again, it is simply not understood how Clause 2 can be said to give rise to fundamental breaches of, or changes in, charity law. On Second Reading, the noble Lord, Lord Goodman, deployed no submission or argument to support what he said was a possible view. But the noble Lord said—and in this I wholly join him—that he would be content to accept the assurances of my right honourable friend the Solicitor-General that no breaches of charity law were involved.
The last question which arises—it was a point of objection taken on Second Reading by the right reverend Prelate the Bishop of Winchester—is that some tenants of the Polygon area of the Stonham Housing Association will be able to buy, but others in the Derby Road area will not be able to buy because they cannot afford to buy. If one accepts that disparity of means exists and shall always exist—and in this sense, of course, this is no perfect world—is it not idle to seek to remedy such imperfections by denying all the right to buy? There are no problems arising out of disparity of tenure. The evidence is totally to the
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contrary. A general excision of the right to buy in the limited area of the application of Clause 2 would, for the reasons I have submitted, only operate to the detriment of the disadvantaged.
In conclusion, may I seek to answer the sort of omnibus contention—that is, in the way in which it has been put, not today in your Lordships' Committee but on Second Reading and on so much paper—that Clause 2 helps the fortunate tenant of today at the expense of the homeless and the disadvantaged of tomorrow. In my submission, this is a somewhat emotive peg on which some seek to hang an assortment of misconceived objections which I have sought to deal with today. Surely the answer is—and I seek to answer, I hope objectively, every ground of objection—that unless we give to this relatively few number of fortunate tenants (whose secure accommodation is otherwise kept in cold storage for the immediate future) the right to buy, the provision of new building with new grounds to provide cheap rented accommodation for the homeless and disadvantaged of tomorrow surely will be impeded.
The existing regime is inadequate to cope with the needs of tomorrow. The new regime proposed by Clause 2 is wholly appropriate. I heard my noble friend Lord Bellwin observe that sales would be greatly exceeded by new projects. I am content to accept that assurance. For these reasons, I shall oppose the proposal to leave out Clause 2.
Lord Evans of Claughton: I suspect that neither I nor the charitable bodies, nor the voluntary bodies, nor the housing associations, will have been convinced by the honeyed and brave words of the noble Lord, Lord Campbell of Alloway. I find that the reasons he gives, although he puts them forward courageously, are not convincing, certainly to me. I should like to say that the reason why Lord Goodman is not here today is not because his conviction and his views expressed on Second Reading are any less, but because he is ill in bed.
Neither I nor members of my party are opposed to the right to buy; and I think that throughout the country the right to buy is accepted as being healthy and appropriate. My concern is that, while everyone is advocating the right to buy at every level, practically, except, possibly, some extremely Left-wing Labour-controlled councils in certain parts of the country, very few Members of your Lordships' Committee, anyway, appear to be considering the most serious problem of the very little accommodation that is now available to those people who cannot afford to buy but can afford only to rent. It is that which is really my first concern about this clause.
My second concern is its retrospective nature. My third concern is that individuals and organisations that have given money to help necessitous people in the belief that their charitable intention was going to last indefinitely are now finding—or their successors are finding, or their great-grandchildren are finding—that such desire is being frustrated by retrospective legislation which, surely, is contrary to all the best practice of the British legal system.
The other thing, which, I think, goes to the very root of British life, is the desire of people to give voluntary

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help in a variety of ways. There is no doubt that at very many levels—in the Conservative Party, in very close adherents to that party; in the Labour Party; in the Social Democratic Party; in the Liberal Party, and in people with no party at all—this desire to do charitable, eleemosynary work of this nature is being frustrated by the proposals in this clause. There can be no doubt of this, from the evidence all of us have had—those of us who have had the correspondence and who have heard the concern of people who have given a lifetime of voluntary work to helping necessitous people, people who cannot afford their own accommodation, find rented accommodation. Those who have given a lifetime to that service, quite voluntarily, are now finding that that service is likely to be frustrated. It seems to me that the whole intention and purpose of Clause 2 goes against some of the very best qualities of British life. I strongly oppose the clause.
The Lord Bishop of Chichester: I regret that I was unable to be present at Second Reading, but I have read the account of it very carefully and have read twice over both speeches of the noble Lord the Minister. I have been trying to compare what he said with my own experience in relation to the two housing associations connected with my diocese and also in relation to the Brighton Housing Trust, of which I am a patron.
It seems to me that the fundamental point on which the Minister is standing was when he said—these are his own words—
"Tenants of charitable housing associations deserve equality of treatment with tenants of non-charitable housing associations."
That seems to me utterly to ignore the difference between the two types of association. The non-charitable associations can sell at below market value, and they have no particular obligation to consider their long-term duties towards the people who may need their accommodation in the future. The charitable associations are formed basically to meet the needs of those who are socially disadvantaged, and they have an obligation to preserve their assets for the benefit of those who, in the future, may need them.
The tenants who are in charitable housing association premises have gone into those premises knowing them to be charitably provided for social need, and that is a broad category. Why should it be right, therefore, that they should convert these premises, at no cost to themselves, into a private possession of considerable market value, taking them out of the stock of what is available to meet social needs? That is what will happen if this clause goes through.
It is all very well for the Minister to say that other property will be provided out of the money, but I am afraid that this will not happen in many areas. It seems to me to discount entirely the fact that there are many areas in which it is extremely difficult to find property. If I may give an example, there is the so-called Brunswick Town area of Hove, which, in spite of its grand, Regency appearance, is a very run-down neighbourhood with a lot of poor, elderly people in it, where there is an urgent and great need for rehousing in decent circumstances. Our diocesan housing associ-
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ation has been trying for the last two years, with the help of the Hove Borough Council, to find property which we can convert and improve.
I suspect that this is true of the circumstances of a good many of our large towns. There is a lack of money—it may be that grants have been given by the Government, but they just do not seem to come through, in many cases—and there is a lack of property. This undermines the noble Lord's argument about the many dwellings which he says have been provided as a result of the 1980 Act.
Then the Government speak as if the money that they have put in is the only thing that matters. Over the years, they will get it back, anyway. But what about the work that has been put into the projects by those who are doing so precisely because they are charitable? In all this, there has been and is a partnership. I shall not argue about retrospective legislation. But what I see is one of the partners trying to alter the terms in the middle of the operation. In plain terms, that is what it really comes down to.
Then the Minister says again and again that the evidence of the non-charitable housing associations constitutes hard facts which disprove the fears expressed that this clause will be detrimental to effort. Again, I would say that he makes a false equation. We have already had instances quoted in this debate this afternoon. Only this morning, I received a letter from the director of the Church Army Housing Association, in which he referred to this matter and to his own investigations. He said:
"Only a few days ago, I talked to a member of a small association which has set up one scheme of 14 family units in their local village. He was quite adamant that if the Bill went through his committee would give up, lose interest and resign en masse, simply because, having put years of effort into mounting the scheme, securing finance and seeing the building works through, they would feel absolutely betrayed".
I am sure that there are many others like that.
I am afraid that the objections to Clause 2 are not met by the amendment of the noble Lord, Lord Strathcona, much as I liked it in many ways, nor by the other amendments, because the category of "social need" is broader than the definitions set out in those amendments. For example, why, in the amendment of the noble Lord, Lord Strathcona, should financial need be excluded? Are the poor not socially needy? That is a major element in relation to this whole housing question of providing cheap accommodation which people can afford. Though it may not be the intention of the Government in relation to this clause—and I do not suggest that it is—it is, nevertheless, a fact that it strikes at the poor, the elderly, the disadvantaged and the inadequate, and I believe that that is a consideration of very great weight to be put in the balance against any loyalty that noble Lords may feel to follow the Government.
4.47 p.m.
The Earl of Perth: First, let me say, on behalf of the noble Lord, Lord Goodman, with whom I spent an hour this morning, that he much regrets that he cannot be here this afternoon. I am happy to say that he is not in bed, but, as he put it to me, he is a smouldering volcano, but immobile. Before I go any further, I should like to take up one point which the noble Lord,

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Lord Campbell of Alloway, made. I see that he is not here, which is very unfortunate, because I think that he totally misrepresented—and I am sure that he would not want to misrepresent—the remarks made on Second Reading by the noble Lord, Lord Goodman, about the charitable status of the Bill. I have looked most carefully at his speech and what he said was this:
"However, it would be wrong for me to express a legal opinion in the face of a view apparently expressed by the Law Officers, but I can only say that it is not the view of the Charity Commissioners; and it is certainly not my view". [Official Report, 11/4/83; cols. 40–41.]
So it is very important for the record—and, as I said, I am very sorry that the noble Lord is not here—that that mis-statement, because it is a mis-statement, should not be left unchallenged. I see that the noble Lord, Lord Campbell, is now here, but I do not think I need to repeat what I have said. He can read in Hansard that his statement about the noble Lord, Lord Goodman, was incorrect.
Let me go on to say that, with many others, I ordinarily agree with the right to buy, but also, like the noble Lord, Lord Strathcona, and many of your Lordships, I have been inundated with letters against this Bill as it stands now. Never have I had so many. This is far more representative of opinion, and of informed opinion, than the words put forward by the noble Lord, Lord Campbell. Your Lordships may ask: what are my qualifications for speaking? I have no particular qualifications, unless it be, as the noble Earl, Lord Selkirk, said, that I want to carry on a fight which my close friend, my chief in the Colonial Office for so long, Lord Boyd of Merton, was himself going to fight if he had not been killed. It is very significant that he saw the injustice, the wrongness, of this.
Before I make two points myself, may I quote from a long letter which I have had from the noble Lord, Lord Goodman. I know that it would not be in order, and it would take too long, for me to read the whole of the letter, but there are one or two points which it would be of entertainment or advantage for your Lordships to know. He said in his letter to me:
"The present proposal will create virtual chaos. Estates will be split down the middle when associations are despoiled of particular houses. Many of the estates have been organised on the basis of an estimate of the revenue for repair, maintenance and so forth. This will now be totally disrupted".
The noble Lord, Lord Goodman—I am taking only one or two of the points which he made and probably not the ones which he would have chosen had he been here—makes the point which the right reverend Prelate the Bishop of Chichester has just made:
"Weeks and months were spent on these negotiations, but apparently the only thing that is to count is the money actually spent, and the effort invested goes for nothing in the minds of the pathetic materialists who have thought up this Bill".
On the charity law point the noble Lord, Lord Goodman, (who is not here to answer what, I am afraid, the noble Lord, Lord Campbell of Alloway, misunderstood) said:
"It is suggested that the Bill conforms with charity law. At best this is an arguable point. Under this new procedure houses can be sold and will be sold at up to 60 per cent. discount. The effect of this is that charities will be making a gift of 60 per cent. of the price of a house …".
The noble Lord, Lord Goodman, continued:
"Finally, the Government have introduced a menacing note in the suggestion … that housing associations must look more carefully at
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their tenancies for fear of granting tenancies to people who are not 'necessitous'. They"—
that is, the Government—
"are construing necessitous as people on or below the social security level, but this would mean that the discretion exercised by housing associations—and nearly always a wise discretion—… would all be excluded. The effect will be to arouse the deepest anxiety in a great number of tenants in housing estates about the security of their position".
That, if I may interpose, is I believe a very serious and important point. Lastly, the noble Lord, Lord Goodman, says:
"It will be an undoubted catastrophe for the voluntary housing movement and in the end redound to the discredit of a highly successful Government and deprive the House of Lords of the opportunity of claiming that it has done something of real social benefit if this clause passes in its present form or in any form that continues the mischief".
The noble Lord, Lord Goodman, ends:
"Strength to your elbow".
Let me add one more point of my own.
Lord Campbell of Alloway: None of this appears in the speech which was made by the noble Lord, Lord Goodman, at Second Reading.
The Earl of Perth: I know that. Unfortunately, the noble Lord, Lord Campbell of Alloway, was not here. He misrepresented what was said by the noble Lord, Lord Goodman. I quoted exactly what Lord Goodman said at Second Reading. If he had been here he would have heard it. He can read it tomorrow in Hansard. So far as I am concerned, we must remember, first, that charitable housing associations are frequently very different from ordinary housing associations. They choose very rundown areas of city centres. They believe that they have the know-how and everything else which voluntary effort can provide in order to rebuild city centres. They have frequently succeeded in making city centres attractive places where people want to live. This is to the general benefit of the cities concerned. Local councils—this is no criticism of them—have almost always gone to the outskirts. Therefore, one of the risks is that a large number of people will be in a position to buy their houses at a considerable advantage. Although one may say that they cannot afford it, at Second Reading I said that people will knock on the door and say, "We will help you". I was quoted yesterday in the newspapers as saying that this will be a spivs' charter. Perhaps this is what it could represent.
Secondly, turning to retrospection, the charitable housing associations made a bargain with the Government in 1974. It was written in legal terms. Until now those terms have been and will continue to be scrupulously observed. Nowhere, however, was it said that in 10 years' time a new clause would be introduced insisting that if anybody wanted to buy the houses which were then being provided they should be made available. That is very different from the kind of retrospection which has been talked about. I end by saying that two wrongs do not make a right.
Lord Somers: I should like to oppose this clause with all the strength that I have. I do so because I feel it to be totally unjust. The Government seem to have a habit of taking a principle which they feel is desirable in some cases—and in many cases it is—and then

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assuming that it is desirable in all cases. They have done so with the right to buy, or owner occupation. In many cases this is, no doubt, very desirable but in certain cases it is not desirable. This peculiarity is indulged in not only by this Conservative Government. It is common to all Governments which act according to party policy.
Owner occupation is not all honey and nectar. As one who has owned his own house for most of his life I can say that owner-occupation involves a great deal of anxiety about maintenance and so on. A great deal of expense is involved. This is not always realised by those who are anxious to buy their own homes. But in the case which we are considering it would be absolutely wrong to give to the tenants of charitable organisations the right to buy their own homes. During the Second Reading of the Bill I believe that the right reverend Prelate the Bishop of Southwark—I hope he will forgive me if I misquote him—said that the charities have worked hard and do not want their work to be whittled away. That is very true. This is exactly what would happen. Small charities, similar to one quite near to Epsom where I live which has only 12 flats, will find themselves getting smaller and smaller. In the end it will not be possible for them to continue their work. That is not what they are there for. That is not what we want. Those who recognise the importance of the work that these charities are doing will, I am sure, oppose this clause with all their might.
Lord Sandford: I rise to support the Question, Whether Clause 2 shall stand Part of the Bill? I apologise to your Lordships for not being present when the Bill was discussed at Second Reading. At that time I was somewhat preoccupied by the Water Bill. Your Lordships will know from those proceedings that I am not reluctant to cast my vote against the Government when I think they are wrong. Equally, I am not reluctant to vote for them when I am sure they are right, as I believe they are in this case.
All of your Lordships are used to being lobbied. Those of us who have been here for some years can categorise the kind of lobbying which we receive. Sometimes it takes the form of a specific letter from a particular body to a selection of noble Lords who are interested in a particular field, making precise proposals for changes to a piece of legislation at Committee stage. I suppose the National Farmers' Union are one of the best at that. During the passage of the Wildlife and Countryside Bill we received messages from all sorts of bodies, like the Royal Society for the Protection of Birds, about the nocturnal habits of the bartailed godwit—all very precise and precisely directed.
There are other forms of lobbying, which take the nature of an orchestrated campaign of some size directed not at specific points but at general issues which are firmly and strongly held. I do not believe there can be any doubt in your Lordships' mind that this is the kind of lobbying to which we have been subjected. The considerable number of letters I have received from general charities such as the Youth Hostels Association and the National Council for Women, which are not specifically concerned with housing, have been brim-full with misconceptions,
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false fears and misunderstandings through a very understandable lack of knowledge of the detailed proposals which there are in this Bill and in Clause 2 in particular.
Many of your Lordships will know that I am president of the Association of District Councils. There are 333 of them—all housing authorities. They are all concerned with housing; housing is one of their main commitments. There is not a single council or district council that is not involved in housing to some degree. The district councils went right through this whole business two years ago when their tenants were given the right to buy. They raised then all sorts of fears of the kind which are being aired now. Many of those fears have proved groundless, but I will return to that point in a moment.
The point I want to make is that throughout this whole lobbying campaign, hardly any of the very large number not only of district councils which are housing authorities but also of other bodies concerned with housing from which I receive a continual post-bag asking me to deal with this, that or the other aspect of legislation—or who write to my noble friend the Minister about housing matters—have written objecting to this clause. That arises from their understanding of what the Government are doing. It also arises from two or three years' experience of operating the right to buy. I must say to my noble friend Lord Strathcona and Mount Royal that fears about it being difficult to administer a block of flats or an estate when some people have exercised the right to buy and some have not are completely groundless. The more people who exercise the right to buy, who stand on their own feet and who are responsible for their own properties, the easier it is to manage the estate for the rest of the tenants.
Those letters in my post-bag which have objected to Clause 2 have done so on the basis of misconceptions. I am not alleging that the campaign has deliberately gone out to deceive; far from it, for I have no evidence of that at all. The fact of the matter is that because this is a complicated issue, and because it is a large campaign orchestrated through a whole range of charities—many of which have nothing to do with housing—an equally huge range of misconceptions has built up. I implore your Lordships to give weight to that.
It is not for me to rehearse the exclusions and the case which my noble friend the Minister has made more than once, to do with precedents in retrospection. The point I now wish to make is in reply to the noble Baroness, Lady Birk, and her privately-funded ring. I cannot remember whether the noble Baroness was a Member of this House 16 years ago, but it was then that the party opposite were passing leasehold reform legislation. In that role, they were in their more customary position of being in defence of the tenants against the landlords. Their role is reversed on this occasion, but on that previous occasion the right to buy for tenants holding leaseholds from their landlords was being introduced for the first time.
On that occasion, there were no exclusions for charities or for the charitable status of the landlord, no exclusions for national parks, and no exclusions for the elderly. It diminishes somewhat the case which the noble Baroness made very cogently and persuasively

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when one recalls that it was the party opposite who introduced the right to buy. We are united, at any rate, in seeking a property-owning democracy, but we are not united in the way of achieving it. When the party opposite introduced the right to buy, there was no concern shown for charitable status, for buildings specifically designed for the elderly, for special rural areas, and so on.
All those exclusions are in this clause. Many of them were in the 1980 clause which introduced the right to buy to council tenants. They are all there now, and there are further exclusions to make quite sure that no tenant has the right to buy if the exercise of that right will take land that belongs to charity or money that has been raised for or belongs to charity. It will apply only in the case of publicly-funded properties on publicly-funded land. The case for that is absolutely 100 per cent.
5.6 p.m.
Lord Jacques: I should like to accept the challenge extended by the noble Lord, Lord Campbell of Alloway, and state a logical case against this clause. I will also, in part, reply to the noble Lord, Lord Sandford.
Since 1974, charitable housing associations have come to be in possession of assets partly with the aid of Government loans and grants. The Government are now saying, through this Bill, that there is a capital profit involved in those assets because of the rising costs of the past nine years, and that the tenant ought to be given the right to buy the property and take the capital profit. In effect, the Bill recognises that there is a capital profit and wishes to pass this on to the tenant. Obviously, this profit will go only to the better-off tenants, because they are the only tenants who can afford to buy.
The housing associations, on the other hand, say, "This is inconsistent with our objectives. Our objectives are to provide low rent property for the least advantaged of the community. If we have to sell existing properties at these huge discounts and then replace them with new properties at present-day costs, then our costs will rise and our rents will rise. Consequently, this clause of the Bill is entirely inconsistent with our objectives."
Furthermore, these associations are quite different from local authorities, both in law and in practice. A local authority is part of the complex of government. It has obligations to the community as a whole. It is inhibited by the housing waiting list. The charitable housing association is in a different situation altogether. It is a private body, set up specifically for the purpose of giving housing aid to the least advantaged of the community. It does not have the pressures which a local authority has. It is not part of the complex of government but is a private body with which the Government have made a contract, dating back to 1974.
The Government, in effect, are now saying, "We want to put a new term into that contract". None of us can do that. None of us can go back and put new terms into old contracts. This Government, or any other Government, can only do that by using the power of Parliament in a statute. That is what is happening
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here. I submit to the Committee that this instance is an abuse of parliamentary power. I have always understood that one of the functions of this House was to act as a long stop against abuses. I would have thought that this was one abuse which this House ought to stop. As I said at Second Reading, if this clause goes through, as a Member of this House I shall be thoroughly disillusioned.
Baroness Lane-Fox: I wish to oppose this amendment. Does the Committee really want charitable housing associations not to have the benefit already enjoyed by non-charitable associations? After all, they would then become the depressed relative. The non-charitable associations have sold 2,500 houses since 1980, and in the lifetime of this Government they have provided 120,000 more dwellings in flats and houses. Some of that success must appeal to the charitable housing associations. After all, the appeals come in from the charitable housing associations for funds to develop; they are received by many of us.
Surely if there were the selling process somehow, this would plug these difficulties, and there would also be the huge Government grants that are ready and waiting to be used. This money must be used and used quickly to increase the amount of rented housing that is wanted by so many of us, for the homeless and for those in real need. But unless the charitable housing associations are encouraged, as in the Bill, I do not see how that end is going to be encouraged in the present context of grants, et cetera.
Of course, there is always the wish to be paternalistic to the people who are more disadvantaged, but that is something, I believe, that most of us are growing away from. When people suggest that this Bill would mean that there would be a reduction in voluntary work, I cannot agree with that at all; I think the need for voluntary work is greater than ever, but is in a slightly different scene from where it has been in the past. I believe that to pass this amendment would mean we were going to remain stuck in the mud on this; instead of helping people to be independent, it does not encourage them to spread their wings and become self-supporting.
It is really an absurd anomaly that houses similarly funded, funded in exactly the same way through Government grants, shall on the one hand be available for buying, and on the other not. After all, those grants are paid for the good of the people living in the houses, not necessarily for the charitable associations. If this is carried, it is discrimination against those living in charitable housing, and for these reasons I oppose the amendment.
Lady Saltoun: I have no qualifications for speaking about this, or anything else for that matter, but I do not like to see dangerous precedents being created. To legislate retrospectively is to create a dangerous precedent, besides being dishonest. For that reason, as well as for many others which have been mentioned, I am entirely opposed to this clause. It is like rotten meat; a lot of spicy verbal sauce has been poured over it to hide the nasty smell, but it still stinks, because retrospective legislation stinks. For that reason, if for no other—and many other good reasons have been

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given this afternoon for opposing this clause—if the noble Earl, Lord Selkirk, feels obliged to divide the Committee I shall gladly support him.
Viscount Massereene and Ferrard: On the point of retrospective legislation, in fact the Socialist Government brought in retrospective legislation—about 15 or 16 years ago, I think—in the case of Rooke v.Barnard, a trade union case, and there have been other instances of retrospective legislation.
Lord Elwyn-Jones: I rise to support the opposition to this clause. It has given rise to great issues of social importance, and, as the noble Earl, Lord Selkirk, said, to major issues of principle. The public concern that has resulted and that has manifested itself in communications to us was, I thought, somewhat scornfully taken down by the noble Lord, Lord Sandford, in describing it as orchestrated. What is wrong, in a democracy, in a campaign of indignation being orchestrated by a mass of communication from different sources, I know not. I do not know who is supposed to have led this orchestra. What is surprising, from what we have heard, is the vast number of sources of different social interest, different commitment, religious, political and purely social, that has come to us in the course of the last few weeks.
The noble Earl, Lord Selkirk, stressed the social significance of what we are about; the need of people who require rented accommodation continues to grow and it is becoming increasingly difficult to meet. That need is, I submit, far greater than that of people who have resources to buy their own homes. As the right reverend Prelate the Bishop of Chelmsford said, those who will suffer from this legislation will be the most needy if housing associations presently looking after them are deprived of resources that they need.
The noble Lord, Lord Sandford, referred to the Leasehold Reform Act, as, presumably, a debating point, and I had better dispose of it, as I was partly responsible for it. It was, incidentally, strongly opposed by the Conservative Party. That, I submit, is not a comparable precedent to what, we are dealing with in this Bill. That had impact only on the property of charities held for investment purposes. This Bill affects property held by charities specifically to fulfil their primary objective of meeting housing need.
Secondly, the leasehold provisions in that Act affected all landlords equally, including private landlords. This clause, in contrast, relates exclusively to housing associations and charities, giving their tenants special privileges which tenants of private landlords, who may pay the same rents, will not obtain. Therefore, there is no comparison, in my submission, between the contexts and the impact of the two pieces of legislation.
During the Second Reading debate the noble Lord, Lord Bellwin, made what I thought was, in the context, a remarkable statement. His opinions we normally, of course, respect, but this one did surprise me. He said:
"in framing Clause 2 we have attached fundamental importance to the safeguarding of charitable funds. That is a cornerstone of our policy."—[Official Report, 1/4/83; col. 12.]
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So far from safeguarding the property of the charitable funds of the housing associations created and provided to assist in providing housing for those in need, it is those associations who will, if this takes effect, suffer actual loss as a result of the right to buy which is provided by the clause. It will compel—I do not see how we can escape that language—the trustees of those associations to sell many of their trust assets below market value; because of the discount which tenants exercising the right to buy pursuant to Clause 2 will be able to obtain under Section 7 of the Housing Act 1980, the charity will get only a part of the full value of the asset.
The proposition that this departure from centuries-old rules can be justified because we are dealing with houses for which associations have received Government funds to build or acquire is, I submit, unsustainable. Surely, when those Government funds have been received by the housing associations and the houses have been built with those resources, those houses become part of the property of the charity. The houses acquired with those funds are charitable assets, just as if the houses had been acquired with money from any other source. The trustees, the housing associations, have a duty, legal and moral, I submit, to preserve the assets for the benefit of beneficiaries present and future. A trust is a trust is a trust.
Is it not well settled that if a charity must sell assets entrusted to it, it must do so on the best possible terms and not at a discount? That is quite fundamental to the law of trusts and charities. Without the protection that Clause 2 is intended to provide, the trustees, by selling below the market value the class of houses that we are discussing, would, I submit, be guilty of a breach of trust.
As was said on Second Reading by more than one noble Lord, this clause is an ominous development for all charitable foundations —and we have heard of many in the course of this debate—which have been, or may be, in receipt of grants from central or local government. It raises serious issues for all of us who are concerned with these charitable foundations.
This is not a debate on party lines and I shall conclude in the way in which the noble Lord, Lord Goodman, concluded lest there should be doubt as to what his views were. I confess that discussing this matter without Lord Goodman is like discussing Hamlet without the Prince of Denmark. The noble Lord said:
"I shall conclude simply by saying that if for once this House has a useful function to exercise—and in the past it has many times exercised a useful function—your Lordships will have no hesitation at all in seeing the end of this appalling Clause 2."—[Official Report, 11/4/83; col. 41.]
With that I agree.
Baroness Faithfull: This debate is drawing to a close and I shall be brief. During the whole of the debate we have heard of the enormous number of letters from north, south, east and west that we have all received. We have the greatest admiration for the charitable housing trusts and for the work which they do. The one set of people that have not made representations to us are the tenants themselves. It is the tenants' point of view that I wish to put.

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The right reverend Prelate the Bishop of Chichester mentioned the point of view of tenants but I put a different point of view. I have dealt with very many of the vulnerable in housing charitable trust houses and accommodation. They are not all vulnerable, but many of them are. As the years go by, some of them manage to get themselves into a better financial position and they wish to own their own property. They are in a dilemma because, although they can put their names down on the local authority housing list, they get very few points because they are already in accommodation. If they are not to be able to buy their accommodation in the charitable housing trust property they are in a cleft stick and will not be able to make any progress in life.
I give two examples. A charitable housing trust might give accommodation to an unmarried mother and her child. She then, very happily, manages to marry and the charitable housing trust then moves her into two rooms so that she can live happily with her husband. Her husband then does well and they wish to buy. Noble Lords might then say that she can go into the private sector or, alternatively, put her name down on the housing list. However, she does not receive any points of substance if she is already in accommodation.
The second type of case concerns the elderly. An old lady would go into a charitable housing trust near her relatives. In this day and age with unemployment as it is people lose their jobs and move miles away. The old lady wishes to move to accommodation near her relatives where there may not be a charitable housing trust, but because she has nothing to sell she cannot make the move.
There is a point of view that the vulnerable may not always remain vulnerable and they should be given the opportunity to buy their properties if they so wish. Is it so extraordinary to have a mixture in the community? I should have thought that with care and understanding this would be profitable in terms of both relationships and responsibility in our community. I therefore support the clause.
Lord McIntosh of Haringey: I shall be extremely brief because I want to make only one point which I believe has not yet been made in this debate. The clause affects not only individual properties but also the viability of some whole housing associations. I quote from a letter to me from the Haringey Educational Housing Association. This was established, says my correspondent,
"in 1973 as a means of providing housing for teachers coming into the borough at a time when we had a turnover of more than 30 per cent. For the past three years, however, the Association has been denied finance for further development both by Haringey and by the Housing Corporation: we are simply managing the hundred units we have and hoping for better times. But if the Housing and Building Regulations Bill at present with the House of Lords becomes law without amendment we … shall be forced to shut up shop. The Bill in its present form extends the 'right to buy' to tenants of charitable housing associations. An Association such as ours simply could not sell any of our flats at discount and still have sufficient income to service the mortgages and maintain the remaining properties in good condition".
The noble Lord, Lord Somers, referred to the clause as whittling away the private rented sector, the housing association sector. I suggest that for some housing
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associations this is not whittling away; it is chopping away at the base of the tree.
The Earl of Onslow: I have one small point to make in reply to what my noble friend Lady Faithfull said. If a charitable housing association gives accommodation to an unmarried mother, who then proceeds to marry and her husband does well, why on earth should the charitable association subsidise her husband? I have a second point to make which is in reply to the noble Lord, Lord Sandford, who said that this is an orchestrated campaign. I received only one letter on this subject, which was from the chairman of one of the big clearing banks whose family have run a small housing association in the village where they live for old people in that village. I do not see that particular gentleman being orchestrated by anybody, least of all by a collection of Left-wing trendy do-gooders.
Baroness Denington: I speak from this Bench because I normally sit on this side of the House, but I am really speaking because I am presently a member of three housing associations. Two of them are what I call ordinary housing associations, which house people in the same way as local authorities. However, I have spent many years as a member of two charitable housing associations. One is the Sutton Housing Trust, which I believe is the largest charitable housing association of them all. The other is the St. Pancras Charitable Housing Association, which was founded in 1924 and builds and has its property holdings east of Euston Station, behind St. Pancras Station and just into Finsbury. It is, therefore, a city centre housing association.
I speak because I think it may be helpful to your Lordships. As I have experience of both sorts of housing associations (the charitable and the non-charitable), I am able to say that, despite what the noble Lord, Lord Bellwin, and his friends say, there is a difference between the two types. They are different. Therefore, there is a reason why what is good for one section and has been given to one section is not good for and should not be given to the other, I hope sincerely that we shall not leave this Chamber with Clause 2 still in existence.
It is quite understandable that the 1974 Act gave a great impetus to the charities to build housing, It was a wonderful opportunity. Of course, they never dreamt for a single second that some Government, least of all a Tory Government, would have retrospection and say, "Sell". The fact is that this great impetus was given. The result is that there was such a lot of building that the number of charitable houses built since 1974 is vastly greater than their holdings prior to 1974. So your Lordships will see that we are talking about a very substantial portion of the charitable housing movement's properties.
The Government keep on representing that the number of sales will be small—minimal; not to worry about it—and that the number of properties that are being built in addition is much larger, and therefore, what should anybody worry about? That may be true and the number of tenants who are able to buy may be limited. It will not be vast at this moment. But the housing associations have to take a long view. They are not interested in today and just what happens now.

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Over time, and probably as people become better off, the sales will increase very greatly.
Now we come to the point that has been raised by several Members this afternoon in your Lordships' Committee: the importance of a great pool—we do not have enough—of rented housing. What we are going to see is a diminution over time, gaining impetus as it goes along, of the rented housing stock of the charitable housing associations. This is most important. We have been given figures. What a fantastic figure for the rented housing stock the noble Earl, Lord Selkirk, gave us! The rented housing stock has fallen by 1 million, I think he said, since the 1974 Act was implemented. The situation is exceedingly serious. I say that neither the charitable housing associations nor the nation as a nation can stand the loss of more rented housing association property.
I fully supported the efforts of the noble Lord, Lord Stanley of Alderley, on staircasing—shared ownership. If people want to buy, I would recommend that. Here is an excellent way modestly to start to buy and achieve ownership. Let that be aided on all sides. A number of charitable housing associations have already set up non-charitable daughter associations in order to build just in this field. What an excellent thing. Why should they not do it? The ordinary housing associations (the ones I am concerned with) are wholeheartedly involved in building this staircasing. This seems to me a way forward to help ownership, which neither I, nor I think anybody else on this side of the Chamber or anywhere else in the Chamber, can possibly oppose. We do not.
I make the point that the two types of housing association are different. I have been involved for well over 30 years with local authority housing. I have been involved, as I told your Lordships, with ordinary housing associations. They house from the waiting list the families who want accommodation, who want to move from here to there, who want to exchange dwellings, and so on. They are all involved in the same field; not so the charitable housing associations. They keep strictly to the charitable rules. Their concern is to house the necessitous: the poor, the single-parent family, the elderly and the handicapped. They do what they are supposed to do, and that is the criterion for most housing associations. They really are different. They deal with a different strata of society, if I can put it that way, and they work in accordance with charity law.
I admit that some charitable associations are a little different. They house people where there is social need, like the housing in the village that we have all heard about, where six lettings were provided for young married people. If those houses are sold, that village again will only have accommodation that is snapped up by weekenders and there will be nothing for the young marrieds of the place. We had a deputation here from South Wales. To my astonishment, they told me that they had to build ordinary housing for social reasons, because in those valleys there is 85 per cent. owner-occupation, and therefore there is hardly any rented accommodation. So they were doing that social job as a charitable housing association. It may be slightly outside the rules, but it is a very necessary job. Then there is the
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St. Pancras Housing Association, and others, which have charitable houses to rent in inner city areas where such accommodation is desperately short. If that property is sold, the property spivs will get in by repurchase and it will go to people who have nothing to do with the community and be used as a piéd-à-terre. The whole thing will disintegrate. Goodness knows where the lower paid workers, the night-workers of London, and so on will ever find somewhere to live.
The noble Lord, Lord Bellwin, said that the people who were housed in this accommodation deserved the right to buy. That was his expression. I think that those who are in the charitable houses are the lucky ones. They are the ones who have been housed from among all the homeless, the people on the waiting list, and so on. I cannot see that those people who are lucky necessarily deserve this. I wonder whether the Government realise that there is bitter resentment against this clause in this Bill and that they will offend far more people than they please. It is not moral to raid the assets of charities.
I end by saying that this House has a reputation for being able to take a view that transcends party politics or party loyalties. Let us see this, as it surely is, as a moral issue, and let us all go through the Lobby in the next few minutes to see that Clause 2 does not exist any more.
5.40 p.m.
Lord Bellwin: Let me say at once that I am under no illusions as to the degree of your Lordships' concern to ensure that charitable housing associations can continue to carry out their long-standing and immensely valuable role. Let me therefore state right at the outset that the Government attach the greatest importance to the contribution which charitable housing associations have made, and will continue to make, in the field of housing for rent.
The boost which we have given this year and last to housing association investment demonstrates beyond any doubt our commitment to the housing association movement. I must restate for the record that the Housing Corporation's gross provision for 1983–84 is £690 million. I think that that figure speaks for itself and Clause 2 should be seen in this context.
Clause 2 of the Bill has given rise not only to a very large amount of correspondence and some vigorous lobbying—there is nothing wrong with that, if one so wishes—but also to a great deal of emotive argument. It is some of those emotive issues on which I shall concentrate, for they are the issues of fairness and equity. However, before I come to those points, let me remind your Lordships' Committee of the justification for these proposals, and of the main features of the clause.
The Government believe that it is manifestly unfair that those secure tenants of charitable housing associations and housing trusts living in dwellings which have been provided wholly or overwhelmingly with public funds, in the form of housing association grant, should continue to be denied the right to buy. This second-class treatment for these charitable housing association tenants does not rest upon their circumstances; nor is it based on the way that their

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dwellings were funded, nor on the status of the tenants under the Housing Acts; nor does it bear any direct relationship to the rents payable by the tenants. It rests solely and simply upon the status of the landlord.
In many cases it is a matter of pure chance whether, on being offered a public sector tenancy appropriate to his or her needs, a person ends up in a dwelling owned by a local authority, a non-charitable housing association, or a charitable housing association. In each case he or she will become a secure tenant; but only as a charitable housing association tenant is he or she denied the home.
Were it the case that these houses of the charitable associations had been funded in a way quite different from the others, then a rationale for distinctly different treatment of tenants could be advanced. But this is simply not so. Since 1974 charitable housing associations have funded the provision of the vast majority of their houses, in exactly the same way as their non-charitable brethren, by claiming housing association grant from the Government. This grant is payable at a very high percentage of the cost of the dwelling-85 per cent. or more—and the balance of the cost is also met by a public sector long-term loan from the Housing Corporation or a local authority, serviced by the rental income from letting. These are to all intents and purposes public sector houses, built with public sector money, just like those of local authorities, new towns, and non-charitable housing associations, whose tenants all enjoy the right to buy.
It is beyond dispute that the present situation is anomalous and results in inequitable treatment of one group of secure tenants as compared with all others in virtually identical circumstances. Your Lordships' House is rightly proud of its reputation for guarding the rights of the individual, and it seems to me inescapable that we must accept the case for change to remove this anomaly.
What of the position of the landlords? Here we need to ask ourselves some questions. First, are the arrangements so devised that in responding to the legitimate aspirations of individual tenants, they nevertheless have proper regard for the interests of charitable housing associations as landlords? I believe that they do. Secondly, is the dividing line drawn correctly between what the Government may properly and legitimately propose for the use and disposal of publicly created assets, and the rights of the private sector to have its investments protected? Again, I submit that the answer is, Yes.
As our deliberations have clearly brought out, almost three-quarters of the existing stock of charitable housing associations will be exempt from the provisions of Clause 2(1). Only dwellings provided with housing association grant will attract the right to buy. The list of exemptions is worth repeating—it needs, repeating. This clause, this Bill, does not—I repeat, does not—apply to all dwellings provided before 1974, under the subsidy systems which preceded the introduction of HAG. It does not apply to all dwellings built on land bought with charitable money, or on land donated to the charity. It does not apply to all dwellings bought with charitable money or donated to the charity. It does not apply to all dwellings falling within the exemptions for special
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accommodation for the elderly and disabled in Schedule 1 to the 1980 Act. It does not apply to all almshouses.
Not only would a high proportion of charitable dwellings be excluded from Clause 2; but all the evidence from the operation of the existing right to buy provisions of the 1980 Act suggests that only a limited number of tenants would actually exercise that right. What that means in practice, therefore, is that the charities will continue to have at their disposal the vast majority of their existing stock, to manage in the way that they have always managed it. To the extent that they sell under right to buy, any reductions in stock available for renting will be replaced many times over by new or rehabilitated dwellings, which they will be able to provide, with full access to housing association grant. May I quote again the telling figures which I gave your Lordships at Second Reading. Under the present Government the rented stock of registered housing associations in England and Wales has increased by over 120,000 dwellings, and for each one dwelling sold under the right to buy, almost 50 dwellings have been added.
To say that the proposals in Clause 2 will reduce the availability of accommodation to rent is to stand logic on its head. The argument is discredited by the facts, by the sheer numbers that have actually been involved; it is discredited not by theology, not by ideas, but by the facts of what really happens.
The right to buy has not undermined the effectiveness of non-charitable housing associations since 1980. The fact is that they have gone from strength to strength. Nor would it undermine the work of charitable housing associations. Their future is bright, and Clause 2 casts no shadow over it.
The effect of the exclusions from Clause 2(1), which I have listed, is that the right to buy will apply only to dwellings which have been provided at the taxpayer's expense. Any material input of charitable funds produces exemption. In short, assets provided with charitable funds, even if they have had substantial sums of public money spent on them by way of repair or improvement, are excluded by this clause. We have gone further. We have undertaken to return to charities the modern value of any marginal investment that they may have made, by way of a small topping-up contribution to HAG-funded dwellings. My honourable friend the Minister for Housing and Construction gave a categoric undertaking to that effect in another place on 14th December. This surely represents a fair and reasonable approach, which takes full account of the rights of the charitable associations.
I should now like to turn to some of the main criticisms which have been levelled against Clause 2. First, there is the question of the allegedly "retrospective" nature of the clause. In fact I do not believe that Clause 2(1) is retrospective, in the proper sense of that word, and in the sense that is normally meant, when Governments are accused of legislating retrospectively. Had the debate not gone on for so long, I should certainly have wanted to quote the many examples which there are of legislation brought about by all parties, and to do not only with housing, but with many other matters as well. I should certainly have wanted to talk about the Leasehold Reform Act and all that flows from that. But for the moment let me

847
acknowledge that the charge of retrospection has come not only from noble Lords opposite, but also from some of my noble friends. I gently remind them that the 1980 Housing Act granted the right to buy to tenants of non-charitable housing associations which have received public subsidies. So they must tell me how this clause is different. The dwellings affected by Clause 2 were also provided with public money. If the extension of the right to buy to tenants of existing grant aided dwellings was all right in 1980, why is it so wrong in 1983? If any noble Lord on this side can provide a convincing answer to that question, I would be pleased to hear it.
Finally on this issue, I should like to remind the House of the words of the right reverend Prelate the Bishop of Southwark who said on Second Reading that retrospective legislation,
"cannot be defended unless it is to remedy an injustice". [Official Report, 11/4/83; col. 33.]
Beyond all doubt, this Bill does, indeed, remedy an injustice.
Noble Lords: No!
Lord Bellwin: This is precisely what it is about. I listened carefully to all that was said by noble Lords opposite. I am sure that they will afford me the same courtesy. The fact is that this Bill is precisely about that. In that single phrase, the right reverend Prelate makes our whole case for us.
The second argument which has been made and on which I should like to comment is the claim that if charitable housing associations had known, when they took housing association grant, that the dwellings they were providing would be subject to right to buy, they would not have accepted the grant. That was stated on Second Reading. Are we seriously to believe that charitable housing associations which, in the last decade, using public money, have more than doubled their rented housing stock to its present total of more than 300,000 dwellings and, as a result, have given decent homes to many thousands of people in need, would have turned down these opportunities because of the prospect of the sale of a few thousand dwellings? I do not believe that. It does them less than justice to say that.
What about the impact of Clause 2 on those voluntary workers, committee members and trustees, on whom charitable housing associations depend so heavily? The noble Baroness, Lady Birk, and the noble Lord, Lord Evans of Claughton, were very strong on this point, as were other noble Lords. The noble Baroness said that it would have a devastating effect on voluntary service. No one values more than we do the tremendous contribution that these people make to the housing association movement. To them must go much of the credit for the rapid and successful expansion of housing associations since 1974. I do not share the gloomy view of noble Lords that, if Clause 2 is enacted, these people will become disaffected. Why should they? The opportunities for future expansion are there to be seized. Clause 2 will not change that, any more than it would vitiate the achievements of the last decade. Most telling of all, surely, is the point that non-charitable housing associations have realised that
848
the right to buy does not inhibit the contribution that they can make to the provision of rented housing for those in need. They are as dynamic as ever, and here we are coming up to three years later. Are we therefore to believe that those who work for charitable associations are any less committed? I do not believe it. Not at all.
There was some suggestion on Second Reading that Clause 2 was defective in that it did not deal fully with the complex provisions of charity law which govern sales of assets by charities, and that charity trustees might as a consequence be placed in an impossible position. The noble Lord, Lord Goodman, seemed to suggest that the attitude of the Charity Commissioners to the proposals bore out this criticism. As I have explained to the noble Lord, Lord Goodman, in a letter, a copy of which has been placed in the Library, before the publication of the Bill, my department consulted the Charity Commission about the provisions of Clause 2. The commission said that it was opposed to the policy of extending the right to buy to certain of the secure tenants of charitable housing associations and trusts. However, the commission has never claimed that the Bill is legally defective. I suspect that this is an area about which the Committee would want to talk at much greater length. We shall possibly do so on a later occasion. I am willing even today to expand on the matter if pressed, but it is quite complex.
A further issue raised especially by my noble friend Lord Selkirk on Second Reading is whether the Government, having made grants to charities in order to enable them to provide housing, have the right to compel the charities to sell their assets and to repay the grant. It is claimed that this cuts across the fiduciary duty of trustees to manage their assets in the interests of the charity and that it constitutes a fundamental change in the law relating to charities. The Solicitor-General has dealt with this issue at some length in a further letter dated 25th April to the chairman of the National Federation of Housing Associations, a copy of which has been placed in the Library. For today, I will leave it at that, unless pressed. I think that is probably what your Lordships would wish.
Regrettably, I think that our debate on Clause 2 at Second Reading and here in Committee has been in one important respect very one-sided. Many speakers have approached the issue as if the only interests that need to be considered are those of the associations. My noble friend Lady Faithfull made the point very validly. I do not suggest that the landlords' interests are not deserving of the fullest consideration. I hope that I have shown that our proposals pay proper regard to the interests of the charities. This issue is about ensuring that we must not overlook the interests of the tenants. It is not good enough, it will not do, to brush cavalierly aside the legitimate and understandable aspirations of those people who long to own a home of their own but who have little chance of doing so unless the clause is enacted.
I know that many noble Lords have had letters from charities making their case. I have had the same ones. Seemingly, I, too, am on the mailing list. But my department has also had numerous letters and inquiries from tenants who hope and aspire to buy their homes under Clause 2. It is these people, the

849
tenants, that we must not shrug off. These are the people for whom the Government are arguing. They are the ones who are affected by our decision today. I ask your Lordships to have ears not only for the views of the associations which can express their case so articulately and which have a voice in the Chamber through many noble Lords who have links with them.
It has been stated by noble Lords opposite that this House has a long and honourable tradition of protecting the rights of the individual and of upholding those rights against injustice, inequality and against all interests, whether of private or public bodies. Now is the time to show that we care about the individual. It does not matter one whit that a comparatively small proportion of charitable tenants can be expected to take advantage of the right to buy under Clause 2. The quintessential point is that these tenants, living in publicly-funded dwellings, should have the right to buy.
The noble Baroness, Lady Birk, asked why the Government have pressed ahead with these proposals despite the clamour of opposition from the charities' lobby and the criticisms that have been voiced in your Lordships' House. Why have we persisted despite the possibility that Clause 2 may prove not to command sufficient support in this Chamber? There has been no shortage of plain speaking today. Let me join in and say that the answer is no more and no less: it is purely and only our deep concern, our care about the rights of individuals. The whole situation is ironical in the extreme. Leaving aside the Leasehold Reform Act, the fact is that noble Lords opposite will surely concede—it is not to their discredit, it is their belief—that they have always fought tooth and nail, as they did during the passage of the 1980 Act, against the right to buy. Now, seemingly, on this Bill, they intend to do the same. That is fair enough. It is a matter of political theology to which I have no objection. I do not agree, but I have no objection. There should be no doubt that this is what weighs heavily with them.
As for noble friends on this side and, above all, noble Lords on the Cross-Benches, I hope that they will take into account what has been said about the rights of individuals. I am afraid that some appear to have accepted in full only the views of the charities' lobby. I ask those who contemplate voting against the Government on this matter whether they fully accept that in so doing they are representing interests that seek to deny the right to buy to people who are arguably among the most disadvantaged in our society and, I say again, people who may never again have the chance to buy their own home.
Noble Lords are aware that I always try to pick up points made in debates. I fear that today this would take too long. I shall therefore not do so. There are however two comments that I should like to make about what was stated by two of your Lordships, because they are wrong. The noble Lord, Lord Jacques—for whom I have the greatest personal regard and respect—talked about having to replace a dwelling sold under the right to buy at greater cost. That is exactly the same argument put at the time of right to buy. It is fallacious. It would only be valid if you had to build one dwelling to replace one dwelling. But the fact is that people who live in the particular dwelling
850
after it has been bought continue to occupy it, only now as an owner whereas previously they occupied it as a tenant. But it makes the dwelling neither more nor less available than it was previously. I ask noble Lords to let me finish my remarks because I listened and did not interrupt one of your Lordships, tempted though I was to do so. I ask your Lordships to allow me the same courtesy.
The fact is that if we were to build to replace then the noble Lord's point has some validity; but in practice it is not so. Anyway, what about the £690 million that the Government are putting into the housing associations to build great numbers more? Is not that replacement? So I do not take the noble Lord's point. Finally, I must tell him—
Lord Jacques: Will the Minister give way, because he has named me? What I said was quite clear and concise. I said that if the housing associations had to sell and they replaced with other assets at the present day costs, then their costs and their rents would be greater. Nothing that the Minister has said contradicts that.
Lord Bellwin: Let me just point out that the key word there is "replaced". But the fact that the noble Lord said that in this way rents would be pushed up shows, with great respect, that he does not understand the point. The rents are in no way connected with the cost of the dwelling. The rents are fair rents based upon the valuation placed by the rent assessment committee and the rent officer. So the rents fixed have nothing to do with it at all and the noble Lord must certainly acknowledge that.
I come to the conclusion of my remarks. One can talk on the matter at length; it is very emotive. Let me remind your Lordships that in another place the Bill received a Second Reading by a majority of 117 votes, and on Third Reading by a majority of 91 votes. So let me finish by summing up very briefly the main points.
First, Clause 2 extends the right to buy only to tenants living in dwellings provided at public expense. Secondly, almost three-quarters of the dwellings of charitable housing associations are excluded. Thirdly, the number of dwellings sold would, beyond doubt, be vastly exceeded by the number of additional dwellings which charitable associations will provide with public funds. Fourthly, charitable funds are fully protected. Fifthly, there is no factual basis for the claim that this clause will undermine the work of charitable housing associations. The non-charitable experience cannot be denied. Finally, may I say in view of all the years I have spent particularly in public housing, that I put forward my concern for the people in it with as deep a conviction as anyone who has spoken today. I believe equally passionately that what this Bill is proposing and what this clause proposes will not have a disadvantageous effect upon anyone. It will give a right which people are entitled to have and they will not be second class citizens. I look to this House of Lords, to this Committee today, for justice. That, and only that, is the issue before us.
The Earl of Selkirk: I should like to thank noble Lords who have supported the amendment which we have put down. I should like to say only two things to my noble friend. I dare say that much of his speech was

851
prepared before he came into the Committee. He talked about unfairness. No tenant who is in a housing association house can complain of unfairness compared with the 2 million or 2½ million who are living in substandard houses.
He has missed the second point completely. Every house that is sold leaves the rented market and never comes back. It is only in the rented market that the people with a low standard of living can get proper accommodation. They are therefore taking away from the people who are at the bottom of the ladder the first step towards getting into decent accommodation. It is for that reason that I think that the basis of this clause is totally wrong and I very much hope that the Committee will reject it.
6.5 p.m.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 96; Not-Contents, 182.

DIVISION NO. 1

CONTENTS

Alexander of Tunis, E.

Ingrow, L.

Allerton, L.

Lane-Fox, B.

Astor of Hever, L.

Lauderdale, E.

Avon, E.

Lindsey and Abingdon, E.

Bellwin, L.

Long, V.

Beloff, L.

Lucas of Chilworth, L.

Belstead, L.

Lyell, L.

Bessborough, E.

McAlpine of Moffat, L.

Boardman, L.

McFadzean, L.

Bolton, L.

Mackay of Clashfern, L.

Boyd-Carpenter, L.

MacLehose of Beoch, L.

Brougham and Vaux, L.

Mancroft, L.

Campbell of Alloway, L.

Mansfield, E.

Carnegy of Lour, B.

Marley, L.

Cathcart, E.

Massereene and Ferrard, V.

Cayzer, L.

Merrivale, L.

Clitheroe, L.

Mersey, V.

Cockfield, L.

Milne, L.

Colville of Culross, V.

Mottistone, L.

Colwyn, L.

Murton of Lindisfarne, L.

Constantine of Stanmore, L.

Northchurch, B.

Cork and Orrery, E.

Nugent of Guildford, L.

Cullen of Ashbourne, L.

Onslow, E.

Daventry, V.

Orkney, E.

De Freyne, L.

Orr-Ewing, L.

De La Warr, E.

Plummer of St. Marylebone, L.

Denham, L. [Teller.]

Dilhorne, V.

Portland, D.

Drumalbyn, L.

Quinton, L.

Eccles, V.

Rawlinson of Ewell, L.

Ellenborough, L.

Rochdale, V.

Elton, L.

Rotherwick, L.

Faithfull, B.

St. Aldwyn, E.

Ferrers, E.

Sandford, L.

Forte, L.

Sharples, B.

Fortescue, E.

Skelmersdale, L.

Gainford, L.

Soames, L.

Gisborough, L.

Stodart of Leaston, L.

Glanusk, L.

Strathcarron, L.

Glenarthur, L.

Sudeley, L.

Glenkinglas, L.

Swinton, E. [Teller.]

Gowrie, E.

Teynham, L.

Gridley, L.

Thorneycroft, L.

Grimston of Westbury, L.

Trefgarne, L.

Hailsham of Saint Marylebone, L.

Vaux of Harrowden, L.

Vivian, L.

Hemphill, L.

Ward of Witley, V.

Home of the Hirsel, L.

Wise, L.

Hornsby-Smith, B.

Young, B.

852

NOT-CONTENTS

Abinger, L.

Hooson, L.

Airedale, L.

Houghton of Sowerby, L.

Airey of Abingdon, B

Howie of Troon, L.

Allen of Abbeydale, L.

Hylton, L.

Amherst, E.

Hylton-Foster, B.

Ampthill, L.

Ilchester, E.

Amulree, L.

Ingleby, V.

Ardwick, L.

Irving of Dartford, L.

Auckland, L.

Jacobson, L.

Avebury, L.

Jacques, L.

Aylestone, L.

Jeger, B.

Balogh, L.

Jenkins of Putney, L.

Bancroft, L.

John-Mackie, L.

Banks, L.

Kearton, L.

Barrington, V.

Kennet, L.

Bathurst, E.

Kilbracken, L.

Beaumont of Whitley, L.

Kilmarnock, L.

Belhaven and Stenton, L.

Kinloss, Ly.

Beswick, L.

Kinnoull, E.

Birk, B.

Kintore, E.

Bishopston, L.

Kirkhill, L.

Blease, L.

Kitchener, E.

Blyton, L.

Lawrence, L.

Bowden, L.

Lee of Newton, L.

Briginshaw, L.

Listowel, E.

Brockway, L.

Lloyd of Hampstead, L.

Brookes, L.

Lloyd of Kilgerran, L.

Brooks of Tremorfa, L.

Lockwood, B.

Bruce of Donington, L.

Longford, E.

Burton of Coventry, B.

Loudoun, C.

Byers, L.

Lovell-Davis, L.

Caradon, L.

McCarthy, L.

Charteris of Amisfield, L.

McIntosh of Haringey, L.

Chichester, Bp.

Macleod of Borve, B.

Chitnis, L.

Malmesbury, E.

Clancarty, E.

Margadale, L.

Cledwyn of Penrhos, L.

Masham of Ilton, B.

Clifford of Chudleigh, L.

Mayhew, L.

Coleraine, L.

Melchett, L.

Collison, L.

Meston, L.

Cooper of Stockton Heath, L.

Minto, E.

Cottesloe, L.

Mishcon, L.

Craigavon, L.

Molloy, L.

Craigmyle, L.

Monson, L.

Crathorne, L.

Moyne, L.

Crawshaw, L.

Newall, L.

Croft, L.

Northbourne, L.

Darwen, L.

Ogmore, L.

Davidson, V.

O'Neill of the Maine, L.

Delacourt-Smith of Alteryn, B.

Oram, L.

Peart, L.

Denington, B.

Pender, L.

Diamond, L.

Perth, E. [Teller.]

Donaldson of Kingsbridge, L.

Pitt of Hampstead, L.

Dormer, L.

Ponsonby of Shulbrede, L.

Eldon, E.

Prys-Davies, L.

Elliot of Harwood, B.

Radnor, E.

Elwyn-Jones, L.

Raglan, L.

Evans of Claughton, L.

Richardson, L.

Ewart-Biggs, B.

Robson of Kiddington, B.

Ezra, L.

Rochester, Bp.

Fisher of Rednal, B.

Rochester, L.

Fraser of Kilmorack, L.

Ross of Marnock, L.

Freyberg, L.

Rugby, L.

Gaitskell, B.

Sainsbury, L.

Gallacher, L.

St. Davids, V.

Gardner of Parkes, B.

Saltoun, Ly.

Garner, L.

Seear, B.

George-Brown, L.

Seebohm, L.

Gladwyn, L.

Selborne, E.

Grantchester, L.

Selkirk, E. [Teller.]

Greenhill of Harrow, L.

Sempill, Ly.

Haig, E.

Shackleton, L.

Hale, L.

Shaughnessy, L.

Hampton, L.

Shinwell, L.

Hanworth, V.

Sligo, M.

Harris of Greenwich, L.

Somers, L.

Hayter, L.

Spens, L.

Hill of Luton, L.

Stamp, L.

Hirshfield, L.

Stedman, B.

853

Stewart of Alvechurch, B.

Underhill, L.

Stewart of Fulham, L.

Wakefield of Kendal, L.

Stone, L.

Wallace of Coslany, L.

Strabolgi, L.

Walston, L.

Strathcona and Mount Royal, L.

Wells-Pestell, L.

Westbury, L.

Swinfen, L.

Whaddon, L.

Tanlaw, L.

White, B.

Taylor of Gryfe, L.

Wigoder, L.

Taylor of Mansfield, L.

Winterbottom, L.

Tordoff, L.

Wootton of Abinger, B.

Tryon, L.

Young of Dartington, L.

Resolved in the negative, and Clause 2, as amended, disagreed to accordingly.
6.17 p.m.
Baroness Seear Baroness Seear moved Amendment No. 9:
After Clause 2 insert the following new clause
("Protection for elderly orphans and others
. In section 34 of the Housing Act 1980 at the end shall be added—
"(5) In considering subsection 3(a) above the court must take account of:

(a) the age of the tenant; and

(b) the length of residence of the tenant in the dwelling-house; and

(c) the financial, physical or other support given by the tenant to the previous tenant; and

(d) where the landlord claims possession on the ground of under-occupation evidence of the efforts of the landlord to encourage other owner-occupiers to transfer to smaller dwelling-houses; and

(e) the social and financial consequences of making the order on other carers for elderly dependants who may be discouraged from continuing to reside with and care for elderly dependants." ")

The noble Baroness said: I am painfully aware that it will be extremely difficult to command your Lordships' attention after the exciting debate that we have had and the exciting vote that has just been taken. I shall attempt to be very brief, and I shall ask noble Lords to divert their minds to a far more mundane matter than the one which we have just been discussing.
We are not talking about housing associations, and we are not talking about the right to buy; so let us put those two matters behind us for the moment. Despite the sidelining by those who prepared the Marshalled List, we are not even talking about a species that has suddenly been called "elderly orphans". In fact, I assume from looking round your Lordships' Committee—and this certainly applies to me—that most of your Lordships are elderly orphans; but my amendment is not being moved on your behalf.
I am referring to a particular kind of elderly orphan, if we have to use that strange expression. I am referring to those people, men or women—and it is usually, but by no means always, women—who continue to live in the parental home (and I am speaking about council tenants) in order to look after elderly and infirm parents, which is a duty which often continues for a number of years. But the elderly and infirm parents, however unable to cope they become as the years go by, nonetheless are the legal tenants, and those who care for them have no status in relation to the tenancy of the house in which they live. Although they may have lived in the house for 50 years and may well be paying the rent—because in many cases it is those who care who also find the money for the rent—the legal tenant is in fact the parent for whom they are caring.
Then, when the parent for whom they have been caring dies, it happens not infrequently that those who have been caring are unable to continue in full-time work, and therefore their income is greatly reduced. Many of them will have drawn on the savings which they have made in earlier years in the hope that they would have something put by for their own old age. But when the parents who are the dependants die, those who have been caring for them have no legal status in relation to taking over the tenancy.
It is true that, today, many councils are considerate and do not claim occupation of the house and do not remove the carers, those who have been doing the caring, from the tenancy; but some councils still do, as was shown in a case which was brought up in another place when a very similar amendment was moved there. The purpose of this amendment is to give protection to those who have done the caring but have no rights as tenants, so that they cannot be displaced arbitrarily by the local authority in order that it may obtain possession of the house to put other people in it. It is to give an opportunity: not to give an absolute right, but to lay down in legislation that the courts must take into account the factors which have been listed in this amendment, which would make it far more unlikely that a local authority would be able to force an ex-carer out of the house in which he or she has lived and in which that person has done the caring—by doing which, incidentally, they have probably saved the public purse a very considerable amount of money, because had they not continued to care, the old parents would have had to be put into publicly-supported accommodation at a very high price.
It may be said that there is a general responsibility here to consider the circumstances of the person who is left in the house, but I submit that a general responsibility is not sufficient protection—and it has been proved that there is not sufficient protection for those whose interests I have described. It may also be said that by listing the factors to be taken into account some people may be excluded because particular factors have not been included; but it does not say that these are the only factors to be taken into account. There remains a general responsibility as well; but by putting these particular elements into the legislation it makes it far more likely than if this clause were not included that people in the position I have described will be able to continue in the family home and will not be evicted on the death of parents. It is for this reason that I beg to move.
Baroness Birk: From these Benches I support the amendment moved, despite the noble Baroness, Lady Seear, having referred to us as "elderly orphans". Unfortunately, an orphan I now am, but I try to pretend that I am not all that elderly. Nevertheless, I feel that this is something that should be in the Bill and should be spelled out in this way. As the noble Baroness said in moving the amendment, it could be argued, and probably will be, that there is a general responsibility in the 1980 Act in the reference to conditions under which a court could consider it reasonable to make an order, but that is really rather a large generalisation.

855
In moving the amendment the noble Baroness referred to the situation where there is a daughter who is left alone, to whom the noble Baroness wanted the tenancy assigned. I take it that the same would apply whether it is a man or a woman. We should make this quite clear.
Baroness Seear: I believe I did refer to a man or a woman, but more usually it is a woman.
Baroness Birk: I am sorry if I misunderstood, but I was sure that that was what the noble Baroness meant. Although it is true that very often when this happens local authorities make sure that a person is not rendered homeless in this way, or put into rather inferior accommodation, I feel that unless the Government can come up with a very good reason to the contrary this provision should be put in the Bill and should be clearly in the statute.
There could be a problem where the house is a large one, with three or four bedrooms, and with perhaps one person living in it on their own. I should like the person concerned to have a choice. In some circumstances the person left, man or woman, may be quite willing to move to smaller accommodation. In other circumstances the person concerned may feel that, as they have lived in the house for a very long time—and we would all understand and have sympathy with that feeling—they may not want to be moved from what is his or her own home. One would hope that this situation could be resolved by the sensitivity of the local authority and by co-operation and agreement on both sides. Therefore, we on these Benches would certainly support the amendment moved by the noble Baroness.
Lord Boyd-Carpenter: I have a good deal of sympathy with the object of this amendment, but I must confess that I am very much puzzled by paragraph (d). I cannot but feel that to introduce that into the provisions would undoubtedly give rise to a great deal of acrimony in the pursuit of other, probably quite irrelevant cases which could tend, if anything, to confuse rather than help the court. I do not know whether there is any explanation of this, but these words strike me as rather harsh.
Baroness Faithfull: I support the amendment, and would ask my noble friend the Minister for some information. Under the Chronically Sick and Disabled Persons Act 1969 I have very often had to visit elderly parents who are handicapped, sometimes mentally, sometimes physically, being cared for by a daughter, or in some cases by a son, living in the home; and I have tried to persuade the parents to alter the tenancy in favour of the daughter or son. But such is the strange pattern of human relationships that very often parents feel that the last bastion of independence that they have is to hold the tenancy. They may not be paying the rent, but they feel that to give up the tenancy in favour of their daughter or son is almost to give up life; and it has been impossible to persuade them to alter the tenancy, placing it in the name of the daughter or son.
Very often I have found that local authorities have been extremely sensitive and understanding, and
856
housing committees have acceded to the wishes of the remaining daughter or son and have allowed that person to have the tenancy without moving out of the house; but, sadly, some local authorities do not do this. They subscribe to the rule in their authority that if the person in whose name the tenancy stands should die, anyone else in the house must move out. Therefore, I would ask my noble friend the Minister whether he is aware of which authorities in England and Wales do this, and whether he is satisfied that all is well. I suspect that most is well, but not all.
I would make one other point following the comment of the noble Lord, Lord Boyd-Carpenter. Very often a daughter, after looking after her elderly parents, is unable to get a job on the employment market. Coming, as I do, from Oxford, I know that lodgings are very much in need, and I well recall at least three occasions on which daughters have come to me and said: "I have lived in the house for 50 years and have cared for my parents. The only thing I can do now is to let out lodgings and have people in the house".
The point of the noble Baroness, Lady Birk, about her staying in a bigger house when in fact the bigger house is needed for families, is a valid one. I regret to have to say that in two authorities I know this has been forbidden for the daughter. Therefore, I think that the community lost some good lodgings for young people and deprived the single married daughter of a living. Therefore, I would support this amendment, but at the same time ask my noble friend the Minister whether he is aware of what is the general attitude of local authorities in this country.
6.31 p.m.
Baroness Gardner of Parkes: I should like to support the general principle behind the question of caring for the carer. That is important. But I am not entirely happy with this amendment in the form that it takes. If a local authority has a long waiting list they are often desperately in need of this accommodation. My own experience on a local authority has been of single people surviving parents in, usually, a flat—as the area I was associated with had virtually no houses—and occupying a flat for which thousands of families must have been waiting. In these circumstances the local authority must have the right to rehouse such people in a much smaller unit, a one-person unit, if they are on their own.
The point about lodgers raised by my noble friend Lady Faithfull is an interesting one. I know that lodgers are now permitted in any accommodation in that authority area, and I thought that it was universal throughout the country. In the days when lodgers were not permitted, much greater hardship existed and much more property was under-used. It must be appreciated that if you have a large waiting list with a number of families in very substandard accommodation it is unfair to create a tenancy more or less in perpetuity, because after all the person given the tenancy could then have someone else come in to care for them when they get elderly, and so this under-occupation could go on for a long time.
I would also emphasise, as did the noble Lord, Lord Boyd-Carpenter, that I find subsection (d) quite extraordinary and out of character. I certainly would

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not wish to support that part of the amendment. However, the principle of caring for the carers and making it necessary to take into account the length of time they have been there and the care they have been giving to the parents or elderly relative is valid, and I would support that part of the amendment.
Baroness Masham of Ilion: This is an important amendment. Anyone who works for the health service knows that one of the growing problems is the care of the elderly. These people whom the noble Baroness, Lady Seear, seeks to help do a tremendous service to their parents and to the community, very often at a great sacrifice to themselves. I strongly support the spirit of the amendment.
Lord Evans of Claughton: Hardly surprisingly, I suppose, I support my noble friend's amendment. In fact, my name appeared by mistake as initiating it originally. That was not our mistake but a mistake somewhere in the machinery. I should like to follow up the points made by previous speakers. The noble Baroness. Lady Faithfull, makes a good point that the elderly parent, widow or widower, often quite rightly feels that this is the last bastion and they would not pass the tenancy on even with the agreement of the local authority. Indeed, in some cases—and I can think of quite a number in my own experience—when the parent gets very much older, in spite of the considerable care that the daughter or son has given they become neurotically suspicious that the child living with them is involved in some deep and dark laid plot to have them removed from the house so that they can enjoy it alone. Therefore, I do not think that, in many cases that is likely to work.
I share the concern about the problem when a surviving child is left in a family house. This should be dealt with not by evicting them, which does happen on occasion, but by treating that kind of person with the same kind of friendly persuasion that local authorities have to use in persuading a widow living on her own to give up a large family house and go somewhere smaller. Speaking generally as someone who has been involved in local government, I do not think that this happens very often. Most local authorities are sympathetic, but there is the odd case where a great deal of hardship is done.
This Government have been extremely kind to the tenants in the public sector, as the noble Lord the Minister has told us on a number of occasions. This is an example where the local authority tenant does not have the same protection as the tenant of the private landlord. In his case, in controlled tenancies of course, the tenancy can pass twice. While the tenants in the private sector have not fared as well because they do not have the right to buy, they are, in the sense that they have more continuity of the right to possess the property, better protected than the tenant in the public sector. I hope that the Govenment will take a favourable view of this amendment.
Lord Skelmersdale: The anti-climactic feeling referred to by the noble Baroness, Lady Seear, in moving this amendment does not, by the number of speeches we have had on it, seem to have carried through. The Government are not out of sympathy
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with the intention behind this amendment. I can assure the noble Baroness that I wholly agree with the view that councils should adopt a sensitive and compassionate approach on a case by case basis when deciding whether or not a successor tenant should continue to remain in the family home in which the parent has died.
Perhaps at this point I ought to clear out of the way exactly who the successor tenant is. I can tell my noble friend Lady Gardner that under Section 35 of the 1980 Act a secure tenant has a right to take in lodgers, but of course the security does not then pass to the lodger. I should perhaps tell my noble friend Lady Faithfull of the succession rights of tenants of local authorities, new towns, and housing associations. On the death of a secure tenant the tenancy will pass to the surviving spouse living in the house, or to a close relative who has been living there for the 12 months prior to the secure tenant's death, providing that the deceased tenant was not himself, or herself, a successor under the Housing Act 1980. In other words, it only goes on for one generation.
In the case of a joint tenancy when one person dies the tenancy passes to the other person, who becomes the sole tenant, but there will be no further right of succession. Thus, one succession happens automatically under the 1980 Act, but a landlord may agree to let a further member of the family take over the tenancy after that.
The intention of the amendment is to set out certain factors which the court—this amendment is totally about courts, as I understand it—should have regard to when considering the reasonableness of making a possession order. The amendment would make the factors for the test of reasonableness applicable not only to orders served under Ground 13 but also, among others, to the five grounds in Schedule 4 to the 1980 Housing Act under which the landlord alleges misconduct by the tenant. The factors, in our view, should not be relevant to consideration on misconduct grounds.
Ground 13 of Schedule 4 gives landlords a ground to repossess only where, under the succession rules set out in Section 30(2)(b)—which I have just read out—of the 1980 Act, a member of the family, other than the spouse, of the previous tenant has taken over the tenancy and the dwelling is thereby under-occupied. To be valid, notices of possession have to be served under Section 33 of that Act more than six months but less than 12 months after the previous tenant's death. The court has to consider whether it would be reasonable to make the order, and be satisfied that suitable alternative accommodation will be provided when the order takes effect.
The Act does not specify the factors which the court should have regard to when considering reasonableness. A court, in applying the test of reasonableness, is expected to take account of all the relevant factors whether they relate to the personal circumstancs of the tenant, the particulars of the home, or of alternative accommodation, or the pressures on the council to provide homes of that type for people on its waiting lists in urgent housing need. Setting out these factors in legislation is, I am advised, unnecessary. In any case, evidence of the landlord's efforts to encourage other under-occupiers to transfer and possible

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financial and social consequences on other people caring for elederly dependants would introduce considerations which had nothing to do with the case before the court and the instruction to the court which the noble Baroness's amendment gives.
In the light of a considerable body of case law in repossession cases as to what courts can and do take into account in assessing reasonableness, I am not at all convinced that the arguments that I have heard so far suggest that the sort of factors specified in the amendment—and various of my noble friends have referred to heading (d)—are likely to be ignored at present by a court. It does not therefore seem that the amendment is necessary. Furthermore, as a usual line of Governments, I must point out that the amendment is defective in embracing grounds other than the one which appears to be the subject of concern.
Baroness Fisher of Rednal: I must say how disappointed I am from this side of the Committee with that reply. It bothers me when any local authority wants to repossess under the succession rule, especially in cases such as we have heard enumerated today by the noble Baroness; because more often than not they have been daughters or sons who have been in that home all their lives. If it is the father who dies, they may remain, but if it is the mother who dies that is the end of it. When local authorities take that line I think it a very harsh line and one that we ought not to encourage.
If a mother aged, say, 75 or 76 is living in a council house which she has purchased, then on her death, obviously, her daughter may remain in possession. Nobody then expresses the view that the house is too big for a single person. Nobody says to a young married couple: "You can't buy a four-bedroomed house because it is too large for your needs". If you are renting a property, somebody may say, "Oh, that house is too big for you now that you are alone". Apparently, it is not too big for you, however, if you have taken the opportunity to buy it. So there is an iniquity about the matter of repossession. I always feel that children who, for whatever reason, have spent all their lives with their parents should not have to lose their home for this reason of repossession—and there are many people in this category.
When I was chairman of what was perhaps the largest local housing authority in the country, we had joint representations from all kinds of individuals in this category. Many of them were widows who had given up a bedroom to take a male lodger, perhaps, a university student or a worker from British Leyland at Longbridge. The man settled in the house and often almost became a son to the tenant of the house. We found this difficulty of repossession so we decided—since Birmingham has always had a joint tenancy policy—to overcome the repossession difficulty by having a joint tenancy. When a tenant who was perhaps 55 and 60 was getting terribly worried because a "son" or "daughter" of this kind, who was not really a son or daughter but perhaps a lodger who had come to be regarded as a son or daughter, might be evicted, we went into it in great
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detail and included that person as a secure tenant eventually. I would have thought that this might have been one of the ways in which the Government would encourage other local authorities to deal with the matter. I want to stress that it would be quite wrong of any Government to have this iniquitious situation in the cases of people who purchase and people who rent.
Baroness Ewart-Biggs: I should like briefly to support this amendment. It is generally felt that children who stay with their parents until the end and look after them, who thus show their loyalty to their parents and also take away this responsibility from the state, deserve the recognition of society that they have done so. I think that in many cases such children on the death of the parents might well wish to change houses. I should therefore like to support what the noble Lord, Lord Evans, has said. In many cases, it surely would be possible for this to be arranged between the authority and remaining sons and daughters quite amicably. I think that for society to say: "You have carried out your task of looking after your parents. Now you must get out", is something very hard to accept.
Lord Skelmersdale: I have no doubt that there are local authorities up and down the country who make the sort of arrangements with their tenants that the noble Baroness has referred to. But I must point out that it is for the local authority to manage its housing stock in its own way. They are the funders, the builders and the landlords. The landlord and tenant argument applies to them just as much as, in other circumstances, it might apply to the private sector tenant and the private sector landlord. The noble Baroness, Lady Fisher, spoke about the right to buy as such, comparing the right to buy and the circumstances surrounding that with the, in a sense, right to tenancy and the circumstances surrounding that. I should have thought that the inquiry was not so much the right to buy as in the disablement of people not to have the right to buy.
Baroness Seear: The only two objections raised to this amendment are to head (d) which, although not a vital part of the amendment, is worth keeping in simply because there has been a tendency—and I would not put it stronger than that—to feel that the single woman left on her own is someone who can be not so much taken advantage of as perhaps treated as of very little importance. If pressure is being put on her to get out of occupation on the grounds that the house is under-occupied, that it is too big for her, then it is at least reasonable to be assured that that kind of pressure is being put on other categories of tenant. Although I do not regard that as the most important point, I think it is worthwhile keeping it in.
I must say that I was amazed at the last remarks of the noble Lord, Lord Skelmersdale, when he said that this, after all, was entirely a matter to leave to the local authorities. One would really think that there had never been any national housing legislation governing the way in which local authorities conducted their housing affairs; whereas, as your Lordships well know, the statute book is cluttered up with legislation determining how local authorities should or should not conduct their affairs. As an argument against my

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amendment, I must say I do not think that that holds water. We are getting on this evening and we have had a very heavy day. I am not going to say any more, but I am going to put this Motion to the Committee.
6.50 p.m.
On Question, Whether the said amendment (No. 9) shall be agreed to?
Their Lordships divided: Contents, 101; Not-Contents, 95.

DIVISION NO. 2

CONTENTS

Airedale, L.

Kilmarnock, L.

Amherst, E.

Kirkhill, L.

Ardwick, L.

Lawrence, L.

Auckland, L.

Lee of Newton, L.

Avebury, L.

Lloyd of Kilgerran, L.

Aylestone, L.

Lockwood, B.

Balogh, L.

Lovell-Davis, L.

Banks, L.

McGregor of Durris, L.

Beaumont of Whitley, L.

McIntosh of Haringey, L.

Birk, B. [Teller.]

Masham of Ilton, B.

Bishopston, L.

Mayhew, L.

Blease, L.

Melchett, L.

Bowden, L.

Merrivale, L.

Brockway, L.

Milner of Leeds, L.

Brooks of Tremorfa, L.

Molloy, L.

Burton of Coventry, B.

Morris of Kenwood, L.

Caradon, L.

Mountevans, L.

Chichester, Bp.

Napier and Ettrick, L.

Cledwyn of Penrhos, L.

Ogmore, L.

Collison, L.

Oram, L.

Darwen, L.

Peart, L.

Diamond, L.

Pitt of Hampstead, L.

Donaldson of Kingsbridge, L.

Ponsonby of Shulbrede, L.

Evans of Claughton, L.

Prys-Davies, L.

Ewart-Biggs, B.

Robson of Kiddington, B.

Ezra, L.

Rochester, Bp.

Faithfull, B.

Rochester, L.

Fisher of Rednall, B.

Ross of Marnock, L.

Gaitskell, B.

Sainsbury, L.

Gallacher, L.

Saltoun, Ly.

Gladwyn, L.

Seear, B. [Teller.]

Hale, L.

Segal, L.

Hampton, L.

Stedman, B.

Hanworth, V.

Stewart of Alvechurch, B.

Harris of Greenwich, L.

Stewart of Fulham, L.

Hatch of Lusby, L.

Stone, L.

Hayter, L.

Swinfen, L.

Hirshfield, L.

Taylor of Gryfe, L.

Hooson, L.

Taylor of Mansfield, L.

Houghton of Sowerby, L.

Tordoff, L.

Howie of Troon, L.

Underhill, L.

Hylton, L.

Vaux of Harrowden, L.

Hylton-Foster, B.

Wallace of Coslany, L.

Irving of Dartford, L.

Wells-Pestell, L.

Jacobson, L.

Whaddon, L.

Jacques, L.

White, B.

Jeger, B.

Wigoder, L.

Jenkins of Putney, L.

Winstanley, L.

John-Mackie, L.

Winterbottom, L.

Kennet, L.

Young of Darlington, L.

Kilbracken, L.

NOT-CONTENTS

Airey of Abingdon, B.

Beloff, L.

Alexander of Tunis, E.

Belstead, L.

Allerton, L.

Bessborough, E.

Avon, E.

Boardman, L.

Bathurst, E.

Boyd-Carpenter, L.

Belhaven and Stenton, L.

Brookes, L.

Bellwin, L.

Burton, L.

862

Campbell of Alloway, L.

Long, V.

Carnegy of Lour, B.

Lucas of Chilworth, L.

Cathcart, E.

Lyell, L.

Cockfield, L.

McFadzean, L.

Coleraine, L.

Mackay of Clashfern, L.

Colville of Culross, V.

Macleod of Borve, B.

Colwyn, L.

Mansfield, E.

Constantine of Stanmore, L.

Margadale, L.

Cork and Orrery, E.

Massereene and Ferrard, V.

Cottesloe, L.

Mersey, V.

Craigmyle, L.

Molson, L.

Crawshaw, L.

Monson, L.

Croft, L.

Murton of Lindisfarne, L.

Davidson, V.

Newall, L.

De La Warr, E.

Norfolk, D.

Denham, L. [Teller.]

Nugent of Guildford, L.

Dormer, L.

Onslow, E.

Eccles, V.

Orkney, E.

Elliot of Harwood, B.

Orr-Ewing, L.

Elton, L.

Pender, L.

Ferrier, L.

Plummer of St. Marylebone, L.

Forte, L.

Fortescue, E.

Radnor, E.

Gardner of Parkes, B.

Rochdale, V.

Gisborough, L.

St. Aldwyn, E.

Glanusk, L.

St. Davids, V.

Glenarthur, L.

Saint Oswald, L.

Gowrie, E.

Sandford, L.

Grantchester, L.

Selkirk, E.

Gridley, L.

Skelmersdale, L.

Grimston of Westbury, L.

Soames, L.

Haig, E.

Stodart of Leaston, L.

Hailsham of Saint Marylebone, L.

Swinton, E. [Teller.]

Teynham, L.

Hemphill, L.

Thomas of Swynnerton, L.

Ingrow, L.

Trefgarne, L.

Killearn, L.

Tryon, L.

Kintore, E.

Vivian, L.

Kitchener, E.

Wakefield of Kendal, L.

Lane-Fox, B.

Wise, L.

Lauderdale, E.

Young, B.

Lindsey and Abingdon, E.

Resolved in the affirmative, and amendment agreed to accordingly.
6.59 p.m.
Baroness Lane-Fox Baroness Lane-Fox moved Amendment No. 10:
After Clause 2, insert the following new clause:
("Physically disabled persons
.—(1) In Part I of Schedule Ito the 1980 Act (Exceptions to the Right to Buy) paragraph 3 shall be omitted.
(2) Paragraph 4 of Schedule 1 to the 1980 Act shall be renumbered as sub-paragraph (1) of that paragraph and after that provision as so renumbered there shall be inserted the following sub-paragraph—
"(2) Where a dwelling-house is one of a group which has been provided with facilities (including a call system and the services of a warden) specially designed or adapted for the needs of disabled persons.".").
The noble Baroness said: As your Lordships will see, Amendment No. 10 is in two parts. The first part deals with owning your own home. At present, if tenants are disabled, they are not allowed to buy their council houses in many areas, and in housing associations, whereas able-bodied tenants are allowed to do so. Why should this be? Is it because society feels that there is a need to be paternalistic towards them; that they cannot manage their own affairs, even though their peers are living independently elsewhere and getting on splendidly; or is it because it is thought that they are generally short of cash and should not be asked to buy?
There are now disabled tenants who rightly think that they are ill-used by not being allowed to buy their own home. Some have endeavoured to save in their remunerated employment and, like many of us, have decided to put their nest-egg or their mortgage into

863
their home. Others may belong to the luckier section of the disabled, who have received large compensation or perhaps some windfall. Why should their disability debar them from buying their house?
Linked to the core of this amendment is an appeal to all organisations working for disabled people—including RADAR of which I am a vice-president—to press housing authorities to use the money available to them to build more houses to rent; helped, of course, by grants through the very substantial housing improvement programme—all ready and waiting to be used. With the local authorities, £800 million of accumulated capital receipts under-spent since 1980, plus HIP money, is available for building new houses. If this can be mobilised quickly, it disposes of the old need to keep an adapted house in the belief that it will do for another of this strange breed called disabled people.
There are three reasons why new building is better. First, it is not likely that adaptations suitable for one will be right for another. Second, it is most important that local authorities should be pressed to use all the hundreds of thousands of pounds available to them to build more houses and to include a proportion of mobility housing: houses with wide doors and flat or ramped entrances, to which tailor-made adaptations can, if necessary, be made later. Third, in this way one could create more homes to rent for all the disabled people who cannot afford to buy—something we all want to have, especially with improved medical science and the threat of more disabled people to be housed in the future. If possible, let those houses be built with flattened kerbs and convenient approaches. Meanwhile, let those who can afford it buy, if they want to, shouldering responsibility for their own housing, free from the stigma of exclusion through disability. We do not want insult to be added to injury.
The second part of the amendment is self-explanatory. Why these groups are different is because they provide accommodation which is half-way between residential accommodation and the community. There are those of us who cannot pretend to be able to live independently, who must have backup support. To give an example of the kind of carers I am talking about, the John Grooms Housing Association, with its care schemes, aims to provide positive caring within the housing complex. Care staff are recruited from the immediate locality, either paid or unpaid, but with a helpful attitude. It is necessary, they find, to tenant able-bodied dwellings in the same vicinity as the integrated wheelchair schemes. In these special schemes for severely disabled people it is important to retain control over the tenancies. Now that there is a welcome move towards getting more people out of residential accommodation, it is essential that planning for their care in the community is not forgotten. Among many important Government schemes for information technology are plans for data bases linking disabled people wanting suitable places to live with available provision. For these reasons, I beg to move this amendment.
Lord Swinfen: The noble Baroness mentioned in her speech the John Grooms Housing Association. I ought to declare an interest. I work for the John Grooms
864
Association for the Disabled, which provides most of the charitable funds for that particular housing association. I am not sure that I agree entirely with my noble friend's amendment, for a number of reasons. The basic reason is that specially designed accommodation can cost as much as another £10,000. One has to bear in mind that much wider corridors and doors than normal are needed; also, larger lavatories. Therefore, a much bigger floor area for the dwelling as a whole is needed. This increases the cost of any one dwelling in a scheme. Therefore, one tends to end up with fewer dwellings for the scheme as a whole than one would have if the accommodation were not specially designed.
The final part of my noble friend's amendment relates to dwelling-houses which include a call system and the services of a warden. Does the warden have to be employed 24 hours a day? In a number of schemes the warden is on duty only from, say, 10 o'clock at night until 7 o'clock in the morning. Does that count as full wardening, or would that take it out of the scheme? There may also be dwellings where no particularly special design for disabled persons is needed; but there are other dwellings, containing very expensive and extensive equipment which is specially designed for disabled people, where there is no special call system—very often because the tenant does not want it and feels he can do without it.
Baroness Gardner of Parkes: I should like to support the amendment moved by my noble friend Lady Lane-Fox. It is wrong that disabled people should be discriminated against when it comes to the right to buy. It should also be appreciated that not all disabled people live in buildings which were originally designed for the disabled. Very large numbers of people live in adapted dwellings. The adaptations make those dwellings easily usable by anybody. If there have been highly specialised adaptations and a dwelling is purchased by the person living in it, the next person to buy that dwelling would take into account those special adaptations. It is logical that the dwelling would be sold to someone with a similar disability.
It is not fair that only one section of the community should be excluded in this way. The point made by my noble friend about the extra cost involved in building larger dwellings would be reflected in the purchase price. The price of every dwelling which is sold is based upon the amount of space in it and the amenities provided with it. It may be that such dwellings for the disabled would be so much more expensive to purchase that people would not wish to exercise their right to buy. But that, to me, is not important. What is important is that they should have the right to buy.
The point made by my noble friend in the second part of her amendment about the call system and the services of a warden is too specific. It would be better if those words were not included. They have probably been included by my noble friend Lady Lane-Fox to indicate a type of group dwelling which is designed entirely for people who require sheltered housing. Such accommodation should not, I believe, be included in the amendment. It also has to be remembered that after people have moved into their homes they may become disabled, and that many of them may have exercised their right to buy before the

865
adaptations were made. That kind of dwelling could certainly be sold to a similar purchaser. I support the amendment.
Baroness Elliot of Harwood: I, too, support the amendment. As chairman of a housing committee, I have had a certain amount of experience of this type of accommodation. I used to insist that in small groups of houses one house was built which could be used by somebody who was in a wheelchair or had some kind of disability. It always worked very well. The expensive way is to build houses without making any provision for someone who is disabled.
The important point about providing houses for the disabled is not to put them all together but to mix them up with the ordinary community so that they are part of the community housing scheme. It is quite true that there should, perhaps, be a number of homes specially for severely handicapped people, in which case they must be given the care and other facilities which have been mentioned. Whether these should include a call system and the services of a warden is doubtful, but there are cases where these may be needed. The important point is that all housing authorities ought to make provision for disabled people as part of their schemes. If this were put into the Bill, it would encourage those local authorities who do not do this to do so in future.
Lord Auckland: I live in an area of Surrey in which there are a number of organisations for the disabled, some of which are—to say the least—quite unsuitable for housing those who are residing there. I mean no disrespect to the organisations themselves, which are doing their very best. My noble friend's amendment could go a long way to offsetting this. I can quote one example, which is admittedly of a sheltered housing scheme in Leatherhead, which concerns a girl of 17 who suffers paralysis and is in a wheelchair. Through having a home suitably adapted, she is now able to carry on a full-time job and thus save the local ratepayers' and the taxpayers' money. She has some pride in her work and works for herself. The amendment of my noble friend will aid those who are disabled to the extent that they are still capable of contributing something to the community.
Baroness Masham of Ilton: I believe I am right in saying that the law of the land lays down that if one has lived in a council house for more than three years, one has the right to buy the house if one so wishes. If a member of the family is disabled and the house has been adapted in some way, the family is denied the right to buy their house. If a house is adapted for a disabled person, there can be a 90 per cent. improvement grant for even private housing adaptions.
I support this amendment on the grounds of discrimination. If there is a street of council houses, and one of those houses has been adapted, the tenants of all those houses will have the right to buy with the exception of that one family. Is that good integration? Is it not piling on the agonies of disability and making that particular family stick out like a sore thumb? If the disabled person is the breadwinner of the family, he will become very aggrieved. The discount on his
866
council house will most likely be more than the cost of the adaptations.
There is a need for more specially built houses and adapted houses as the noble Baroness, Lady Lane-Fox, has already said. But if the Government say, as they do, that they have quite a pile of money, then this is an excellent way in which to spend some of that money, and I hope that the Government will do so. Equipment can be removed, so that is not a problem which the noble Lord, Lord Swinfen, said it might be. Some people do need special housing which has warden assisted help and this should be protected and not for sale, otherwise it might disrupt the organisation of the councils which run it.
7.16 p.m.
Viscount Ingleby: I should like to congratulate the noble Baroness, Lady Lane-Fox, not on her amendment—with which I disagree—but on the tremendous courage she shows in overcoming all the difficulties—not least, being in this Chamber for nearly five hours without a break.
My noble friend Lady Darcy (de Knayth), who unfortunately is sick, and I have agonised over this amendment for the past fortnight. We both started off by welcoming it because we felt that the amendment provided an opportunity to right an unfair discrimination. Since then, quite independently, we have both come to the conclusion that we are totally opposed to this amendment so long as there is a shortage of suitable accommodation for disabled people.
This amendment may benefit one class of disabled persons—those who are lucky enough to be living in suitable accommodation—but it goes completely against the interests of the many others who would like to have suitable accommodation but who do not have it, and also against the interests of future generations of disabled people. If this amendment is adopted, it will remove specialist housing from the disableds' rented pool. Such housing would be sold and would then come on to the open market and be resold to the highest bidder. Once it is sold, it is gone forever. It is probably true that the great majority of disabled people will never be in a position to buy.
What is the extent of the demand by disabled people, who are council house tenants, for the right to buy? The information from which I am about to quote comes from RADAR. Noble Lords may like to be reminded that RADAR has nothing to do with the Royal Air Force but stands for the Royal Association for Disability and Rehabilitation. RADAR tell me that so far as purpose-built housing is concerned, they have received only two or three inquiries from council house tenants interested in buying, and those people quite understood when the reasons why they could not buy their houses were explained to them.
In respect of specially adapted housing, RADAR have received between 10 and 20 inquiries. The majority of those were not challenging the exclusion of houses which are substantially different, but merely claiming that in their particular cases there were a number of minor adaptations to the house which should not have taken the houses out of the right to buy. So, as far as RADAR know, only a handful of disabled tenants of council houses want the right to buy.

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There is still a very serious shortage of suitable accommodation for disabled tenants; I am sure I can say that without fear of contradiction from any part of your Lordships' Committee.
Let us now look for a moment at the performance in this field over the past three years. In the case of purpose-built housing for the disabled, only 270 new units were built last year, compared with about 500 units two years ago. We are still a tremendously long way short of the 20,000 units estimated to be needed. This was the estimate given by Judith Buckle in 1971 in a DHSS publication entitled Work and Housing for Impaired People in Great Britain.
Since that publication was written, a large number of young disabled people, who previously would probably have spent their lives in institutions, now want to live independent lives and to have their own housing, possibly with some assistance from able bodied people. So one then has to add them to the figure of 20,000 that Judith Buckle quoted.
So far as specially adapted housing is concerned the record is better, and I congratulate the Minister; last year 4,500 new units were provided, which is nearly double the figure for three years ago. But the demand for specially adapted housing is still much greater than the supply, so there is still clearly a very serious shortage of suitable accommodation.
The real question therefore is not one of unfair discrimination but of the best use of precious resources. Is it better to sell them for the benefit of particular individuals, or is it better to keep them for those who are still without suitable accommodation, and for future generations? I venture to suggest that if you asked disabled people now living in specially adapted or purpose-built accommodation, provided by the council, "When you no longer need this accommodation what do you think ought to happen to it?", the great majority would say that it ought to be kept for another disabled person.
I urge your Lordships to resist this amendment. At the same time I thank the Minister, who I know is very keen to provide more housing for disabled people and wants to encourage local authorities, housing associations and charitable housing associations—freed from the distraction, we hope, of the right to buy—to provide many more suitable housing units for disabled people.
Lord Hylton: I had some initial sympathy with this amendment on the ground of non-discrimination, but I hope the Minister will not be tempted to accept it for that reason. I should like to support very strongly what my noble friend Lord Ingleby has just been saying. For many years we have had a shortage—and it still goes on—of even ground floor local authority flats. In addition to that, there is a shortage of adapted ones and of purpose-built ones. Therefore, I feel that this amendment is premature and ought to be resisted.
Lord Bellwin: The effect of this amendment, as my noble friend Lady Lane-Fox has explained, would be to narrow the range of disabled persons' dwellings excluded from the right to buy. The existing provision, in paragraph 3 of Schedule 1 to the 1980 Act, excludes
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all dwellings which have features which are "substantially different" from those of ordinary dwelling houses and are designed to make the dwelling suitable for occupation by the physically disabled. This amendment would restrict the exemption to dwellings which are grouped together and have special facilities, including a warden service.
I have sympathy with the views my noble friend has expressed. The present position is not satisfactory. There is some evidence that different landlords give different interpretations to the phrase "substantially different" in paragraph 3, and that the right to buy is being denied in some cases on what I would frankly regard as inadequate grounds. While it is true that tenants have recourse to the courts if they consider they are being unjustly denied the right to buy, and some tenants have exercised that right, we all know that going to the courts is not a realistic option for most tenants.
Moreover, even where paragraph 3 is correctly applied, it is clear that there is a sense of injustice among many disabled tenants that they should be denied the right to buy because they, or a member of their family, are disabled. This injustice is felt particularly keenly where what is at issue is a number of adaptations to an otherwise normal council house. We receive a steady trickle of letters from tenants in these circumstances, who say, "Why should the fact that I or my wife is disabled mean that I should suffer the further misfortune of being denied the right to buy?" I think that argument should be further considered. It is particularly hard where the tenants concerned are prepared to pay a fair price for the house and for the adaptations that have been made. There is also, of course, a risk that tenants in that position will refuse to have adaptions done to their homes rather than risk losing the right to buy.
I listened carefully to what my noble friend Lord Ingleby said. Really we are back to the basic arguments, the basic belief in it all. I happen to believe very deeply that the answer is that if we have a shortage of accommodation for the disabled—and we have—we ought to be building more such accommodation. It is not right to say that you have to make a choice; it should not be right. As I said years ago, I would want to see the emphasis on building more and more single-person, one-bedroom or two-bedroom accommodation, which was needed and I think still is; and I think in this case there ought to be much more emphasis on building accommodation for the disabled. It is not a question of money. I said in the earlier debates that resources are made available to housing associations; local authorities have great sums of money in the coffers by way of capital receipts which they could apply. This should be a priority. I think that really is the answer to the very real concern which I know my noble friend Lord Ingleby and my noble friend Lady Darcy (de Knayth) must have agonised over before they came to the conclusion to which they did.
The Government will, therefore, give further consideration to the issues raised by the amendment which my noble friend Lady Lane-Fox has moved. In particular, we would want to consider whether only conventional housing which has been adapted for the

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disabled should be brought within the right to buy, or whether, alternatively, both adapted and purpose-built accommodation for the disabled should come within the right to buy, only excluding, as in Scotland, disabled accommodation with a warden facility. We want to give further consideration to these points before Report stage. I wonder whether, in the light of what I have said, my noble friend would feel able to withdraw her amendment.
Baroness Birk: I waited to hear what the Minister had to say about this amendment. While I appreciate very much how the two noble Baronesses feel about it, I must confess that tonight my tribute is to the noble Viscount, Lord Ingleby, who, also speaking from a very strong personal experience of being disabled, yet took an entirely contrary line—a line which we certainly support.
The Minister of course remembers—he referred to them—all the discussions that took place on Schedule 1 to the 1980 Act. In the context of the acceptance of the right to buy, it seemed then that to make that exception was something which was generally agreed. The importance of having a pool of houses for the disabled to rent was recognised; and also the expense involved in local authorities having to build or adapt houses, and that it was absolutely right to do it that way. I know the Minister always says that there is plenty of money around for local authorities to build houses. Of course, when you talk to local authorities it is a different story. Although there is a certain amount of capital—the Government suddenly made that available, but the authorities had to make decisions within an impossibly short time—there is not enough on their revenue accounts or from Government allocations for them to be able to pay the debt charges and all the other things involved. But we will not go into that; that is a side issue.
I feel strongly that because of the demand, and because of the necessity of adaptation—we are talking here, on the whole, of people who are gravely disabled—it also involves the question of extra land, which many authorities have not got. The type of housing, with adapted ramps, fitments at wheel chair level and so on, means ground floor accommodation, and this involves land. There is also an urgent need for more specialised accommodation, particularly in the inner city areas, where disabled residents often have to live several floors up in unsuitable private rented sector, or even local authority accommodation. Therefore, it really does seem that, with the demand as it is at the moment and with the supply not being able to keep up with it, as the noble Viscount said, to take a great deal more out of the pool for the disabled, which is what would happen if there were the right to buy in these categories, would be a great mistake.
Although I know the Minister said that he would take this back and look at it, I beg him not to alter the present situation until the existing housing situation has very considerably altered, and until we know very much more and have more detailed figures before us about housing for the disabled in all parts of the country. I certainly hope that it is in that spirit that the Minister will look at this.
Baroness Lane-Fox: Having heard the Minister's reply and the comments by the noble Viscount, Lord Ingleby, and the noble Baroness, Lady Birk, I should like to say that I am very grateful to the Minister for what he has said. I would be delighted if he would take the matter away and consider it. Before concluding, may I say to the noble Viscount, Lord Ingleby, and to the noble Baroness, Lady Birk, that to my mind it would be a very great shame if we were to look a gift horse in the mouth. Housing for the disabled will definitely be at a disadvantage if we do not take what we are offered now in the way of grants and make the most of it. I beg leve to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Denham: In moving that the House do now resume, I think it might be for the convenience of your Lordships who are interested in this Bill if I say that we shall not resume the Committee stage before half-past eight o'clock.
I beg to move that the House do now resume.
Moved, accordingly, and, on Question, Motion agreed to.
House resumed.

Dogs (Northern Ireland) Order 1983
7.31 p.m.
The Minister of State, Northern Ireland Office (The Earl of Gowrie)The Minister of State, Northern Ireland Office (The Earl of Gowrie) rose to move, That the draft order laid before the House on 17th March be approved.
The noble Earl said: My Lords, the Dogs Order is designed exclusively to meet the special needs of Northern Ireland in relation to dog control. In Northern Ireland the problems caused by uncontrolled dogs are separate and much more serious than in the rest of the United Kingdom and were recognised as being so by the United Kingdom Working Party on Dogs in 1976. The extent of these problems makes it necessary to seek separate solutions in Northern Ireland. The order amends and restates the legislation governing the licensing and control of dogs in Northern Ireland and in certain instances brings Northern Ireland law into line with law in Great Britain.
In the Province there has been a great increase in the number of stray dogs aggravated by civil unrest and resultant movements of population as well as by the more usual phenomenon of urban redevelopment. Attacks on people and livestock are all too frequent with some 600 attacks on people and 820 on livestock being reported to the police in 1980 and, of course, many more go unreported. The magnitude of the problem is such that in Belfast hospitals alone last year nearly 2,000 people were treated for injuries caused by dogs. Old people and children are particularly vulnerable.
Attacks on livestock cause not only terrible suffering to animals (often ewes heavy in lamb) but cost the farming community an estimated £350,000 a year. Some farmers, especially those on the edge of large towns, have been forced to abandon sheep farming and others have been discouraged from expanding flocks. This is undermining a potentially very

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profitable sector of Northern Ireland agriculture. In addition stray dogs frequently cause traffic hazards, foul pavements and are a general nuisance. Perhaps more ominously, they can get in the way of the security forces while these are engaged on operations.
In recent years the police have been fully engaged in combating serious crime and terrorism in the Province and this has prevented the chief constable from giving as high a priority as he would wish to enforcing existing legislation on licensing. For example, the number of dogs licensed have fallen from 120,000 in the 1950s to only 45,000 in 1981. We believe that less than one-third of dogs owned in Northern Ireland are licensed.
The proposals in the order would relieve the police of the burden of dog control functions by transferring that responsibility to district councils. It is hoped that this, together with the other new measures proposed, will reduce the number of stray dogs and ensure the licensing and effective control of all other dogs throughout the Province.
The proposals are based largely on the recommendations of the United Kingdom Working Party Report on Dogs—I notice an admirable slip in my brief which describes that distinguished body as the "United Kingdom Worming Party". The proposals are based on the United Kingdom Working Party Report on Dogs, taking due account of the points made in the extensive and wide ranging consultations with the many interests involved. The Northern Ireland Committee of Members of Parliament also debated the order and their views are reflected in the version before your Lordships this evening.
I will now deal with some of the main proposals in the order. In relation to licensing it was originally proposed that licences would be issued through post offices with all revenue being channelled into a central dog fund operated by the Department of Agriculture and subsequently reallocated to district councils. Following the Northern Ireland Committee debate it was decided to transfer direct responsibility for licensing to district councils. Under this new arrangement, which has been warmly welcomed by the Association of Local Authorities of Northern Ireland, district councils would be responsible for arranging the issue of licences and the collection of licence revenue either directly from their own offices or, if they so wish, through other agencies such as the Post Office. In addition, councils will be responsible for operating the enforcement of licensing and collection of stray dogs.
The order provides for an increased licence fee of £5 which would cover part of the cost of the scheme with the remainder being met initially from the district rates. It is intended that the rates contribution will eventually be phased out and the scheme become self-supporting. The order also provides that a licence must be obtained before a person takes possession of a dog and it is hoped that this will make prospective dog owners think carefully about taking on the responsibility of dog ownership and discourage the acquisition of dogs on impulse.
Provision has been made for a half-rate licence fee for those people over 65 living alone, since in many
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instances such people rely on a dog for companionship. The case for any extension beyond this was carefully considered but it was concluded that there was no justification for extending the concession. The traditional exemption in relation to guide dogs for the blind will continue.
We have also considered those who have good reasons for keeping a number of dogs on their premises. We provide for a block licence in Article 8 to cover this group. That will be available at a cost of £12·50 to breeders who keep on the same premises three or more unsterilised bitches any of which is used for breeding, and to owners who keep on the same premises three or more dogs of either sex which are registered with the Kennel Club or other prescribed registering organisations covering, say, sporting dogs or greyhounds.
The block licence will also be available to operators of registered guard dog kennels who keep not less that three dogs which are used as guard dogs elsewhere. District councils will be responsible for registration of guard dog kennels and breeding establishments. These provisions are similar to those in Great Britain in the Guard Dogs Act 1975 and the Breeding of Dogs Act 1973. However, given the present security situation in Northern Ireland, it is not proposed to introduce immediately that main provision of the Great Britain Guard Dogs Act that a handler should be on premises where a guard dog is used. In the case of breeding establishments, the order would close certain loopholes in the Great Britain Breeding of Dogs Act which were highlighted by the Working Party Report in 1976.
The order also provides powers whereby dogs must be kept on a lead in designated pedestrian precincts and on land where livestock are present. This power may be extended in the future if the need for it becomes apparent. It also provides a penalty for a dog attacking a person, in addition to the penalty for worrying livestock. The order would bring Northern Ireland law into line with that in Great Britain in so far as shooting a dog which is worrying, about to worry or has been worrying livestock is concerned. Provision is also included for a fixed penalty procedure for certain offences under the order, for offences under the Control of Greyhounds Act (Northern Ireland) 1950 and for fouling offences where by-laws have been made under the Local Government Act (Northern Ireland) 1972.
There has been a sustained campaign from many interests over the years seeking more effective dog control legislation in Northern Ireland. We hope that this new response, which is designed to encourage responsible dog ownerships, will provide a solution for the serious dog control problems in the Province. I must reiterate that the dogs order is tailored to a specific local situation in Northern Ireland and the Government have no plans to introduce similar dog control legislation into Great Britain. The Northern Ireland Dogs Order should not therefore be seen as a precedent. I beg to move.
Moved, That the draft order laid before the House on 17th March be approved.—(The Earl of Gowrie.)
7.43 p.m.
Lord Underhill: My Lords, I wish to thank the noble Earl, Lord Gowrie, for explaining this order; but I am certain that he will appreciate that a number of points arise, both as clarification and as comment on the various articles. We recognise right at the outset that there are special circumstances in Northern Ireland in this matter but that does not mean that we should automatically let orders go through without seeking views and clarification on a number of points. It is recognised, as the Minister has said, that the problem of stray dogs in Northern Ireland is more serious than that in Great Britain. But the problem still exists in Great Britain; it is a serious problem here also. It is also recognised that the Northern Ireland legislation need not always be the same as that for the rest of the United Kingdom, but any differences must be justified, and there are a few points on which I believe there is a need for justification. I shall elaborate on these in due course.
It has been emphasised that many of the proposals are based on the recommendations of the working party which reported in 1976. I, and I am sure other noble Lords, will await with interest the comments which I feel certain my noble friend Lord Houghton of Sowerby will be making, as he was so closely associated with that review. I also appreciate that the matter was fully discussed in the Northern Ireland Committee, the report of which I read with considerable interest, but the order consists of 56 articles, some of which are, in effect, introducing primary legislation. This is only made possible in the order because of the situation that we have of direct rule with regard to Northern Ireland.
Although the Minister has emphasised that parts of the order will bring Northern Ireland into line with the rest of the United Kingdom, some of the measures in the order could well be adapted to Great Britain as well. Why have the Government not decided to introduce a Bill with some of these points which are not at present in Great Britain legislation to cover the whole of the United Kingdom, albeit with some sections primarily devoted to Northern Ireland, where that is necessary? This would have enabled various clauses to be considered in detail and amendments could have been made, as the House might desire. As it is, we have an order of 56 articles which we have to accept as it stands. The practice so far as these Benches are concerned is that we do not oppose an order which has been approved by the other place.
Generally, we support many of the provisions to meet the serious problem in Northern Ireland; but some of the other points in the order are questionable, and others need clarification. We first of all welcome the proposal that the responsibility for dog control shall be passed from the RUC to the district councils. I must assume that, although the district councils are to be encouraged to appoint dog wardens, the RUC will still have a part to play as part of its normal law enforcement duty.
I am certain that noble Lords will have noted what the Minister said with regard to the substantial drop in the number of licences taken out in recent years. I do not have any figures, but I am certain that the number of dogs unlicensed in Great Britain would also be seen
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to be a serious problem if we looked at the registration and licensing of dogs. Why is there such under-licensing of dogs at present? It is not because of the fee, which is 30p in Northern Ireland and 37½p in Great Britain. We all know that the licence fee in no way covers even the cost of collection. That is generally recognised throughout the whole of the United Kingdom. As the noble Lord indicated, the order proposes an important change in the cost of the dog licence: an increase to £5. The Government argument is that this will lead to there being fewer stray dogs about. But will it? It may well be that an increased fee will cause some people to think very seriously about having a dog, but bitches will have litters. One has to decide whether an increased fee will at the end of the day lead to fewer or more strays.
We also know that, generally speaking, living standards are lower in Northern Ireland than in other parts of the United Kingdom, for various reasons. A £5 fee will hit many poorer people. I am certain that there are poor families in Northern Ireland, as there are in England, Wales and Scotland, who have a dog as a loyal companion and sometimes it is their only joy. I am certain that this will apply to many families in Northern Ireland. The Minister of State, Mr. Adam Butler, in the other place, stressed that the licence fee will be only 10p per week. We so often hear that when a sum is calculated as a weekly charge it is only a small amount. That is argued for one increase after another. But one has to consider the aggregate. Article 31, paragraph (1), also provides that regulations may prescribe and regulate the wearing of collars with the name and address of the owner, which may in addition be another method of identification of the dog. That may be desirable, but this will be an additional cost over and above the £5 fee. It will be quite a burden on many of the poorer people in Northern Ireland society.
Admittedly, as the Minister has outlined, the order recognises that the increase will cause some hardship, and persons aged 65 and over who are living at home will get a rebate and pay at only half the rate. But the £5 will be a hardship to many poorer families, to the unemployed and to those on supplementary benefit. I hope that it will not be said—I am certain that the Minister will not say this—that such persons should not have a dog, because in many cases it is a great friend and a comfort to them.
The order provides that these persons who want a rebate will have to apply to the district council for the concession. It is not clear from the order whether a personal visit will be necessary. At the Committee stage in the other place the Minister said, in justification for the department giving this power to the district councils—which I welcome—if application had to be made to the department, that would mean that people might have to make long journeys, perhaps to Belfast, and would have to produce identification so that their eligibility could be established.
It is not certain whether or not the applications that will have to be made to the district councils will have to include the identification of the applicants. It is said that giving the matter to the district councils to handle will mean that registers will be available whereby a simple check can be made on whether a person is living alone and so comes within the category for a rebate. I assume that the reference there is to the

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electoral registers. I understand that in Northern Ireland, electoral registers are kept in post offices, as is the case in other parts of the United Kingdom.
I should like to ask why cannot application be made either by post, on a prescribed form, or at post offices? I would say that preferably application ought to be made at post offices, which would avoid people having to undertake journeys, and it would be easy for a local post office to check the identity of an applicant. Since I am sure that a post office will keep a register of electors, there should be no problem at all in checking whether the applicant lives alone. I make the suggestion in order to avoid inconvenience, since we are considering here persons who must be at least 65 years of age, and who live alone.
The point leads me to the method of payment of the licence fee. As the noble Earl, Lord Gowrie, has said, the original intention was that payment could be made through any of the 380 local post offices. He has now indicated that district councils have welcomed the fact that they will be able to decide whether applications for licences should be made direct to their offices, or through some other agency, which might be the post offices. I should like to query the position in this respect. If a district council insists that an application for a licence must be made at its office, there will be considerable inconvenience. There could be a delay through the post—and I shall come to this very important matter in a moment—or people could spend a lot of time travelling; and we must bear in mind that many of the applicants will be older people.
Another article in the order provides that a person shall not acquire a dog without first obtaining a licence; and yet another article provides that a person shall not sell or give a dog unless a licence is produced. Those provisions seem to me to be eminently sensible. But what is their practical effect when considered together with the question of obtaining a licence? Let us assume that a person visits a pet shop, a dog pound, or even a friend, and sees a dog that he likes. He cannot take it away because he does not have a licence. Either there will be some days' delay while the licence application is dealt with through the post, or the person has to make a journey, perhaps of some miles, to a district council office. It would be much better if the licence application could be made at the local post office. The applicant could get there and back very quickly.
I am certain that people in Northern Ireland are no different from my own sons and daughters who normally acquire dogs through dog pounds. At a dog pound you can see the dog which you like, and see, too, whether the dog likes you. But a person will not be able to take a dog away from a pound because he must produce a licence. Therefore the method of payment of the licence fee is a very important question, and perhaps the noble Earl will comment upon it.
Article 8 provides that there shall be a block licence costing £12·50 where there are three or more animals. I should like to ask how is the figure justified. I assume that I am reading the order correctly. If I am not, no doubt the noble Earl will put me right. Let us suppose that an establishment has 25 dogs. How can a licence fee which works out at only 50p for each of the dogs be justified? There may be kennels with hounds, or guard
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dog establishments. Such places will have to have a licence; but, presumably, on the basis of Article 8, the cost per dog would be much lower than it would be for a person who might have only two dogs at home.
One argument put forward for the amount of the fee is that it should cover the cost of collection, but that could be achieved by perhaps a doubling of the present fee. Until now the costs of administration in the issue of licences have been met by the Exchequer throughout the United Kingdom; that is, by the taxpayers. Now Northern Ireland is to be treated entirely differently from the rest of the United Kingdom.
The argument is also advanced that the cost of the dog control schemes, including the appointment of wardens, should eventually be met from the amount of the licence fee. I would ask, why? In effect, this is a tax on dog owners. Is it fair that those people who treat their dogs properly and keep them under proper control, and whose dogs are in no way a nuisance, should have to contribute towards the cost of controlling those dogs which might be committing a nuisance? Surely, the control of dogs benefits the whole of the community; and, as is the case with other nuisances, the whole of the community should accept full responsibility for the cost. What is being proposed will mean in effect assigning a particular tax to a particular purpose. As noble Lords know, I deal very much with transport matters, and I have always strongly opposed the idea that taxation of cars and petrol should be assigned to a particular purpose. In this case—admittedly a minor one—it would be a tax for a particular purpose.
During a debate in the other place the question was asked whether a person who takes a dog from the Irish Republic or Great Britain to Northern Ireland as a temporary visitor will be covered. I cannot see that a real answer was given to the question, except that when the matter was raised again on another occasion in the other place the Minister said:
"I hope that my hon. Friend will visit Belfast and, by all means, he may bring his dog".—[Official Report, Commons, 21/4/83; col. 473.]
I should like to ask a question arising from that. Article 6(1) refers to licences being issued to residents in the area of the particular district council. What is meant by the word "resident"? Will it include a person who is visiting Northern Ireland from Great Britain for a period of months, and who takes his dog with him, as the Minister said he hoped might happen? If a person moves from one local authority area to another, will he have to re-register the licence in order to cover the new area in which he is resident?
Article 40 makes it mandatory on a district council to establish dog pounds and appoint officers to carry out enforcement. What will be the situation if a district council receives a fairly substantial revenue—far in excess of the cost of collection—and does nothing, or very little, with regard to the appointment of officers or wardens, or in the way of enforcement? Is that a matter which will be dealt with by the Ministers concerned?
There are a few other specific questions which I should like to ask of the noble Earl, mainly for the purpose of clarification. Article 5 lists exemptions from licences. Under Article 5(e) the exemptions include any dog used for police purposes. There is no reference to any dogs which may be used by the armed

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services in Northern Ireland—and I presume that they do use dogs. Should such dogs also be exempted, or has that matter been overlooked?
Article 6(3) does not lay down the period of the licence. It will be for a period which will subsequently be prescribed. The Minister has said in another place that the intention is that it should be an annual licence. Why is that not mentioned in the order? There must have been a departmental reason for not stating the actual period. If the period were to be three years, or five years, then life would be far different in terms of my criticism of the fee of £5. It looks as though it is intended that the fee should be £5, but that is not prescribed in the order.
Article 7(3) makes provisions for exemptions from payment of the £5 fee. Will these exemptions be additional to those listed in Article 5, and is there any particular reason for this further provision for other possible exemptions?
Article 21(1) provides that an officer may require the production of a dog licence. Under the order the officer is defined as an officer of the district council. Will an officer of the RUC be covered by general police powers, or should a police officer also be included in the order as being empowered to require the production of a dog licence? I have a particular reason for asking this question because under Article 15(2) it is considered necessary that an officer of the RUC be listed among those who may inspect the district council register of licences. So, in one place, that is laid down. In the other place, it is not mentioned.
I am pleased to see in Article 25(1) that the roads where a dog must be under control—this was emphasised by the noble Earl—are confined to pedestrian precincts and that any extension to other roads will be done by affirmative resolution. I find, on the other hand, that any additional exclusions from keeping a dog under control will be done by negative order. I fail to see why one should be affirmative and the other the negative procedure.
Articles 35 to 39 make provision for certain offences to come within the fixed penalty procedure. I see no objection to this. It may be an advantage in many ways. However, it means that apart from the substantial change of the licence fee, additional law is being introduced by an order and not by a Bill. A new fixed penalty offence is introduced by order and not by primary legislation. If there had been a Bill for the United Kingdom relating to this and other matters, the issue could have been dealt with, and, if necessary, amendments made.
I do not know whether guidance will be given to the district councils that will be setting up the dogpounds. I presume that the shelters operated by the Ulster Society for the Prevention of Cruelty to Animals can continue to be used by agreement with the district council as agents for the council. How far will councils be encouraged to find homes for stray dogs? The Department will determine the minimum price at which dogs will be sold. I hope that the emphasis so far as possible will be placed on trying to find decent homes for dogs that are controllable.
I am sorry to be quoting a number of these points. However, the order consists of 56 articles, and a number of issues arise. Articles 28 and 29 are
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concerned with attacks on persons and livestock. It is made clear that both shall not apply to a dog while it is being used for police purposes. Should this not also be the position while a dog is being used for guard work? Again, under Article 33, the power to order the destruction of dogs shall not apply when there is an attack by a dog being used as a guarddog or on police duties. In one place, it is emphasised. In the other place, there is no reference at all.
When is it intended that the various provisions shall be brought into force? There are limited provisions that, according to the order, will apparently be brought into force two months after the order is made. There is also the intention, according to the Minister, to monitor the provisions that may require a definition of what is an attack upon a person. This point was stressed in some detail in the Northern Ireland Committee of another place. I was surprised to note that the Minister in the other place was not prepared to make a commitment to come back to Parliament in a year's time. He suggested that there were means available to question Ministers or to raise matters on the floor of the House. I would have thought that, as the order introduces a number of new features, an undertaking would be given that the Minister will report on the monitoring of the entire order—not just the points to which I have referred—if not in one year's time, in two years' time, to see what have been the effects.
While, in general, we support the proposals for control, there are points of criticism that I have emphasised. There is some clarification needed. Above all, it is vital that any control measures should be enforceable. It would be a tragedy if the order was passed and then found at the end of the day to be unenforceable in some parts. It is for that reason that clarification on various points is needed.
8.5 p.m.
Viscount Massereene and Ferrard: My Lords, I was glad to hear my noble friend the Minister of State say that the order would not be regarded as a precedent for bringing in legislation for the rest of the United Kingdom. I hope that his prognostication is right. It is often the case that where we have a precedent in one part of the United Kingdom, we eventually find that a Bill is introduced that covers the rest of the United Kingdom.
I do not know how many dogs there are in Northern Ireland. We have been told that only 45,000 licences are issued. I understand that the dog population is falling drastically throughout the United Kingdom. It rose to its height in 1973 when the figure was 5·83 million but it is now considerably reduced. This follows the education of many owners of dogs and bitches who are having their animals neutered. I understand that, at the beginning of this year, 21 per cent. of the dog population was neutered compared with a figure of 2 per cent. in 1962.
What worries me is how dog wardens—I suppose that is the right name—will be chosen. Have they any qualifications? It is surely a reversal of British law to appoint so-called officers to fine people on the spot. We might as well say that traffic wardens should be able to fine people on the spot. Why should dog

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wardens be able to do this? It seems to me that dog owners will regard this as high-handed.
I agree with much of what is contained in the order, especially the licensing of dogs. However, the effect of the order for old-age pensioners seems to me absurd. It is correct that they have to pay only half the licence fee. But it would save much form filling and administration if they were charged only £2·50 when they buy the licence. Why should they have to pay £5 for a licence and then ask for a rebate? That seems an unnecessary waste of paper and unnecessary form filling. No doubt civil servants like that, but, apart from anything else, it means that the old-age pensioner is wasting a stamp and his time.
I have not read the entire order but I understand that dog owners will be allowed only five days to find a lost dog. In this country the statutory period is seven days. I regard five days as too short a time for someone to find his lost dog.
I agree with much that the noble Lord, Lord Underhill, has said about Part IV dealing with a court order for destruction of a dog if the dog attacks a person. That is not qualified. What does an attack on a person mean? Some people, especially those brought up in urban areas, are frightened of dogs, almost to the extent that if a dog came up and sniffed them they would say that they had been attacked. There appears to be no qualification of "attack". There must presumably be a fair amount of physical damage to the person. I should like to have the situation clarified a little more.
A dog may be defending his master or his mistress from a criminal. The dog may perhaps be defending his mistress from a rapist. Because a dog attacks a criminal, is it to be destroyed? I know that in this country the law favours criminals to a very great degree, but surely not in this case. As we know, there are a great number of people who dislike dogs, and I am sure they would make every excuse to have a dog destroyed and to say that a dog attacked them.
I do not want to say a great deal more because much of what I was going to say has already been said. However, I quite agree that in urban areas too many dogs do cause a problem, especially large dogs. As regards dogs in public places, I would like the expression "public places" defined. For example, a park in a big city is a public place, but will dogs be debarred from that? I should like to know the answer. If the owner of a dog in an urban area has only a flat or a small house—which will be the situation in the majority of cases—and he does not have a garden, how will he exercise his dog? He dare not take it out on the pavement because it might foul the pavement. If he takes it on to the main road he and the dog might be knocked over. There are two or three matters like that which I would like to have defined.
As regards old-age pensioners, I understand—and this applies not to Northern Ireland only but to the whole of the United Kingdom—that there are now 10 million OAPs, which is a very big lobby when it comes to the electorate. If this order is followed in the United Kingdom it will encounter a lot of snags. It will be very unpopular legislation. I agree that one has to be very firm when it comes to the killing of sheep and the
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chasing of livestock. But we must remember that dog owners overall throughout the United Kingdom contribute a great deal to the economy. I understand that the Inland Revenue collects £3 million in VAT alone from dog owners. So I would advise the Government that, if they introduce this legislation for the whole of the United Kingdom—as no doubt they will—they should tread warily regarding dog owners, who comprise quite a considerable section of the population.
I understand that Professor Ketcher has said that dogs are very good for the health of human beings, especially for old people. I understand that he has carried out some experiments and found that if somebody is stroking or patting a dog his blood pressure goes down—though, of course, if the dog bites him it would go up! But it is good for people to have a dog, especially if they are old people who have no relatives and are all alone. In such cases a dog is essential and a great companion. Having said that, I only hope that if this legislation ever comes to the rest of the United Kingdom it will not follow letter for letter the statutory order now before us.
8.15 p.m.
Lord Houghton of Sowerby: My Lords, the two noble Lords who have spoken have produced a veritable washing list of points to be raised on this draft order, and matters which in other circumstances would occupy the Committee stage of a Bill. I want first to make some comments on procedure. This order really emerges out of the twilight of parliamentary democracy in relation to Northern Ireland. If it applied to any other part of the country it would require an Act of Parliament because this order contains substantive new law, and, as my noble friend Lord Underhill pointed out, there are 56 articles covering 29 pages. This shows the problem of the governance of Northern Ireland by this instrument.
This is a draft order of the Privy Council. It is true, of course, that extensive consultation has taken place between the Secretary of State and Ministers and various interests in Northern Ireland and elsewhere. The caravan has gone around. It went to the Northern Ireland Committee of another place; it went to the Assembly at Stormont; it came back to the Floor of the House of Commons; and it has come here, its final destination. Nowhere along the route has it been possible for this order to be amended in a single particular by vote and decision of the respective instruments of government.
The Government have had experience only this afternoon of what votes may mean in your Lordships' House, in Parliament, where a principle of considerable importance, especially one which has an emotional content, has aroused widespread interest. Similar matters can be raised on this order. This order contains new law which is not at present in the primary law of the realm. It invents new offences, new forms of collecting fines and new punishments in relation to the treatment of dogs. For that reason alone it is very undesirable that matters of this complexity and importance should be dealt with in relation to one part of the United Kingdom not requiring legislation, instead of bringing a Bill before Parliament in the normal way.

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This order is treated as delegated legislation, subordinate legislation. It is also relegated legislation, because it is the Cinderella of our parliamentary procedure. In another place the Standing Orders give this order one and a half hours after ten o'clock: that is its normal place in the parliamentary day. In your Lordships' House it is brought in during the supper interval, as if we were engaged to drown the clatter of feeding time. I hope noble Lords who are having their supper will get a message from us now that they need not hurry over their meal because the Committee stage of the Housing and Building Control Bill cannot be resumed at 8.30. I am glad to be assured by the Government Chief Whip that I need not feel harassed by the clock. Therefore, while, in another place, instead of an hour and a half they managed, by the fluke of business, to have three hours, in your Lordships' House, by representations to a reasonable Chief Whip for the Government, we are going to have what time we need on this draft order. So we can all sit back and relax, and send the message to the supper house to tell their Lordships that they can take time over their coffee.
The noble Earl, Lord Gowrie, has been at pains to say that this, of course, is an order specially for the conditions in Northern Ireland, which I am sure is true, and that it is not intended to introduce anything like this in the rest of the United Kingdom. But for that judgment to some extent he relies upon what the working party said in 1976 about differences in Northern Ireland. I think that if something is to be introduced for Northern Ireland alone, containing the important provisions of this draft order, some justification for doing that specially for Northern Ireland, as distinct from the rest of the United Kingdom, has to be advanced for our consideration.
I believe that the conditions in Northern Ireland are certainly different from those in the rest of the United Kingdom. It would be very surprising were it not so. But are the differences of degree, not of principle? The question is whether some of the contents of this order are justified to deal with differences in degree.
The Government have been very obstinate in saying that they do not intend to apply the recommendations of the working party to the rest of the United Kingdom. Their record over the last 12 or 18 months has been quite deplorable in this regard. They allowed a Private Member's Bill in another place, introduced by Mr. Aspinwall, to be the victim of a procedural ploy. The Government resisted the attempt in your Lordships' House to introduce on a voluntary basis into the Local Government (Miscellaneous Provisions) Bill some provisions for better dog control. But no, the Government were so keen on sex shops that they had no time and no room to deal with dogs. I believe that the Government should have introduced a substantive law into the United Kingdom as a whole and should then have introduced the marginal differences to meet the special circumstances of Northern Ireland.
The Minister has said that the working party of 1976 drew attention to the differences in Northern Ireland. What did they say? In paragraph 2.7 they said:
"Sheep worrying is a serious problem and we accept that special measures might be necessary there".
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That was a reference to Northern Ireland. Then in paragraph 17.4 they said:
"Sheep worrying in Northern Ireland has reached such proportions that the Northern Ireland authority might wish to strengthen its own laws on livestock worrying… beyond the existing limits which the working party find acceptable for England and Wales".
So their approach to this was that they had recommendations to make for England and Wales, but they believed that Northern Ireland would need to go further into dog control than they were recommending for the rest of the country.
What the Government have done is to go against the context of the report of the working party and to do it the other way round. They have introduced a substantive law into Northern Ireland, with the declaration that they do not intend to introduce the substantive law anywhere else. I think that that is part of the mischief of the way in which we are having to govern Northern Ireland at the present time.
References have been made to the voluntary schemes which have been introduced by a number of local authorities in England and Wales. But these voluntary schemes have neither teeth nor the capacity for service, because the law has to be changed in England and Wales before they can match up to the recommendations of the working party. No local authority in England and Wales can increase the dog licence fee to pay for anything. Under the 1906 Act no local authority in England and Wales can transfer the control of dogs to local authorities without a change in the law. In fact, it is quite misleading to suggest that the situation has been met in England and Wales by local authorities adopting voluntary schemes. Therefore, my judgment on this is that the procedure is wrong; the approach is mistaken because the working party wanted the substantive law for the rest of the country first, with marginal differences for Northern Ireland.
Now let us look at what the order contains. My noble friend Lord Underhill and the noble Viscount, Lord Massereene and Ferrard, have both raised a number of points, but curiously enough neither of them referred to the fact that a new offence is being created in Northern Ireland—the offence of the stray dog. Under Article 22 of the order it is now an offence—which, on summary conviction, can be punished by a fine of up to £200—if a dog is found straying and not accompanied by its owner or keeper. That is a new crime. At the present time a stray dog can be seized, can be detained, and can be disposed of if it is not claimed within the stiuplated period. The working party never recommended that a straying dog should expose its owner to a fine of up to £200 on summary conviction. Many people can inadvertently become separated from their dogs, to their great distress, and if their straying dog is picked up and taken to the authorities, that can be followed by a prosecution for the dog being allowed to stray.
Another point about the stray dog is that elsewhere the stray dog is one which is straying unaccompanied on a highway or a place of public resort. But under this order the area upon which a dog can be regarded as a stray is extended to cover land which is not that of the owner-occupier who owns the dog or its keeper; in fact, if it is on any land that does not belong to it, so

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to speak, the dog can be regarded as a stray. There is provision in the order for the area of catchment of stray dogs to be extended by further orders under Article 24.
Another provision of the order is that any person who finds a stray dog which is unaccompanied can detain it. Any person can act as a detainer of a dog. He is under no obligation to find the owner; he is under no obligation to get in touch with the owner, even if he knows who it is. He is required to report it to the police or other authority within 24 hours, when it will be collected. The dog can then be dealt with as a stray and the owner, if found, can be fined on summary conviction up to £200.
I will not dwell on the possibilities for mischief and hostility between neighbours to which those conditions could give rise. There is no obligation on the police or other authorities to contact the owner even if they know his name, whereas in the 1906 Act the police cannot destroy a dog without notifying the owner if they find his name on the dog's collar. There seems to be no provision in this order that the police have to do so. I believe that Articles 22, 23 and 24 are more heartless than any previous legislation on this subject, and certainly more harsh than the working party of 1976 recommended.
To make matters worse, the period of detention of the dog is reduced from seven to five days, a point already referred to by the noble Viscount. It is true that this was a recommendation of the working party but there was widespread opposition to this recommendation when it was made. I should have thought that in Northern Ireland with all the social disruption and the possibility of dogs being scattered around, losing their homes and owners, there was a case for the longer rather than the shorter period. I should have thought that in Northern Ireland there was a much stronger case for seven days being allowed before a dog could be destroyed or disposed of, rather than the five days recommended by the working party, which is included in the draft order.
The Royal Society for the Prevention of Cruelty to Animals has given me some details of its own experience of the length of time taken by owners of lost dogs to claim them. These are the particulars for the year 1981 for Birmingham, Chobham in Surrey, Bradford and York. The proportion of owners who claimed their dogs on the fifth, sixth, seventh or even the eighth day was 9 per cent. in York, 20 per cent. in Chobham and 16 per cent. in Birmingham. That is a very high proportion of claimants of lost dogs in the period after the fifth day. A point I mentioned to the noble Lord, Lord Cottesloe, is that Battersea Dogs' Home does not keep statistics on the same basis as the RSPCA, and I can only tell your Lordships that there the average time for collecting dogs is three and a half days. That might suggest that dogs are claimed more easily after only a few days in the London area than elsewhere.
I want now to refer to Article 25. Reference has been made to the fact that a dog owner must keep his dog on the lead when taking the dog on any land where livestock are and have the right to be. This was described by the noble Earl, Lord Gowrie, as meaning that a dog owner would have to take his dog for a walk on the lead. It is very difficult to know whether on land
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where there are public footpaths it would be necessary to keep a dog on the lead even though there were no cattle in the field. I certainly feel that some of these provisions in relation to Northern Ireland need to be carefully monitored to bring out how they are going to work, especially in the unsympathetic atmosphere which appears to be created by this draft order.
When we come to the destruction of dogs the provisions of Article 33(1) are quite monstrous:
"Where it appears to a court that a dog has—

(a) attacked any person; or

(b) attacked or killed livestock"

the court shall impose a mandatory penalty of destruction. There is no provision in Article 33(1) for an order to be made by the court in those circumstances for the dog to be kept under proper control. The court must give an order for destruction. Then, the question is: what is an attack? The noble Viscount, Lord Massereene and Ferrard, mentioned this a few moments ago. The word "attack" in relation to a person is covered by Article 2(2)(b) and may mean:
"behaving in such a manner so as to cause a person apprehension of being attacked".
That is what may be an attack; and if the court are satisfied that the dog behaved in such a manner as to cause a person apprehension of being attacked, the court must order its destruction. There is a right of appeal in paragraph (7) of Article 33 but that applies only if there is an owner to make an appeal on behalf of the dog. Otherwise, when the court are satisfied there is no more to be said and down that dog will go. That is much too harsh.
The 1871 Act which is repealed by this order makes provision for an order to be made for proper control in all cases but in Northern Ireland they are going to distinguish between a mandatory order for destruction in the case of an attack on persons or animals; and in Article 2(2)(a) there is provision for what is to happen to a dog that chases livestock.
I will quote now from Article 33(1):
"Where it appears to a court that a dog has chased livestock in such a way as might reasonably have been expected to cause injury or suffering to the livestock or to result in financial loss to the owner of the livestock the court shall—

(a) make an order directing the dog to be destroyed; or

(b) make an order directing the dog to be kept confined in a building, shed, yard or other enclosure from which it cannot escape".

So there is a less harsh punishment for the dog that is chasing livestock than for the dog which makes as if it is attacking a human being. These are important matters of substantive law and it is quite undesirable that some of these things should be introduced in an order relating to Northern Ireland.
I finish by saying that, taking the draft order as a whole, its foundations were laid in the report of the working party and in my own report in the same year, but happily our recommendations coincided. Both committees came to similar conclusions and were for discipline developed by a helpful and sympathetic dog warden system under which dog owners could feel that their companions had a respected place in society and would be protected as well as disciplined by the new and enlightened form of dog control. There is nothing at all like that in this order. Dog owners in Northern Ireland are being asked to pay £5, not for any service to the dog owners. There may be service to the

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community and to the authority but the £5 is not for service to dog owners. There is little or nothing in this order which is a service to the dog owners.
Personally, I feel that the order contains features which I, for one, would have strongly to oppose if they were being applied to this country. I am very sorry that the framework of a scheme of discipline of dogs which I described with a proper warden system, has been distorted and turned into the harsh set of proposals for Northern Ireland, a number of which I find extremely distasteful.
8.40 p.m.
The Earl of Gowrie: My Lords, the noble Lord, Lord Houghton of Sowerby, with his very great experience, not only of the working party but also of the whole issue of legislation affecting animals in this country, has made a powerful case with which the Government can agree: the case being that legislation of this kind in respect of Northern Ireland would be inappropriate in the rest of the United Kingdom. In fact, there is no substantive difference between the noble Lord and myself on that.
He mentioned at the beginning of his speech, in a sharp phrase which I noted down—and I am quoting him—"the mischief of the way in which we are having to govern Northern Ireland at the present time". There, again, I do not find myself very much at odds with the noble Lord, in spite of his criticisms of the way we are proceeding in respect of this order. I would refer him to our White Paper which is called Northern Ireland—A Framework for Devolution, in which we acknowledge that the special interests and circumstances in Northern Ireland would be best catered for by elected representatives within Northern Ireland itself.
It is also important to recognise that legislation of this kind is very much responsive legislation. It is responsive to a particular set of difficulties and a particular set of requests by people in Northern Ireland that the Government should tackle them. We are proceeding by direct rule, as we regret, and, as I say each year as we renew it, which we do, that is the only method available to us. Therefore, I do not think that it is fair for the noble Lord, Lord Houghton, to suggest that the Govenment are, as it were, somehow legislating in a high-handed, unresponsive or undemocratic way, because this matter is governed by the limitations of the direct rule system which they are trying so hard to change in other aspects of policy.
There is another point I should like to make before coming to some of the substantive questions asked me. I would address it, as well as of course to the whole House, specifically to the noble Lords, Lord Houghton and Lord Underhill, who I think gave some suggestion that Northern Ireland should not be setting what they might see as a pattern and precedent for the rest of the United Kingdom in this regard. With respect to him, I think that the noble Lord, Lord Underhill, was a little more ambivalent here than the noble Lord, Lord Houghton, because he acknowledged that there might be differences in Northern Ireland, and as a spokesman on Northern Ireland affairs he is of course in a good position to judge that.
What perhaps both noble Lords are leaving out is the immense problem faced by the police in Northern
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Ireland. This is not the time to go into it, but we all know the kind of activities in which the police are engaged in Northern Ireland. No one regrets that more than I do as their sponsoring Minister at the present time. Nevertheless, it seems to me only responsible to try to relieve them, if we can, of a severe problem, though a problem which is less severe in kind than many of the problems that they have to deal with on a day-to-day basis.
We are not putting the police out of the picture altogether. Obviously in disputed issues, or where questions of criminal law are involved, the police will still be in play; but we believe that in this way we can perform something of the same function as the traffic warden system in Britain, when, as your Lordships remember, problems of traffic control were not taken out of the hands of the police but an extra body was added in order to try to relieve them for other important tasks.
Those are the sort of philosophical or Second Reading points about the order that I should like to make. May I now turn to some of the specific questions which have been put to me. The noble Lord, Lord Underhill, asked about district councils in respect of the exemption for the elderly. The councils have to satisfy themselves that the person is over 65 and is living alone; and it will also be for them to decide whether or not to use the Post Office as an agent for collection here. If I might again revert to the more general political point, many people in Northern Ireland have asked that we should give back more powers and more responsibilities to district councils, and they have very much welcomed this move.
On the question of the review of the order, of course the position will be monitored. But, as was indicated in another place, we cannot give assurances to bring it before Parliament after any given period of time. Northern Ireland is not noted for reticence on matters which are important to it, and I would think it unlikely that either Northern Ireland MPs in another place or Northern Ireland Peers in your Lordships' House, or members of the Assembly or the district councils themselves, would not be monitoring these proposals in the light of how they turned out in practice.
The noble Lord, Lord Underhill, asked me why dog breeders and multi-dog owners should pay less. It was felt desirable to introduce the block licence system for those who had a good reason for keeping a number of dogs. Wherever the line is drawn in relation to multi-dog owners there will be some anomaly. We decided that the block licence should be available for three or more bitches any of which is used for breeding, or three or more dogs registered with a prescribed organisation.
The noble Lord also asked why the draft order does not state that licences should be valid for one year. An annual licence is proposed initially in all cases, but it may be that, as things evolve in the future, licences could be issued for longer periods so as to cut down on administrative costs. Therefore, in the interests of flexibility the duration of the licence will be prescribed in subordinate regulations. I can say to the noble Lord who asked how we could ensure that district councils would use their income under the order for proper purposes that the department will monitor income and expenditure on a countrywide basis through financial

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returns from individual district councils; and over a period of time the department will decide in conjunction with the councils and other interested organisations if adjustments are necessary.
On the issue of the licence fees, I think that licence fee costs should be borne by dog owners to encourage responsible dog ownership. There is always criticism with any increase of fee, but it is an article of conventional wisdom that the dog licence, like other licences, has become wholly uneconomic and, as a result, is something of a problem child where licensing generally is concerned. I do not think that the cost we are proposing is exorbitant even in relation to the economic difficulties faced by the Province, which the noble Lord, Lord Underhill, mentioned.
He asked me when the proposed order would come into operation. The provisions in Articles 28 to 30, which would give farmers greater protection against livestock worrying, will come into operation automatically two months after the order is made. The remaining provisions will be brought into operation by commencement orders. The timing of the implementation will be the subject of further consultations with the Association of Local Authorities of Northern Ireland. Since they are going to have these powers, obviously we want to be closely in touch with them about when the powers are to start being used.
There was the question put to me by the noble Lord about visitors bringing dogs into Northern Ireland. Article 6(1) provides that licences shall be issued by district councils for dogs kept by persons resident in their areas. As the draft order now stands, a short-term visitor to the Province is not exempt from the requirement either to take out a licence for the dog or to pay a licence fee, but there are powers in Article 5(f) to make orders to exempt from the licensing requirement dogs kept by prescribed persons. There are also powers in Article 7(3) to exempt from the payment of licence fees specified persons in specified circumstances. These regulation powers provide the necessary flexibility to deal with dogs belonging to visitors as the need arises. All parts of Northern Ireland are very keen on tourism, which is a major economic factor in the Province and which we wish to see increase as things, we hope, improve. I think that we must rely on the common sense of district councils to apply those provisions reasonably.
The noble Lord, Lord Underhill, asked about exemptions from payment of licence and whether the exemptions in Article 7(3) were in addition to the exemption from the requirement in Article 5(f). This is an additional exemption and it is needed to cover the situation where it is desirable to have a dog registered but, at the same time, to exempt the keeper from payment of licence fee. This provision could cover dogs currently licensed in the rest of the United Kingdom and brought into Northern Ireland for short periods only. So, again, it is a flexible provision. The noble Lord asked me if service dogs were exempt from licensing. Dogs kept by the Army, the Royal Air Force or the prison service would be automatically excluded from licensing by Crown exemption. It is necessary to include a specific exemption—and that is in Article 5(e)—for dogs used for police purposes by the
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Northern Ireland police authority because these may not be covered by the Crown exemption.
The noble Lord, Lord Underhill, asked if the powers of officers under Article 21 to require the production of licences include RUC officers. The straight answer to that is, No. "Officer" in this context means an officer of the district council authorised in writing by the council. As I have said earlier, the RUC have overriding powers in other legislation to enforce the law in relation to criminal offences. This could cover the production of licences if an offence was suspected. On the questions from the noble Lord, Lord Underhill, about offence provisions relating to attacks from dogs, guard dogs are not exempted directly in Articles 28 and 29 of the draft order but there is power to exempt dogs used for such other purposes as the department may by order specify and these orders would include guard dogs used by the forces and by the prison service. They could also exempt guard dogs used by private individuals and registered guard-dog kennels. I must tell the House that no decision has yet been taken on the latter aspect. I shall of course attend to the argument that the noble Lord made.
My noble friend Lord Massereene wondered how many dogs there were in Northern Ireland. We have not done a census but the varous interests with whom we discussed the legislation believe the figure to be in the region of 170,000. He asked, too, about the fixed-penalty system. This was also criticised by the noble Lord, Lord Houghton. It is our judgment that the fixed-penalty system will not, per se, antagonise the public, who will be given an opportunity to avoid the inconvenience of a court appearance by the payment of a penalty. Therefore, the fixed-penalty system has advantages in reducing the burden on the rather overworked court service. We do not envisage that the dog control officers' main function will be the handing out of fixed-penalty tickets. We hope that he or she will also be playing a more positive role in advising and educating dog owners. My noble friend Lord Massereene and Ferrard asked about the selection of dog wardens. The district councils, I am sure, will take great care in the selection of wardens and the powers which are laid down are, on our judgment, the minimum necessary to deal with the specially serious problems in Northern Ireland which I outlined at the beginning.
Coming to the speech of the noble Lord, Lord Houghton, I tried at the beginning to deal with some of the points of principle to which he objected. But, on specific issues, he questioned the sharp increase in fines in relation to straying offences and the maximum figure of £200. So many of our discussions over the last 10 years have been dealing with inflation that I would remind your Lordships that £200 is only a little over £40 in 1970 terms; although that may not be much of a consolation if you are fined it.
I would also point out that this is a maximum figure. There would be discretion in the penalties up to that figure. I am reminded that straying is an offence subject to the fixed-penalty procedure and, therefore, it is likely that the majority of offending dog owners would opt to pay the £10 fixed penalty to avoid the inconvenience of a court appearance and the possible risk of a £200 fine. Straying between sunset and sunrise is presently an offence; and there is a fine of £20. In

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Northern Ireland, between sunset and sunrise a dog must be confined in a building or shed and so on or effectively secured or accompanied by and under the control of the owner or other person. Straying, under existing legislation in Northern Ireland, is not restricted to a place of public resort.
Both my noble friend Lord Massereene and the noble Lord, Lord Houghton, asked whether five days were long enough to keep a dog in the pound to be claimed by its owner. It would seem to me that any caring, conscientious and responsible dog owner of the kind that we are anxious to encourage would make inquiries about a missing dog long before five days had passed. It may console both noble Lords if I say that the five-day period is a minimum period. It can be extended at the discretion of the councils and it is expected that maximum publicity will be given in each area to the location of pounds so that the conscientious dog owner will be able to trace his dog within that period.
The noble Lord, Lord Houghton, commented that in Article 33(1) the dog, as opposed to the owner, is put on trial and punished. That is true. But it is likely that in the case of attacks by dogs, the sanctions in Article 29 would also be invoked against the owner and he could be subject to a £200 maximum fine in addition to the deprivation of the dog if a destruction order were imposed. The powers to penalise dogs are not new, as I think the noble Lord acknowledged. Under the 1971 Dogs Act, courts could direct destruction or control orders against dogs which were proven to be dangerous. What is new in the Northern Ireland order is that, in the case of a dog attacking a person, the owner is guilty of an offence and liable to a fine. As the noble Lord acknowledged, there is an appeal if there is an owner. The court of appeal will also have the normal powers to confirm or quash the decisions of the original court or refer them back to that court; and there are no greater powers of discretion for the court of appeal between paragraphs 1 and 2.
Finally, both my noble friend and the noble Lord, Lord Houghton, questioned the mandatory powers of courts in Paragraph (1) of Article 33 to order the destruction of a dog which has attacked any person or behaved in such a manner as to cause a person apprehension of being attacked or who had attacked or killed livestock. There are mandatory powers in existing legislation to order the destruction of dogs where sheep are injured and it is simply proposed that under the order other livestock and, indeed, human beings should enjoy the same protection. It would seem to me that in the case of human beings, an attack might reasonably be avoided by the ingenuity of the person.
It is necessary to include the concept of putting in "fear" in the definition of "attack" but the courts will have to be satisfied that, in the circumstances, the dog had behaved in such a manner as to put a person in fear of actual attack. For example, the courts would have to be confident that the person was indeed fortunate to have escaped injury. I do not think that that would cover a nervous townsman or townswoman having his or her ankles sniffed at. The wording obviously allows the court considerable discretion and, as in all this legislation, we must trust the common sense and flexibility and also (I might close
890
by saying) the well-known affection for dogs in Northern Ireland which we are liable to find in the courts as elsewhere there. I beg to move.
On Question, Motion agreed to.

Housing and Building Control Bill
9 p.m.
House again in Committee.
Clause 3 [Further periods to count for qualification and discount]:
Lord Bellwin Lord Bellwin moved Amendment No. 11:
Page, line 20, at end insert—
("(1A) In subsection (1) of section 7 of the 1980 Act (discounts) for the words "50 per cent.") there shall be substituted the words "60 per cent.".")
The noble Lord said: In speaking to this amendment, I also want to speak to Amendments Nos. 11, 13, 14 and 15. As your Lordships will know, tenants who buy their homes under the right to buy are entitled to a discount off the open market valuation. The discount is 33 per cent. for those with the basic three-year qualification entitling them to buy; it rises by increments of 1 per cent. for each year of tenancy in excess of three, to a maximum of 50 per cent. in respect of 20 or more years' tenancy. We have concluded that this discount scheme does not adequately recognise the position of one particular group of tenants. These are tenants whose period of tenancy stretches over more than 20 years. At present they get no discount in respect of their periods of tenancy over and above the 20–year mark.
In the nature of the case, we are talking here about tenants who will generally be well on in their working lives—often approaching retirement, if not indeed already retired. For such tenants, the amount of their discount entitlement may be crucial to their decision whether to buy. Tenants in this position are, of course, entitled to a mortgage under the right to buy provision. But the amount of their entitlement is related to their income; and the multiplier which is applied for this purpose reduces for tenants over the age of 60. This reflects normal building society practice. Consequently, tenants in this age bracket may well not be able to raise a mortgage for the full amount of the purchase price, even with a 50 per cent. discount.
We have concluded that the discount scale should be extended to make the right to buy more of a reality for tenants in this position. The amendment will extend the discount scale from a maximum of 50 per cent. after 20 years' to a maximum of 60 per cent. after 30 years' tenancy. Parliament has already accepted the principle of discount increasing by 1 per cent. a year between three and 20 years' tenancy. There is no reason in equity or logic why years 20 to 30 as a tenant should not be treated in exactly the same way for discount purposes as years three to 20.
Discounts will still be subject to the restrictions which apply at present. The most important of these is the "cost floor" rule, which provides, in broad terms, that discount cannot reduce the selling price below costs of construction, improvement or repair incurred since 1st April 1974. This rule will ensure that the extension of the discount scale to 60 per cent. will not

891
require authorities to sell houses at prices below the historic cost of provision.
The new discount scale, if approved, will apply to fresh right to buy applications made after the Bill comes into force, and to current applications where the tenant has not yet, at the time the Bill comes into force, received his "offer notice" under Section 10 of the 1980 Act. That is the effect of the second, third and fourth of this group of amendments.
Tenants of more than 20 years' standing, who are currently buying their homes and who receive a Section 10 offer notice before the new provision comes into force, may wish at that time to consider whether to withdraw their present applications and reapply, in order to qualify for the increased discount. However, they will need to bear in mind that, if they do so, their homes will be revalued as at the date of their fresh application; and their mortgage entitlement may be affected if their personal circumstances have changed; for instance, as a result of retirement.
I believe this extension of the right to buy discount scheme to be entirely justifiable. Tenants who have been tenants for more than 20 years, and have been paying rent over such a period, have already made a very substantial contribution to their housing costs: in some cases, they will actually have paid more than it cost to provide their homes. Their counterparts in the private sector, who have been making mortgage repayments over a similar period, will now have paid off the mortgage and will be able to look forward to reduced housing costs as their income perhaps declines in later life. This amendment will enable more tenants of long standing to buy at a price which takes fair account of their tenancy record and of the resources likely to be available to them. I commend it to your Lordships. I beg to move.
9.5 p.m.
Baroness Birk: Words almost fail me on this amendment. I suppose the next step will be that the Government will be giving houses away with a pound of tea or coffee. It is quite amazing! When the 1980 Act was going through this House, we had a tremendous battle over the discounts, and over the figure of 33 per cent. going up to 50 per cent. Then, suddenly, this Bill is produced, there is no talk in the Bill itself of any increase in the discount and, after going through the Commons, it comes here and on Wednesday of last week an amendment was tabled by the Government, which increased the discount from 50 per cent. to 60 per cent.
If I wanted to be mischievous—and I really do not—my mind might wander to the local elections next week and the possibility of a general election in June. But, no, let us forget that. It cannot possibly have anything to do with that. Nevertheless, here we are with an increase which will, again, reduce the stock and the value of the assets of local authorities. It must also result in a certain amount of inequity. What happens to the person who has already paid a deposit on a house, who will now get a 60 per cent. discount, whereas before this Bill he or his neighbours had 50 per cent? The whole thing is so wrong, from the point of view not only of the tenants who will be treated
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differently, but also of the landlords who are the local authorities.
One would have thought that a 50 per cent., discount after 20 years was enough and could stay for the rest of people's working lives, although the Minister gave us a sob story about people being entitled to more after 30 years. If the Government think that, why did they not think of it before? Nothing else has changed. I do not suppose that we shall get a complete answer, but it would be intriguing to know why, between 24th March and 20th April, there has been an increase of 10 per cent. in the discount.
We opposed the whole principle of the discount when we debated the 1980 Act. To increase the discount is quite outrageous. It means that local authorities will be getting less and less back with which to replenish stock. It is a form of asset stripping which affects the housing stock of local authorities. The Minister might prefer to use a different phrase, but that is exactly what is happening. Instead of receiving what the property is worth, one takes the market price and then gives an enormous discount of 60 per cent. It is absolutely outrageous and quite unacceptable. That is all I need to say at this stage about the amendment. I resist it completely.
Lord Hylton: The noble Lord the Minister and the Committee may recall that in 1980 I thought that the size of the discounts being offered was too large. In those days I sat on the Government Benches. Today I sit on other Benches. I think so even more strongly today. This is a kind of give-away of public assets. What is more, it is not even a fair, or an equal, or a proportional give-away. It is what I would describe as a lottery. Let me take the position of somebody who has been the tenant of a private landlord, or even an owner-occupier, who at some point along the line becomes the tenant of a local authority. All his time as a private tenant does not count, or all his time as an owner-occupier does not count for the purposes of discount. This is pure speculation, favouring those who have been the longest tenants of local authorities or even housing associations. To have this from a Government which proclaim their faith in Victorian values seems to me to be absolutely astounding. I hope the Committtee will resist the amendment.
Lord Bellwin: Clearly there is a wide gulf between us. Just as the noble Baroness, Lady Birk, and the noble Lord, Lord Hylton, feel that they must resist the amendment, I feel just as passionately that it ought to be accepted. Nobody cares tuppence about the people who occupy these homes.
Several noble Lords: No!
Lord Bellwin: Noble Lords always protest whenever I say this, but the fact is that we have been fought every inch of the way. The noble Baroness will go on fighting every inch of the way against the right to buy. The fact is that over half a million people have now exercised their right to buy. People have paid rent for up to 30 years and have nothing at all. We are suggesting that we should give them the right to buy. Again the gulf is wider than ever.
Baroness Birk: The noble Lord said that they have nothing. However, we are discussing an amendment which increases the discount from 50 per cent. to 60 per cent. It is quite ridiculous for the Minister to say that they have nothing. They will have the 50 per cent. discount, anyhow. What we are discussing and arguing about at the moment is that the 50 per cent. should be increased to 60 per cent. That can only be for purely political reasons. Otherwise, let the Minister tell me why this was not in the Bill originally and explained at Second Reading.
Lord Bellwin: The last thing which the noble Baroness should do is to talk about political reasons. Her political theology is totally against the right to buy—all the way down the line. We are 100 miles apart on this. It is a matter of opinion about helping another batch of people, about whom the noble Lords and Baronesses opposite and the noble Lord, Lord Hylton, simply do not want to know. I agree with the noble Baroness about one thing: that there is not much point in saying any more about it.
The Earl of Perth: I wonder whether the noble Lord, Lord Bellwin, can say why he has chosen 60 per cent? Why not 100 per cent?
Lord Bellwin: In order to continue exactly the same ratio of 1 per cent. per year, following on from the 20 to the 30 as goes from the 3 to the 20 at the moment.
The Earl of Perth: If you live for 40 years or more in your home will you get an 80 per cent. discount?
Lord Bellwin: I hear what the noble Earl says.
Lord Evans of Claughton: Although I was out of the Chamber when the discussion started, I want to underline from these Benches that we and, I understand, others are not against the concept of the right to buy. We are concerned about the fact, as the noble Lord, Lord Hylton, rightly suggested, that the granting of discounts is going far too far. It is the level at which the noble Lord is suggesting that discounts should be taken, and the particular time at which this proposal is being made, which we find unacceptable.
9.13 p.m.
On Question, Whether the said amendment (No. 11) shall be agreed to?
Their Lordships divided: Contents, 69; Not-Contents, 44.

DIVISION NO. 3

CONTENTS

Airey Of Abingdon, B.

Cockfield, L.

Auckland, L.

Constantine of Stanmore, L.

Avon, E.

Cork and Orrery, E.

Bathurst, E.

Craigavon, V.

Belhaven and Stenton, L.

Crathorne, L.

Bellwin, L.

Crawshaw, L.

Beloff, L.

Davidson, V.

Belstead, L.

Denham, L. [Teller.]

Boardman, L.

Dormer, L.

Boyd-Carpenter, L.

Eccles, V.

Campbell of Alloway, L.

Elliot of Harwood, B.

Carnegy of Lour, B.

Elton, L.

Cathcart, E.

Faithfull, B.

894

Ferrier, L.

Marshall of Leeds, L.

Fortescue, E.

Massereene and Ferrard, V.

Gardner of Parkes, B.

Mersey, V.

Gisborough, L.

Minto, E.

Glanusk, L.

Molson, L.

Glenarthur, L.

Murton of Lindisfarne, L.

Grantchester, L.

Norfolk, D.

Gridley, L.

Radnor, E.

Grimston of Westbury, L.

Rochdale, V.

Haig, E.

St. Aldwyn, E.

Hailsham of Saint Marylebone, L.

Saint Oswald, L.

Sandford, L.

Lauderdale, E.

Sharples, B.

Lawrence, L.

Skelmersdale, L.

Long, V.

Stodart of Leaston, L.

Lucas of Chilworth, L.

Swinton, E. [Teller.]

Lyell, L.

Thomas of Swynnerton, L.

McFadzean, L.

Trefgarne, L.

Mackay of Clashfern, L.

Vaux of Harrowden, L.

Macleod of Borve, B.

Wakefield of Kendal, L.

Mansfield, E.

Wise, L.

Margadale, L,

Young, B.

NOT-CONTENTS

Balogh, L.

John-Mackay, L.

Birk, B.

Kirkhill, L.

Bishopston, L.

Lovell-Davis, L.

Blease, L.

McIntosh of Haringey, L.

Brockway, L.

Melchett, L.

Brooks of Tremorfa, L.

Milner of Leeds, L.

Chitnis, L.

Perth, E.

Cledwyn of Penrhos, L.

Pitt of Hampstead, L.

Collison, L.

Ponsonby of Shulbrede, L. [Teller.]

Denington, B.

Eldon, E.

Prys-Davies, L.

Evans of Claughton, L.

Raglan, L.

Ewart-Biggs, B.

Ross of Marnock, L.

Fisher of Rednal, B.

Shackleton, L.

Hanworth, V.

Stewart of Alvechurch, B.

Harris of Greenwich, L.

Stewart of Fulham, L.

Hatch of Lusby, L.

Stone, L.

Hirshfield, L.

Strabolgi, L. [Teller.]

Houghton of Sowerby, L.

Taylor of Gryfe, L.

Hylton, L.

Tordoff, L.

Irving of Dartford, L.

Underhill, L.

Jeger, B.

White, B.

Jenkins of Putney, L.

Resolved in the affirmative, and amendment agreed to accordingly.
9.21 p.m.
Lord Bellwin Lord Bellwin moved Amendment No. 12:
Page 3, line 20, at end insert—
("(1B) In subsection (2) of that section after the words "31st March 974" there shall be inserted the words "(or such later date as may be specified in an order made by the Secretary of State)".").
The noble Lord said: The purpose of this amendment is to give the Secretary of State the power to substitute for 31st March 1974 a later date as the cut-off date for the cost floor. The cost floor is a limit on a purchaser's discount entitlement under the right to buy. It is imposed by Section 7(2) of the 1980 Act, which provides that a tenant should not receive discount to which he would otherwise be entitled if that discount would reduce the purchase price below the costs incurred in relation to the dwellinghouse which the Secretary of State has determined as relevant for this purpose. The current determination includes the relevant historic cost of acquiring, constructing or improving the dwellinghouse. Only costs incurred after 31st March 1974 count towards the cost floor, and this cut-off date of 31st March 1974 is written into Section 7(2). Primary legislation would

895
be required to change it. This amendment will give the Secretary of State the power to change the cut-off date by order to such later date as he may specify.
The cost floor provision was included in the Act in order to protect the public purse and to ensure that, in selling, a landlord was not obliged to incur an immediate capital loss as a result of the discount provisions. The cut-off date of 31st March 1974 was chosen for two reasons: first, to help local authorities by removing the need to search records pre-dating local government reorganisation; and, secondly, because movements in costs and prices since that date made it unlikely that costs incurred before then would bite on a tenant's discount entitlement in 1980. In principle, therefore, there is a case for bringing the cut-off date forward from time to time, to reflect continuing movements in costs and prices, thus saving unnecessary work for local authorities in calculating cost floors which will not affect the purchase price.
This amendment will not itself change the cost floor cut-off date; my right honourable friend has not yet reached a decision on the matter. It will merely give him the power to do so by order. This will introduce greater flexibility into the provision, and avoid the delays which might occur if a change of date had to await primary legislation. I therefore ask your Lordships to accept this amendment. I beg to move.
Baroness Fisher of Rednal: I listened to what the noble Lord said, and, with all due respect to the noble Lord, I think that if one did not know anything about housing at all one would still not know anything when he sat down. The noble Lord will correct me if I am wrong, but I was under the impression that, previously, housing authorities would not sell off their properties at any discount lower than the cost of building them. In listening to the noble Lord I was not entirely sure whether that is the fundamental change; that they will be able to sell properties at less than it cost to build them. I am not sure what is meant by the "cost floor date". That is a new one to me. If the noble Lord could help me on that, I would be grateful.
In talking about the help that it will give to local authorities, I am not sure that the noble Lord understands that there will be a difficulty if we keep on changing the rules as we go along. I know from past experience that what upsets tenants in council properties is if someone next door pays a lower rent than they do. That is always a source of conflict in council properties. If we are reaching the stage where someone is having a different kind of discount or help, it will not only cause discontent among people who are purchasing properties but also make it difficult for the local authorities who will constantly have to charge what one might call their sales technique to their clients. I am not sugggesting that local authorities do not want to do their best to sell properties. Most local authorities are now already in full swing selling as many houses as they can. But they are confronted with all manner of difficulties when they have potential buyers who are grumbling about the constant changes.
It might be that because I do not understand about the cost floor date the noble Lord will explain and tell me I am completely wrong. However, as so many local authorities are now spending their housing money and
896
considerably increasing their plans for building more and more houses to let, does it therefore mean these houses that are being built at the higher price will come down to the average discount of what was 30 per cent. to 40 per cent. or will they go into the 60 per cent. range as well? The noble Lord has brought out all sorts of problems and the way he explained the amendment was, in a way, to let us know that it was something simple, but I read between the lines that it is very much more sinister than he says.
Lord Bellwin: Not in the slightest. It is quite straightforward. The point about the percentage discount has nothing whatever to do with it. It is another matter entirely. As I said before, the purpose and effect of the amendment is to give the Secretary of State the power to change the cut-off date to any later date that he may specify without having to change the primary legislation. It may be right that the cut-off date should be changed from time to time to reflect the impact of inflation. As I said earlier, it will save unnecessary work for local authorities in determining cost floors, which will not often bite on discounts. We are currently considering the arguments for such a change.
The amendment will not change the cut-off date but merely give the Secretary of State the power to do so. As the noble Baroness knows, I too am not without a little experience of housing. I do not think that what appears to concern the noble Baroness is a fact. The noble Baroness will need to study carefully what has been said and she knows that if she wishes to raise any questions with me verbally, or in writing, I shall be glad to give greater clarification. But I can assure her that there is nothing sinister in this amendment.
Baroness Fisher of Rednal: Can the noble Lord tell us what he means by the cost floor date? That is a completely new one to me. I have tried to follow what the noble Lord said. I think that I understand what he means by the cut-off date. I am not quite sure whether what I think is what he thinks, but I shall not argue on that. But I am not sure what he means by the cost floor date.
Lord Bellwin: The cost floor date is the date on which the calculation is made as to what is the cost floor. Clearly I shall be happy to write a detailed explanatory note showing how the calculation is arrived at and anything else that I think would help the noble Baroness.
On Question, amendment agreed to.
Lord Bellwin Lord Bellwin moved Amendment No. 13:
Page 3, line 21, leave out from first ("of") to ("there") in line 22 and insert ("that section").
On Question, amendment agreed to.
Lord Bellwin Lord Bellwin moved Amendment No. 14:
Page 3, line 36, leave out from ("apply") to ("for") in line 37 and insert ("(a)").
On Question, amendment agreed to,
Lord Bellwin Lord Bellwin moved Amendment No. 15:
Page 3, line 41, leave out from ("(b)") to ("for") in line 42.
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Schedule 2 [Schedule inserted after Schedule 1 to 1980 Act]:
[Amendment No. 16 not moved.]
Schedule 2 agreed to.
Clauses 4 to 6 agreed to.
Schedule 3 agreed to.
Clauses 7 and 8 agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 17:
After Clause 8, insert the following new clause:
(Costs
.—(1) For section 21 of the 1980 Act (costs) there shall be substituted the following section—
"Costs.
21.—(1) Any agreement between—

(a) a tenant claiming to exercise the right to buy and the landlord; or

(b) a tenant claiming to exercise the right to a mortgage and the landlord or, as the case may be, the Housing Corporation,

shall be void in so far as it purports to oblige the tenant to bear any part of the costs incurred by the landlord or Housing Corporation in connection with the tenant's exercise of that right.
(2) Where a tenant exercises the right to a mortgage, the landlord or, as the case may be, the Housing Corporation may charge to him the costs incurred by it in connection with the tenant's exercise of that right, but only on the execution of the deed by which the mortgage is effected and to the extent that those costs do not exceed such amount as the Secretary of State may by order specify."
(2) In section 10(3), 11(6) and 13(2) of the 1980 Act for the word "exercising" there shall be substituted the words "claiming to exercise".").
The noble Lord said: The principal objective of this new clause is to clarify an existing provision in the 1980 Act, which applies where a tenant exercising his right to buy also exercises his right to a mortgage. Section 21(2) of the 1980 Act permits a landlord or the housing corporation, as the case may be, to charge to a tenant the costs incurred by the landlord in connection with the tenant's exercise of his right to a mortgage. This is subject to a maximum sum specified by order—which is currently £50 (prescribed by the Housing (Right to Buy) (Mortgage Costs) Order 1980. The Government have taken the view that Section 21(2) does not allow such costs to be charged where the mortgage is in the event not entered into. In policy terms I am sure this is right: tenants should not have to pay where—perhaps for reasons beyond their control—the mortgage transaction falls through. However, some landlords have interpreted Section 21(2) in such a manner as to allow costs to be charged even where the mortgage is not completed. The Government regard this as manifestly unfair. This is to correct that anomaly. I beg to move.
Baroness Birk: I am not entirely clear about this. Is this a form of a further subsidy to the tenants? Putting further costs on to the local authority seems to be an additional burden on them. The end of the new subsection (2) states:
"to the extent that those costs do not exceed such amount as the Secretary of State may by order specify".
I should like a further explanation of that. Does it mean that it all goes back to the Secretary of State each time? I wonder whether the noble Lord could clarify this a little more.
Lord Skelmersdale: At the moment, as I said just now, where the tenant exercises or seeks to exercise his right to a mortgage, he pays a fee of £50. Where the mortgage agreement is subsequently entered into, that £50 of course counts as part of the mortgage, but this amendment applies to where it does not and ensures that the tenant has the mortgage option money refunded, which I think the noble Baroness will agree is the right course to pursue.
Baroness Birk: It is getting a little late, and we have all been dealing with the Bill for some hours. I should like to reserve our position on this particular amendment and read, when I am probably clearer-headed, what the noble Lord has said. If necessary, I shall return to the matter on Report.
On Question, amendment agreed to.
Schedule 4 agreed to.
Clause 9 agreed to.
9.35 p.m.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 18:
After Clause 9, insert the following new clause:
(Costs of intervention.
. In subsection (9) of section 23 of the 1980 Act (Secretary of State's power to intervene) for the words from "on demand" onwards there shall be substituted the words "on a date specified in the certificate, together with interest from that date at a rate so specified".").
The noble Lord said: This is a very minor amendment to overcome an administrative difficulty, and I hope that it need not concern your Lordships for long. Section 23 of the 1980 Act gives the Secretary of State the power to intervene and take over the sale of council houses where it appears to him that tenants have, or may have, difficulty in exercising their right to buy "effectively and expeditiously"—and that is a quote from the Act. Where that power is used—and it has been used on two occasions—Section 23(9) enables the Secretary of State to recover from the landlord any costs incurred as a result of his intervention. He has to certify what those costs are. The difficulty which has arisen is that as soon as these costs are certified, interest is payable by the landlord as from the date of certification. Unless special arrangements are made, this will almost certainly be before the landlord gets his bill. This is absurd.
The purpose of the new clause is to ovecome these difficulties by amending Section 23(9) of the 1980 Act, so that the costs are payable by the authority on, and the interest will run from, such date as may be specified in the certificate, rather than from the date of the certificate, as at present. That will enable the Secretary of State to specify in advance the date on which the payment should be made, thus avoiding the complication of having to calculate interest from the date of certification itself.
The new clause will make the whole procedure much simpler to operate from an administrative point of view for both the department and the local authority, and I hope that your Lordships will agree to it. I beg to move.
On Question, amendment agreed to.
Clause 10 [Secretary of State's power to give directions as to covenants and conditions]:
Baroness Birk Baroness Birk moved Amendment No. 19:
Page 9, line 5, leave out lines 5 to 14.
The noble Baroness said: This amendment seeks to remove the power of the Secretary of State in the new Section 24B(1) to change retrospectively covenants and conditions of sale for dwellings which have already been sold under the right to buy. The AMA, in particular, and individual local authorities, have had protracted discussions with the Government over the types of conditions and requirements which can be included when the house is sold. The argument, which has been pursued on an all-party basis—I repeat that it has been on an all-party basis—is that conditions attached to sales in the public sector should be no more nor less than those which can be applied in the private sector. Therefore, representations have been made that it is reasonable to require purchasers to remain connected to district heating schemes where removal would affect the viability of such schemes. In order to help the case, evidence was provided of similar requirements in the private sector. First of all, the Government would not accept these arguments and threatened to intervene under the right to buy, but after meetings with Ministers it was agreed that the conditions would be reasonable in many circumstances.
Similarly, in the view of the AMA it is reasonable to include estate-based services, such as grass-cutting and maintenance of private estate roads, for purchasing households who enjoy these benefits, and once again evidence was made available to the Government of similar charges in the private sector. It is true to say that in the end many of these requirements were acceded to.
The existing powers in the 1980 Act already allow for either action in the county court or intervention by the Secretary of State should the conditions be considered unreasonable. In our view the whole of Clause 10 is quite unnecessary, since existing powers are more than adequate. It gives the Secretary of State the opportunity to set conditions for sale considerably more favourable to a purchaser of a property in the public sector than would be the case in the private sector. No such powers of redress exist for private sector purchasers who must use the courts.
What is particularly unsatisfactory is the retrospective power in Section 24B(1), which allows for changes to be made in the conditions of sale for properties already sold. At minimum, this power should be removed. If people who have bought their dwellings under the right to buy are dissatisfied with the conditions of sale, they should pursue their difficulties either with the landlord or through the courts in the same way as the private sector purchaser. Solicitors acting under the right to buy would in any case have advised them of the conditions and reasonableness of any lease or covenant. I beg to move.
The Lord Advocate (Lord Mackay of Clashfern): As the noble baroness has explained, the effect of the amendment would be to remove the first subsection of the proposed Section 24B and hence to disapply the Secretary of State's proposed power of direction in so
900
far as it may be applied to modify the terms of completed sales. The proposed Section 24B is in the Government's view an important and necessary part of the provision. I hope that your Lordships will reject the amendment. Indeed, I hope that the noble Baroness, after I have sought to explain our position, may feel able to withdraw it.
The purpose of Section 24B is to restore to former tenants their right to buy on the terms laid down by Parliament. I should emphasise first that the proposed power of direction is in fact only narrowly drawn. Under Section 24A the Secretary of State will be in a position to direct that certain covenants are not included in right to buy conveyances or leases only if it appears to him that conveyances or leases containing such covenants would not conform with the requirements in Schedule 2 of the 1980 Act. The Secretary of State will thus be in a position to make directions only in respect of covenants and conditions that are not in conformity with the 1980 Act.
In these circumstances, we believe that it is important that any changes imposed in connection with future sales should be capable of being applied also in connection with sales already completed. If a completed conveyance or lease includes covenants or conditions that do not conform with the requirements of the 1980 Act, it is in our view clearly right that the relevant covenants or conditions should be removed or modified appropriately. In our view, this is in no way to modify existing rights. It is simply to give proper effect to existing rights. I hope that your Lordships will share that view and that the noble Baroness will feel able, as I have said, to withdraw the amendment.
Baroness Birk: Is it not true that when this comes into effect it could result in higher rates? Is it not the case that financially this could be one of the results?
Lord Mackay of Clashfern: That situation could only arise if the existing rates are low by reason of provisions that should not have been put in the covenants or leases in question. This is giving to the tenants who have acquired their properties what they were entitled to under the 1980 Act. It is an effctive means of doing that.
Baroness Fisher of Rednal: I think that my noble friend mentioned district heating schemes. Is it not the case that, if half a dozen of the 18 pulled out of the district heating scheme, the cost of the scheme would have to be covered by those people still left in it? Who pays for that? The total installation is there and the cost of running it will be there. If there are 24 people participating and six of them buy, this means that 18 are left to pay. Who will cover that cost? Bearing in mind that of the 18, more often than not, 50 per cent. will be on housing benefit and social security schemes, who will cover that amount? Will it have to come out of the housing revenue account? That would be most unfortunate, as it would come out of rented property. Or will an extra Government grant be given? The cost has to be found somewhere if people are allowed to withdraw from a district heating scheme as mentioned by my noble friend.
Lord Mackay of Clashfern: Of course, precisely what the appropriate covenants or terms of conveyances should be is a matter of circumstances. But all that the Government's proposal does is to give the people who bought what the 1980 Act entitled them to get. Therefore, anything that the noble Baroness is saying about the impact of these matters is not a complaint against these powers; it is a comment upon what Parliament laid down in 1980. All that this is intended to do is to give effect to what Parliament then provided.
Baroness Birk: I think that I shall have to read what the Minister has said. This is a complicated matter. I am not satisfied either with the reply to myself or with the reply to my noble friend Lady Fisher. But I will have the opportunity possibly of coming back on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
9.47 p.m.
Clause 11 [Secretary of State's power to obtain information etc.]:
Baroness Birk Baroness Birk moved Amendment No. 20:
Page 10, line 26, leave out ("without instructions from the landlord").
The noble Baroness said: This whole clause is extremely worrying. It extends the Secretary of State's power which is embodied in Section 23 of the main 1980 Act and thrusts it that much more forward, which we find dangerous. I was in two minds at first to try and delete the whole of the clause, but I thought that that might be unacceptable to the Government. So for the moment we have tabled an amendment to leave out the words:
"without instructions from the landlord".
Under the powers proposed it means that the Secretary of State can at any time he thinks it necessary or expedient instruct local authorities to produce any document or copy of a document related to the right to buy. To exercise the existing powers in the 1980 Act, the Secretary of State must first be satisfied that delays are being experienced or that tenants are having difficulty in exercising the right to buy. Clause 11 is, therefore, much wider in its powers for the Secretary of State. I want to make it quite clear that the Secretary of State has already taken unto himself under the 1980 Act extremely wide powers which he has in some cases already used.
Under this clause, which I find very unpleasant, the local authority officers must comply with this provision regardless of instructions received from their employing elected members. In other words, they have an almost schizophrenic situation with their employers—on the one hand, the local authority which is their direct employer; and on the other hand, the Secretary of State who has taken unto himself in this Bill the right to intervene or interfere. This means that the Secretary of State can instruct any officer designated by the local authority as having control of the documents sought.
If one does not delete the clause which, as I have said, is one's first instinct, then we feel that the clause simply must be modified. What it does—and this must be wrong—is set local authority officers against their employers. By saying,
"without instructions from the landlord"
it means that the officers involved—and they need not be the chief officers—are responsible to their employers, the council, and are generally charged with carrying out their wishes and instructions. Should they receive notice under Clause 11, they may be required to act in a manner directly contrary to instructions received from their own employers. This may well affect their career prospects and certainly will not make for good relations between employer and employee. Local authority officers should not be made party to disputes on the right to buy in this matter. It really is very unfortunate, and in some ways quite monstrous, to ask people without instructions from the landlord, which as I understand it from the way in which this clause is drafted, means that the Secretary of State goes over the head of the local authority, which is the employer of these people, and demands a
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document or information. What kind of industrial relations is that? It is quite wrong both in philosophy and in practice and, in any event, the Secretary of State already has ample powers, which he has used. We are also well aware of the figures, which have gone up considerably, of the sale of council houses. At the moment there does not seem to be very much wrong with the numbers which are being sold. I beg to move.
Lord Prys-Davies: This particular clause has also given me some difficulty. As I understand it, by virtue of the 1980 Act the Secretary of State already enjoys the power to intervene when he considers that a tenant is having difficulty in exercising his right to buy effectively and expeditiously. Those are considerable powers, and I can assure your Lordships that many owners of leasehold dwellinghouses, who are qualified to purchase the freehold reversions of their homes under the 1967 Act, would wish that the Secretary of State had a similar power to intervene on their behalf when they are having difficulty in purchasing the freehold reversion expeditiously and effectively.
I could quote from South Wales and give instances of tenants who are finding it extremely difficult to proceed expeditiously with the purchase of their freehold reversion. So if the Secretary of State is concerned about the rights of tenants, why does he not in the first instant extend the right which he already enjoys, so that it is available to the lessees of dwellinghouses? That is point number one.
As I understand the 1980 Act—and the Minister can correct me if I am wrong—the Secretary of State also enjoys the power to demand that officers produce documents and information without the landlord's instructions. He already enjoys that right. I am very much against extending that right. He has that right if he wants to intervene, but it seems to me that he now requires this right in order to decide whether or not he will intervene. I should have thought that we should regard the right which he has been given in the 1980 Act to demand the production of documents and information as being exceptional. It should not be extended. If it is to be extended, then the onus is on the Secretary of State to show that he requires this additional power.
My Leader has made it quite clear why we are opposed to the extension of this right.
Lord Murton of Lindisfarne: Who is your Leader?
Baroness Fisher of Rednal: My noble friend meant to say his noble friend.
Lord Prys-Davies: Yes, my noble friend. We consider it an unreasonable demand. The position of the staff will be intolerable if they are bound to comply with the notice from the Secretary of State in breach of their instructions from their employers. Therefore, we have a real conflict between their loyalty to their employers whom they serve and their loyalty to the requirements of the State and it would be unreasonable to put officers in such a position. We are also concerned about the electorate and their elected representatives who seem to be having their job taken from them. Therefore, the tendency enshrined in this proviso drives a wedge between officers and councils

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and could be damaging for democracy. It is for the Secretary of State to make out a case for the extension of the right given to him in 1980 to the present circumstances.
Lord Mackay of Clashfern: The noble Baroness, Lady Birk, has explained that the purpose of this amendment to Clause 11 is to avoid a situation in which a local government officer would be presented with conflicting obligations between the wishes of his employer—the local authority—and the wishes of the Secretary of State. Before speaking to the amendment itself, however, perhaps it would be useful if I sought to clarify the purpose of Clause 11 as a whole. That clause builds upon a provision already contained in the 1980 Act, as the noble Lord, Lord Prys-Davies, has correctly said, giving the Secretary of State a power to require landlords to supply information.
Section 23 of the 1980 Act provides the Secretary of State with the power to intervene where it appears to him that a tenant or tenants of a particular landlord are experiencing difficulty in exercising their right to buy effectively and expeditiously. Where the Secretary of State has intervened he may use his powers under Section 23(5) to require a landlord to provide him with documents or information when he considers it necessary or expedient for the exercise of his powers of intervention. Section 23(5) already provides that any officer of the landlord shall without instructions from the landlord take all reasonable steps to supply the information requested; so the basic phrase is already in the Act of 1980.
The provisions of Section 23(5) do not give the Secretary of State express power to require the landlord to supply information prior to intervention. One purpose of Clause 11 is to put beyond doubt the Secretary of State's power to require information in the right-to-buy context prior to intervention. It gives the Secretrary of State a power to serve a notice on landlords—not just local authorities—requiring them to furnish him with any information he may need to decide whether tenants are having difficulty in exercising their statutory right to buy their homes, and whether he should exercise his powers of intervention.
Clause 10 of the Bill provides the Secretary of State with the power to give directions as to covenants and conditions contained in conveyances or leases by inserting two new sections, 24A and 24B into the 1980 Act. It is essential that the Secretary of State should also be able to obtain from landlords full information concerning any such covenants and conditions, in order to decide both whether or not to exercise his power to give directions and also how it should operate; this is the second purpose of this clause. The purpose of the clause is to enable the Secretary of State to obtain information so that he can decide whether or not these powers, which are essentially reserve powers, are exercisable. It is a power which is essential to enable the Secretary of State to ensure that tenants are able to exercise their statutory rights without hindrance or penalty.
I come now to the amendment moved by the noble Baroness. It seeks to remove the words "without instructions from the landlord" from the new section. The purpose is to prevent the local government officer being presented with conflicting obligations or
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becoming, in the words of the noble Baroness, schizophrenic. If landlord authorities are prepared to place obstacles in the way of tenants seeking to exercise their statutory rights then I ask your Lordships, who is responsible? To my mind there is only one obligation for both employer and employee alike. That is, to accept the decision of Parliament. No criticism should be attached to this provision of Clause 11. Any criticism should be directed at the landlord authorities which make the provision necessary.
The purpose of the provision is to avoid the possibility of a landlord forcing a confrontation with the Secretary of State by directing staff not to comply with a notice served under this section. The effect of the amendment moved by the noble Baroness would be to make such confrontations all the more likely. Removing the words "without instructions from the landlord" will do nothing to help the local government officer. In fact, arguably it would make his position rather worse. He would still be under the statutory obligation to take all reasonable steps that the notice is complied with. What, then, if his employers instruct him not to do so? His will be the invidious choice of deciding whether a court would consider it reasonable for him to disregard the instructions of his employers.
In my view the amendment moved by the noble Baroness is based on groundless fears. It is unnecessary and is a recipe for confrontation. It would disadvantage those whom it is claimed to help. I hope that in the light of that explanation the noble Baroness will feel able to withdraw the amendment, and I hope that in any event your Lordships would not feel able to support it.
Lord Prys-Davies: I asked specifically that the Secretary of State should establish that he has a case to demand this additional power. The Minister has not replied to that question. As I understand from the comments of the Minister when he spoke to an earlier amendment, the Secretary of State has been asked to intervene on only two occasions. We have heard of thousands of houses which have been sold since 1980, but he has had to intervene on only two occasions. Are those the grounds upon which he requires the additional powers—because he has had to intervene on two occasions in the matter of the sales of some thousands of houses?
Lord Mackay of Clashfern: I of course noticed the noble Lord's question, and I endeavoured to answer it. I said there were two grounds on which the Secretary of State considered it necessary to have this power. The first is that he requires express power to require information prior to intervention, in order that he may be able to decide on a better basis whether or not he should intervene. The second ground is in order to enable him to understand the position with regard to covenants and conditions which have been imposed in conveyances or leases, so that he may see whether these conform with the 1980 Act. That is the basis on which these powers are sought. With all respect to the noble Lord, I venture to think that I answered his question.
Baroness Birk: All my noble friend said is absolutely right, and I quite agree with him. What is now happening is that, as both he and I pointed out and the

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Minister agreed, we have in Section 23 of the 1980 Act more than ample powers—I seem to remember that we argued about that a great deal in the passage of that Bill—for the Secretary of State to intervene. It is quite insidious and creeping, this power of the Secretary of State. If it were not such a thin Committee as it is at the moment, there would have been many noble Lords concerned with local government who would have said something and remonstrated about this.
It appears that it is never enough. We get the very interventionary section in the 1980 Act, and now, again, in this Bill we have even more. I do not know whether the Secretary of State wants to emulate what the management appears to have been doing recently at BL. This way of conducting what I can only call industrial relations seems most extraordinary and damaging all round—to say that you can go over the authority's head to the employees! If the object is to do away with local government entirely and have everything run by the Secretary of State, and just have a puppet force there locally, this is one way of doing it. It is both undignified and unfair to the elected members. It also puts the people who are asked to produce the documents and information, at whatever levels they are working within the authority, at a difficult disadvantage.
This is late at night. As we can see there are very few of us in the Committee, and it is obviously not the moment to divide on this; but it is totally unsatisfactory. For the moment I shall withdraw the amendment and take an opportunity to read what the Minister has said. I cannot think that it will alter my mind. It was clear; there was nothing wrong with the clarity of his explanation. It was just completely unacceptable. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
Clause 12 agreed to.
10.5 p.m.
On Question, Whether Clause 13 shall stand part of the Bill?
Lord Skelmersdale: I think that it would be useful if we could now consider Amendments Nos. 24, 34, 35, 36 and 80. It will then become clear why the Government wish to delete the existing Clause 13. The first new clause, in Amendment No. 34, provides a limited but useful extension of the powers of local authorities and the housing corporations to guarantee repayment of mortgage loans. The present powers in Section 111 of the 1980 Act permit these authorities to idemnify only building societies. Since that provision was enacted, a greater share of mortgage lending has been provided by other financial bodies, particularly the banks.
There have been representations from both local authorities and financial institutions for an extension of the indemnity arrangements to other major mortgage lenders which will enable them to support the local authorities' home ownership initiatives at the lower end of the market, particularly in the inner cities, in shared ownership and council house sales. We agree that an extension of the provision will be helpful
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and this present opportunity is being used to extend the availability of indemnities as far as is possible within what is relevant to the Bill.
The second new clause (Amendment No. 35) to be inserted after Clause 23 essentially replaces the existing Clause 13. It has been redrafted for consistency with the first new clause which I have explained. The purpose of the second clause is to enable authorities to assist tenants with costs incurred in obtaining a private sector mortgage. Where a council tenant exercises the right to buy, he has a right to a mortgage from the local authority. Where he exercises that right, the local authority may charge him the costs incurred by them in granting a mortgage up to a maximum amount prescribed by the Secretary of State.
As I told your Lordships a little earlier, this limit is currently set at £50. Where the tenant seeks a mortgage from the private sector source, there is no limit on the transaction costs which he may be liable to pay; and often those costs can be rather higher than the maximum £50 payable in the right to buy a mortgage. The difference is generally small but we have had representations from a number of authorities that this extra charge is enough to deter some tenants who could obtain a private sector mortgage from doing so, with the consequent loss to the local authority of the capital receipt that they might otherwise have obtained from the property.
This new clause provides the local authority with express power to contribute towards mortgage costs. It covers both the case where the tenant seeks a private sector mortgage in initially exercising his right to buy and also the case where the tenant initially exercises his right to a mortgage from the local authority but subsequently agrees to pay that off and obtain a private mortgage instead. In both situations the authority will be able to assist with one of the incidental costs of survey fees, administration charges, and so on, as it thinks fit. It will be for the local authority to decide in what circumstances such contributions are justified.
The clause enables my right honourable friend to prescribe a maximum contribution by order. The precise sum is still for consideration but, obviously, it will be related to the typical charges which a householder may face in taking out a mortgage. This is a useful and sensible clarification of local authorities' discretion which will be of benefit both to the authorities and to the tenant purchasers concerned.
The remaining three amendments in this group are purely technical and consequential amendments to those I have already described.
Clause 13 disagreed to.
Lord Swinfen: I do not know whether it is in order for me to say so, but my noble friend Lady Parkes was trying to speak before the Question was put. I do not know what the position is. The Question has now been put; but she appeared to be trying to make a point on the amendment.
Baroness Gardner of Parkes: I was interested in Amendment No. 35.
Lord Skelmersdale: I am not sure whether I am in order, but I shall of course respond to any questions on

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Amendment No. 35 when we get to it. I shall move it formally and my noble friend will have an opportunity to question me at that point, if she so wishes.
Baroness Birk Baroness Birk moved Amendment No. 21:
After Clause 13, insert the following new clause:
(Elderly Persons Accommodation.
. In Schedule Ito the 1980 Act (Exceptions to right to buy) leave out paragraph 5 and insert—
"5. The dwelling-house is designed or specially adapted to make it suitable for occupation by persons of pensionable age, and which it is the practice of the landlord to let for occupation by persons of pensionable age.".").
The noble Baroness said: Because of the lateness of the hour, I shall be quite brief. This is an extremely important amendment and I am quite sure that we shall probably have to come back to it. Noble Lords—and, in particular, the noble Lord, Lord Bellwin—will remember that during the passage of the 1980 Act we had a lot of debates about the exclusion of elderly persons' accommodation from the right to buy. At that time, an amendment which I moved in this House was accepted. The amendment stated:
"The accommodation is designed or specially adapted to make it suitable for occupation by persons of pensionable age, and which it is the practice of the landlord to let for occupation by persons of pensionable age.".
It was passed with a considerable majority and with the support of a number of noble Lords from the Minister's own Benches, as well as from all around the House.
When the other place considered the Lords' amendments, it was, unfortunately—and very unfortunately, as it has turned out—modified to give the Secretary of State the final say in decisions to exclude elderly persons' accommodation from sale. That is in Schedule 1 to the 1980 Act, under which appeals go to the Secretary of State. This exclusion has worked out in a very one-sided way. The latest figures show that over 90 per cent. of applications from authorities of all political persuasions have been rejected by the Secretary of State.
Without wearying the House with an analysis of figures, I understand that the majority of appeals have come from Conservative authorities, which have been trying to operate the right to buy provisions as well as they can, and have been very concerned about the lack of rented accommodation for elderly people. This is particularly true in rural areas. It is our view that the exclusion of elderly persons' accommodation needs to be more tightly defined, in order that properties which are designed or specially adapted for the elderly are properly excluded from the right to buy arrangement.
This amendment is exactly the same as the one of 1980, but if there was some help and co-operation from the Government I should be quite prepared to change the drafting, if necessary, so that it could be discussed at the next stage. Without going into more detail—and I assure noble Lords that I have pages of detail—that is the nub of the case. There is no doubt that the intention and the spirit of the amendment which was passed in this House have worked out completely differently in practice, and this is causing a great many problems, anxiety and heartache. This is the first opportunity in this Bill to try to get it right again, and I hope that we shall be able to do so. My noble friend Lady Denington, who supported the
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amendment to the 1980 Act, has her name down to this amendment and we hope that something will come of it. I beg to move.
Baroness Denington: There is great disquiet about this matter. My noble friend Lady Birk has told your Lordships why we shall have to come back to it. In view of the hour I shall say no more, other than that I shall say what has to be said on the next occasion.
Lord Bellwin: That, if I may say so, is a pretty bit of shadow boxing. I, too, have copious notes on the matter. It is a question of how far one deals with it now. All I would say is that the main effect of the amendment would be to transfer from the Secretary of State to the landlord the responsibility for deciding whether to exclude elderly persons' dwellings from the right to buy. Its effect would be to withdraw the right to buy from some tenants who have it already, as agreed by Parliament. In the Government's view, it would be quite unacceptable to withdraw important and valuable legal rights from those who have them already. The fact is that the provision of what is now paragraph 5 of Schedule 1 to the 1980 Act represents a carefully balanced compromise, worked out, after much debate in both Houses, in 1980.
Although I do not wish at this late hour to inject an unduly contentious note into the proceedings, since we have had a good share of that today, I am sorry that yet again the Labour Party are reopening these issues and are trying to discriminate against elderly people who wish to buy their homes. I am not going to go into all that has happened in practice. However, the noble Baroness, Lady Birk, is right when she says that it does no harm to bring out what has been the experience. The noble Baroness referred to the 90 per cent. of rejections. A careful analysis of these is very revealing and makes the Government's case for not proceeding, rather than the noble Baroness's case. However, I gather that the debate is not for tonight. Therefore, at this stage I shall do no more than restate the Government's general attitude.
Baroness Denington: I thank the noble Lord, Lord Bellwin, for making his position quite clear. Now we know that we have to do battle with him.
Lord Bellwin: Not for the first time.
Baroness Birk: I agree that it is shadow boxing. I think the noble Lord, Lord Bellwin, agrees with me that there is not much point at this stage in prolonging the debate. He intends to bring forward examples. I, too, have examples which seem to me to be rather unfair. Parliament decided quite specifically, by a considerable majority in this House, that the dwellinghouse should be suitable
"for occupation by persons of pensionable age and which it is the practice of the landlord to let for occupation by persons of pensionable age".
Therefore, it defines the age group and the practice of the authority. This is the narrowing down which many people wanted. I am quite sure that the noble Lord would not welcome it now, but I could read out to him everything that was said to him in the debate on that amendment. I beg leave to withdraw.
Amendment, by leave, withdrawn.
Clause 14 [Right to be granted a shared ownership lease]:
10.20 p.m.
Lord Swinfen Lord Swinfen moved Amendment No. 22:
Page 13, line 42, leave out ("landlord") and insert ("landlord's agent").
The noble Lord said: This is purely a probing amendment to find out what is the position with any interest earned on the deposit of £100, bearing in mind that completion, after a notice to complete, must be within a reasonable period but not less than 56 days under Clause 19(3), which can be further delayed, as I understand the Bill, under the provisions of Clause 19(6) and (7) for another 56 days. If I am right, it can be delayed under the terms of Section 16(3)(c) of the 1980 Act for up to two years. So with interest at, say, 10 per cent., some 20 per cent. of the total deposit could be earned within that period. I should be interested to learn from my noble friend what the position will be. I beg to move.
Lord Bellwin: Clause 14(2)(c) repeats the provisions of Section 16(4)(c) of the 1980 Act. This requires a tenant, when he exercises his right to defer completion, to pay a deposit of £100 to the landlord. This deferment of completion is, of course, the necessary preliminary to the exercise of the right to shared ownership, which we are introducing in Clauses 14 to 21.
However, deferred completion is not itself new. Since the 1980 Act was introduced, over 2½ years ago, some 8,700 tenants have exercised the right to defer completion, and have duly paid the deposit of £100 to their landlord. I know of not a single case in which the present arrangements have given rise to any difficulty. Nor can I see that any difficulties are likely to arise from the fact that we are in this Bill extending the right to buy to certain new types of property.
My noble friend may have in mind the normal arrangement in the private sector, where someone who intends to buy a house will pay a deposit to an estate agent or solicitor acting as stakeholder, rather than direct to the vendor. However, in the case of the right to defer completion this is unnecessary, since the legislation specifically states what is to happen to the £100. If the tenant decides not to proceed with purchase, the £100 is to be returned to him; if he decides to proceed, either with outright purchase or with purchase on shared ownership terms, the £100 is to be counted towards the purchase price. This is all clearly laid down in Section 16 of the 1980 Act and Clause 19(2) of the Bill.
This amendment could not stand alone. If it were accepted, other amendments would be necessary to Section 16 and Clause 19. I do not think there are any considerations here which justify another batch of amendments, and as my noble friend said that this was in the nature of a probing amendment I wonder whether he feels that he has the information he requires and will withdraw. I hardly need say that if my noble friend would like further information or detail, I shall be glad to make this available to him.
Lord Swinfen: With the greatest respect to my noble friend Lord Bellwin, he has not answered my question as to what might be the position in regard to interest. He has told me what would happen to the deposit, and that I understand. But, surely, with a deposit being held by a landlord, in some instances for a considerable length of time, it can earn interest; and should not this interest go towards the purchase price? If the sale does not proceed and the deposit is returned, should it not be returned together with the interest?
Baroness Gardner of Parkes: I should like to draw the attention of the Committee to the common practice in Australia in these circumstances. If the purchase proceeds to completion, the benefit of the interest is given to the purchaser. If, however, the purchaser withdraws from his wish to buy, then the interest is given to the person who has lost the sale. If this matter is to be considered, perhaps an arrangement of that kind might be appropriate.
Lord Prys-Davies: I should like to support this probing amendment of the noble Lord, Lord Swinfen. It seems to me that we need an explanation as to whether the landlord is holding the deposit as a stakeholder and whether, if the transaction does not proceed, the deposit plus the interest will be repayable to the tenant; or, if the transfer is completed, whether the interest which would have been earned over two years will be applied in part reduction of the purchase price. That is the question that has been put, and I shall be interested to hear the answer.
Lord Bellwin: The position currently is that there is no provision for interest. It is an interesting point that my noble friend makes. We will certainly think about this. I believe the one point my noble friend would concede is that of great moment this matter is not. However, we shall certainly think about this, and I will drop a note to the noble Lord, Lord Prys-Davies.
Lord Swinfen: I think it is important to think of it at any time of year. If my noble friend had put a deposit on a property he would expect some benefit from the interest. I do not see why the tenant of a local authority should not have the same benefit from the interest one way or the other. But, under the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 agreed to.
Schedule 5 agreed to.
Clause 15 agreed to.
[Amendment No. 23 not moved.]
Clauses 16 to 20 agreed to.
Clause 21 [Application of certain provisions of 1980 Act]:
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 24:
Page 19, leave out lines 32 and 33.
The noble Lord said: I have already spoken to this amendment. I beg to move.
Baroness Birk: I am sorry, but I have become confused. When did the noble Lord the Minister speak to this? On what amendment was it?
Lord Skelmersdale: It was with the long and rather complicated speech on the Question to leave out Clause 13.
Baroness Birk: Is not that tied up with Amendment No. 35?
Lord Skelmersdale: Yes, it is.
Baroness Birk: I am sorry, but I do not follow. Would the noble Lord mind explaining how lines 32 and 33, being left out, fit in with the other amendments? I am sorry if he has to say it again. I would be grateful if I could be clear about this point.
Lord Skelmersdale: The lines we are leaving out apply to the revamping of Clause 13 under Amendment No. 35. Those lines become unnecessary.
Baroness Birk: Are they unnecessary because they are incorporated in the other amendment? The power of local authorities to contribute towards certain mortgage costs goes out, and it has been placed with the other amendment regarding the tenants. Is that so?
Lord Skelmersdale: That is correct.
Baroness Birk: What about the statutory declarations? Does that provision disappear entirely?
Lord Skelmersdale: The noble Baroness has got me totally at sea. Perhaps I could have a word with her afterwards, if that is agreeable to the Committee.
Baroness Birk: I think the noble Lord the Minister probably has the answer to it in his notes. This is leaving out statutory declarations. Is that included somewhere else in Amendment No. 35, or does it disappear altogether? We have the answer to the first point, the power of local authorities to contribute towards certain mortgage costs. It is now the statutory declarations. If we could get that out of the way, I think it would help us to go faster.
Lord Skelmersdale: I understand that it is also covered by Amendment No. 35.
Baroness Birk: I thank the noble Lord very much.
On Question, amendment agreed to.
Clause 21, as amended, agreed to.
Lord Denham: I think this is probably as far as we can reasonable go tonight. I therefore beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-nine minutes before eleven o'clock.