§
11 Clause 2, page 3, line 13, leave out subsection (3) and insert—
("(3) For paragraph 5 of Part I of Schedule I to the 1980 Act (circumstances in which the right to buy does not arise) there shall be substituted the following paragraph —
5. The dwelling-house is designed or specially adapted to make it suitable for occupation by persons of pensionable age, and it has always been the practice of the landlord to let the dwelling-house for occupation by persons of pensionable age; and in this paragraph
159
"designed or specially adapted" means accommodation built or adapted in accordance with the principles of advice and guidance on the design of elderly persons' accommodation issued by the Secretary of State and available to landlords at the time of construction or adaptation.".").
§ The Commons did not insist on their disagreement to the Lords amendment 11 but proposed the following amendment thereto:
§
12 Line 2, leave out from first ("of") to end of Amendment and insert ("that Part of that Schedule there shall be substituted the following paragraph —
"5.—(1) The Secretary of State has determined, on the application of the landlord, that the right to buy is not capable of being exercised with respect to the dwelling-house; and he shall so determine if, and only if, he is satisfied that the dwelling-house —
(2) An aplication for a determination under this paragraph shall he made within four weeks or, in a case falling within section5(2) of the Act, eight weeks of the service of the notice claiming to exercise the right to buy.".").
§ Lord BellwinMy Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 12 to the Lords Amendment No. 11.
Perhaps I could briefly remind your Lordships of the background to the second group of amendments —Amendments Nos. 11 to 25. The 1980 Act allows landlords to apply to the Secretary of State to have dwellings provided for the elderly excluded from the right to buy. That provision has given rise to a number of problems. Most importantly, many elderly tenants appear to believe that they do not have the right to buy at all, and some landlords appear to have been using that provision as a pretext for denying the right to buy without reference to the Secretary of State.
We therefore brought forward proposals in another place last December to end the present exemption procedure, and instead to provide that elderly tenants should have the right to buy on the same basis as other tenants; but that landlords should have rights of preemption where dwellings are resold within 21 years of the original sale. We saw this as a means of ensuring that elderly tenants obtained the rights which Parliament conferred upon them, but at the same time of giving landlords means of meeting the needs of the elderly for housing to rent.
As noble Lords will recall, at Committee stage in this House the noble Baroness, Lady Birk, successfully moved an amendment which adopted a quite different approach: it placed the responsibility for excluding elderly persons' dwellings from the right to buy with the landlord. This is an approach which the Government rejected in 1980. Given the evidence which has emerged since then of the apparent willingness of some authorities to deny elderly tenants their ligitimate rights, it is an approach which is even less acceptable to the Government now than it was in 1980.
When the Bill returned to the Commons, we proposed two measures to strengthen our original provision: the retention of an exemption procedure in certain rural areas, and a tightening-up of the landlord's right of pre-emption. On the Bill's return to 160 this House, however, the noble Baroness's amendment was again approved, though—if she will allow me to say so—by only one vote. Nevertheless, we have concluded that the only alternative likely to win sufficient general acceptance is to retain the present exemption procedure in basically its present form.
That is the effect of these amendments. They provide that it will remain open for all authorities to continue to apply to the Secretary of State to have elderly persons' dwellings exempted from the right to buy. At the same time, we propose to remove some of the difficulties which have arisen under the present provision by clarifying the criteria to be applied by the Secretary of State. The criteria to be embodied in the new paragraph 5 are those at present in Clause 7 of the Bill —the pre-emption provision. Like the previous criteria, they deal with physical characteristics and with the letting of the dwelling; but they are expressed in clearer and more definite terms. They will avoid the need for detailed inquiries into records by focusing on the present state of the dwelling and on the circumstances of the present letting. I believe that is a change which will be generally welcomed.
To minimise any difficulties over the interpretation of the new criteria we shall be issuing guidance to landlords in the form of a circular. This will cover such matters as the factors the Secretary of State will take into account in considering whether a dwelling is suitable for the elderly, and the administrative procedures to be followed. I give an undertaking to the House that we shall consult the local authority associations and other interested bodies, such as Age Concern, on the contents of this guidance before it is issued.
The other amendments in this group are technical, or consequential, amendments. The only one I think I need mention is Amendment No. 14, which deletes the provision presently in the Bill giving landlords a right of pre-emption in respect of elderly persons' dwellings. Now that the exemption procedure is to be retained generally, we see no case for a pre-emption option as well.
I confess to a certain disappointment that your Lordships rejected the original proposals, but again I congratulate the noble Baroness upon her assiduity (if I may use the term) in pursuing her course; not, if I may say so, for the first time —and I mean that in the nicest way. I believe that from the point of view of both tenants and landlords, this originally represented the most satisfactory way of resolving the problems that have arisen over paragraph 5. It has been said more than once in these debates that probably not many elderly people want to buy their homes. That may be true; but it is equally true that those who do should be able to know where they stand.
Nevertheless, these revised proposals, though more modest in their scope, will, I believe, represent a significant improvement on the present provisions. I hope that they represent a compromise which will be acceptable to the noble Baroness and to the House. I beg to move.
§ Moved, That this House doth agree with the Commons in their Amendment No. 12 to the Lords Amendment No. 11 —(Lord Bellwin.)
161§ 3.23 p.m.
§ Baroness BirkMy Lords, may I thank the Minister for the very clear, and, if I may say so, the very charming and courteous way in which he put forward the changes which have been made in this part of the Bill. As the Minister has pointed out, when the Bill arrived first in this House from another place all except sheltered housing was open for sale. The 1980 provisions have been taken out, subject to the old Clause 7 which covered the 21-year pre-emption buy-back, which was discretionary, anyway.
As the Minister pointed out, my amendment moved here was won twice, but as he also quite fairly pointed out, the second time it was by one vote. It was at that point that we had to make a brinkmanship decision: should we go forward and try again, or not? It seemed to me that the chances of winning a third time were doubtful; I would not say hopeless, but doubtful. The Government were also obviously slightly worried because there was quite a hiatus over this. But if it had been lost, I felt that the position then would have been very much worse than it was before I moved the amendment. Therefore, it seemed sensible to come to some kind of compromise which would be acceptable, not only to the Government, but also to my noble friends and myself, and indeed to all those noble Lords from all parts of the House who had supported the amendment on both occasions.
So the decision then was to go back to the 1980 situation, but as the Minister has quite rightly pointed out, it is a tremendous improvement on itself. First, the criteria are much more clearly spelt out, they are wider, and there is less doubt. It has the advantage over my own amendment that it is not as restrictive. I made my amendment deliberately restrictive so that it applied only to houses which had always been occupied by elderly persons. I did that in order to try to meet the Government's objections; but this has now gone.
The only query arises on the point that we have gone hack to the situation where the Secretary of State has the right of determination. But one of the things which I am glad the Government have finally been persuaded to agree to was the determination that it had to be mandatory on the Secretary of State, subject to the two criteria which are in the Bill.
I think I also asked the Minister for a code of guidance, and he has so clearly expressed it, for which I am grateful; there will be a code of guidance, or a circular. The question of consultation with local authority associations and with other bodies which are concerned with elderly people and the disabled is extremely important.
I would thank the Minister not only for his patience while all this was going on, but for the very large part he played, I am sure, in trying to get some rapport between the hawks and the doves over this question. I think that the definition we now have is very much better. We now have safeguards in the Bill for those elderly people who are living in rented housing, and so it is a very much better Bill. In the future elderly persons in rented accommodation will be in a very much happier and more secure situation.
Finally, this is a considerable victory for this House, and is one of great importance to very many people in 162 the country. Again I express my gratitude for the support received from all Benches in this House. The feeling in the House so far as this question is concerned was quite clear.
§ Lord Evans of ClaughtonMy Lords, may I say, for the avoidance of doubt following some discussions that were held in another place on this amendment, that we welcome very warmly the new amendment and we congratulate the Government on their generosity and on their understanding of the will of this House. I should particularly like to congratulate the noble Baroness on her assiduity and her devotion to working at week-ends and even to trying to make the Government see the error of their ways. I think she deserves our deep gratitude for the way she persisted in following this matter, strengthened, as I believe she admits, by the knowledge that she had support from a very wide spectrum of opinion in your Lordships' House.
I think this is a considerably better outcome, particularly in the light of what the noble Lord the Minister said about the guidance to be issued to local authorities. That will be very helpful. I think it will be helpful to those councils which desire to retain a stock of housing for the elderly.
I believe that the position has improved compared with what it was under the Housing Act 1980. That Act stipulated that in applying for a property to be exempted from the right to buy, the council must satisfy the noble Lord's department that the dwelling had been designed or specially adapted for elderly people. As I see it, the new clause would require council approval only if a dwelling were particularly suitable for occupation by elderly people. I think that is a considerable advance on both the original amendments discussed in this House and the position under the 1980 Act. Therefore I hope and believe that the new clause will reduce bureaucratic problems, will give councils more liberty, will protect elderly people who need rented accommodation, will improve the position compared with what it was under the 1980 Act, and will be generally and widely welcomed, not only by this House but also, I think, by bodies such as Age Concern and others which care about elderly people. I very warmly welcome the new clause.
§ Lord MolsonMy Lords, I should like to associate myself especially with my noble friend Lord Selkirk, the noble Baroness, and the noble Lord, Lord Evans of Claughton, in welcoming the satisfactory solution to this protracted dispute between your Lordships' House and the Government. I should like in particular to echo the tributes that have been paid to my noble friend Lord Bellwin for the courtesy and patience which he has shown all through these matters, and I wish to associate with him in these remarks the Leader of the House, who has been extremely helpful.
Having said that about the solution of this problem, I should like to take a little of your Lordships' time to examine why this controversy arose. I shall criticise the drafting of the 1980 Act and the way in which the Secretary of State has exercised his discretion. I shall not criticise his advisers, whether parliamentary draftsmen or legal advisers or civil servants, because Ministers alone are responsible.
163 In the heyday of Socialist dogmatism, Mr. Douglas Jay proclaimed that the "gentleman in Whitehall knows best". That dogma was hung round his neck like an albatross —and I think it still dangles there —and also round the neck of the Labour Party. I never then expected to see a Conservative Administration adopt that dogma in the way that it did in the 1980 Act. In dealing with the right to buy houses adapted for the elderly in rural areas, the Secretary of State assumed the right at his discretion to decide two things: first of all, to decide what are rural areas, and, within those areas, to decide what individual houses should or should not be sold. In both cases his exercise of his discretion seemed unreasonable.
On 23rd May the noble Lord, Lord Hylton, asked a parliamentary Question which was answered by my noble friend Lord Skelmersdale on behalf of the department. Lord Hylton asked why, out of 129 applications made by authorities which thought themselves rural, only 21 had passed the Secretary of State's test. It might be thought by anyone looking out of the train while travelling about this country that quite a large proportion of the countryside is rural. But the Secretary of State took, in the main, two criteria into account in deciding what were rural areas. The first was that he used an illustrative figure of two persons per hectare, or less, to identify rural areas. In the second place, he asked the authorities to satisfy him that the incidence of second homes in their areas was such as to warrant designation. Unless there were a sufficient number of second homes, he denied a designation.
In designating these areas, the Government, in the words of my noble friend Lord Skelmersdale, as given in Hansard,
With scrupulous attention to detail … have followed the wishes of your Lordships and Members in another place".I would substitute for the words, "With scrupulous attention to detail", the words "with unreasonable prejudice". If that is the way the Department of the Environment has administered these provisions, it is not surprising that my noble friend Lord Bellwin should have complained in the Second Reading debate that the administration of these provisions cost his department £150,000 a year. Indeed, but for this pedantic administration there might have been some reduction in the number of civil servants, to which we understand the Prime Minister attaches so much importance.There is a far deeper ground for complaint. This reference to the wishes of legislators implies that, in interpreting the 1980 Act, the Secretary of State has been perusing Hansard. It is an established principle that in interpreting a statute the courts do not refer to parliamentary debates. Much the same principle should apply when a Minister is exercising a discretion given to him by Parliament. When there is a general debate and different opinions are expressed, it is impossible for either a court or a Minister to gain any trustworthy guidance from the debate.
In the wording of the Act of 1980 dealing with these provisions there is no reference to second homes. The main concern of Parliament was the reservation of suitable houses for elderly people. Second homes were 164 only relevant because such a dwelling was removed from the pool of houses for the elderly. The words "rural areas" ought to have been construed in a reasonable way. This was expressed by the noble and learned Lord, Lord Simon of Glaisdale, when he said that they should be areas which are in every sense rural in the common acceptance of that term. I know that Ministers feel that some local authorities have unfairly frustrated the wish of tenants to buy. My noble friend Lord Bellwin repeated that in his speech this afternoon. I doubt whether this applies in many cases to rural authorities. The Government, however, have provided this complicated system of designation and appeals but it is difficult to resist the suspicion that the Government have allowed their own prejudice in favour of the right to buy to influence their decisions; and the figures tend to confirm that.
It is an unsatisfactory system when appeals are used too frequently to reverse the views of local authorities. The Tory Party has always maintained in principle that freedom demands a wide distribution of power. That means that local decisions, unless perverse, should not lightly be reversed by authorities in Whitehall. It also means that the administration of housing policy should largely be left in the hands of local authorities. I have analysed how it comes about that there has been such a serious difference of opinion between this House and the Government, settled as now, in the case of this new Bill, by the concessions which have been made by the Government. May I now appeal to them to carry this spirit of conciliation a little further and to modify, in the light of all that has been revealed, the interpretation they have put on the existing legislation so as to allow a slightly more generous interpretation than they have done in the past.
I would make a special plea to my noble friend Lord Bellwin to appeal to the Secretary of State to allow the 108 local authorities where he has refused to designate to apply again, with some hope now that he will recognise rural areas to be really rural. I hope also that when considering applications in respect of individual houses, he will not attach such importance to second homes, but much more to the future needs of the elderly. I would say to the Government, being in possession of an unassailable majority in another place, that it is a sign not of weakness, but of strength, for them to agree to modify their policy in the face of reasoned arguments and the declared wishes of this House.
§ Lord BellwinMy Lords, I have no intention of replying to my noble friend, except to say that, of course, the authorities concerned by all means can, and should, apply again. Other than that, I shall not take up the other points that he made. As has rightly been said, we have been debating this issue for two years. The last thing I would do at this late stage is to start debating the philosophies and theologies of the right to buy. I hear what my noble friend says
I beg formally to move that the House doth agree with the Commons in their consequential amendments, Amendments Nos. 13 to 20 —
§ Lord Hatch of LusbyMy Lords
§ The Lord ChancellorMy Lords, the Question is, That this House doth agree with the Commons in their Amendment No. 12 to the Lords Amendment No. 11.
§ On Question, Motion agreed to.