Lords Sitting of 25 July 1988

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

Piper Alpha Platform Explosion
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they propose to take any immediate action in the light of what is already known about the Piper Alpha oil rig disaster, in advance of the report of the inquiry, in order to prevent a repetition of such a tragedy.
Viscount Davidson: My Lords, it is the Government's intention that any early lessons that can be learnt from the accident should be extracted and immediate guidance issued to operators of North Sea installations. To enable this, the Health and Safety Commission and the Secretary of State for Energy have set up a technical investigation into the cause of the accident.
Lord MolloyMy Lords, I thank the noble Viscount for that reply which contained a degree of encouragement. However, is the noble Viscount not aware that the threat of serious explosion can be contained? For example, experts have pointed out that on the Brent Alpha Platform, 200 miles further north and 24 hours earlier, a similar accident took place but because of the efficiency of the system, which had been properly maintained, the explosion was not nearly such a disaster as that which occurred on Piper Alpha. Are these matters being taken seriously? Is that the example that the noble Viscount had in mind when replying to my initial Question?
Viscount DavidsonMy Lords, of course everything is taken extremely seriously. That is why a public inquiry is being set up and also a departmental investigation.
Lord PestonMy Lords, do the Government know whether those who own and operate these oil rigs have themselves engaged in a series of safety checks in the past few weeks to make doubly sure, at least for the moment, that everything is as well as it can be?
Viscount Davidson: Yes, my Lords, they have.
Lord Molloy:My Lords, is the noble Viscount also prepared to accept that the siting of the crews' living accommodation on the Alpha Piper platform, whoever brought that about, was also a disaster? According to the experts the accommodation should never have been placedthere. Does the noble Viscount therefore agree that constant testing of the central control system is necessary and that nothing trivial should be overlooked to prevent any such disaster in the future? I thank the Minister for his replies and the Government for their endeavours.
Viscount Davidson: My Lords, I think that it is wrong for me to say anything at this stage or for anyone in this House to prejudge what may come out of the inquiry.

Overseas Visitors
2.40 p.m.
Baroness Elliot of Harwood Baroness Elliot of Harwood asked Her Majesty's Government:
How many overseas visitors came to the United Kingdom in the first quarter of 1988.
The Earl of Dundee: My Lords, provisional estimates suggest that 2,880,000 visitors came to the United Kingdom in the first quarter of 1988.
Baroness Elliot of Harwood: My Lords, I congratulate the Government on their successful policy on tourism. Can the Minister say whether the increase in visitors is reflected in an increase in their spending to the benefit of our traders?
The Earl of DundeeMy Lords, the noble Baroness is, of course, right in the implication in her

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supplementary question. It does not necessarily follow that with a large number of visitors there will be a commensurate level of spending. So far there has not been a noticeable discrepancy between the two, but it goes without saying that it is important to maintain a good spread of markets to minimise dependence on any one sector. The BTA is working to develop new markets as well as to maintain existing ones. It is certainly vital to offer value for money in all sectors of the tourism industry.
Lord Williams of Elvel: My Lords, can the noble Earl inform the House how many people left the United Kingdom as visitors to overseas countries in the first quarter of 1988?
The Earl of DundeeMy Lords, I do not have that information. Visitors from Western Europe to the United Kingdom are 60 per cent. of the total. As to the proportions of United Kingdom citizens visiting Western Europe and Western European citizens coming to this country, about two-thirds of our people are going to Western Europe and one-third of Western Europeans are coming here.
Lord Gainford: My Lords, has the noble Earl any information about the reasons for tourists coming to this country? Is it the result of successful advertising abroad in favour of Britain or the recommendation of travellers who have been here and who are telling their friends?
The Earl of Dundee: My Lords, I imagine it is a combination of all such factors. However, it has probably nothing to do with our weather.
Lord Graham of Edmonton: My Lords, what special steps are the Government taking to improve the efficiency of the tourist industry in this country? Is the Minister aware that the service industries undoubtedly play a vital part in entertaining overseas visitors? Is he further aware that in many of the service industries, not least the catering industry, wages and conditions are very bad? Can the Minister tell the House what special steps the Government are taking to make visitors to this country even more welcome and satisfied in the future?
The Earl of Dundee: My Lords, I am grateful to the noble Lord. It is extremely important not to be complacent. Even if the figures are good, as they are at present, we must strive to obtain better results. I can assure the noble Lord that both the BTA and the ETB are doing everything to improve marketing and to make the proposition of visiting this country more attractive.
Lord Thorneycroft: My Lords, will my noble friend give unequivocal congratulations to the hotel and catering industry that works so hard and which does a magnificent job in attracting tourists to this country?
The Earl of Dundee: My Lords, yes indeed. I am happy to give the figures. There are 180,000 people
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self-employed in the hotel and catering sector which is a growth of 24 per cent. between 1981 and 1987 or 6 per cent. from 1985 to 1987.
Lord Nugent of Guildford: My Lords, is my noble friend aware that the University of Surrey makes a valuable contribution to this business by being the only faculty in the country which gives a degree in catering?
The Earl of Dundee: My Lords, I am glad to hear that from my noble friend. I was not aware of it. I hope that many universities and their faculties follow this example in due course.
Lord Williams of Elvel: My Lords, the noble Earl mentioned a figure of 180,000 people employed in the hotel and catering industry. Can he tell the House how many of them are overseas visitors?
The Earl of Dundee: My Lords, I shall have to write to the noble Lord on that point.
Lord Elwyn-Jones: My Lords, surely overseas visitors come here for the weather, do they not?
The Earl of Dundee: My Lords, I have my own views about the relative attractions of the weather north of the Border where I live. I cannot speak for Wales, of course.

BBC Portrayal of Police Activities
2.45 p.m.
Lord Nugent of Guildford Lord Nugent of Guildford asked Her Majesty's Government:
Whether they are satisfied that the BBC is observing its formal obligations in current programmes portraying police activities.
The Minister of State, Home Office (Earl Ferrers): My Lords, the BBC is responsible for the content of the programmes which it transmits. It is not a matter in which the Government intervenes.
Lord Nugent of Guildford: My Lords, I thank my noble friend for that not very informative Answer. Is he aware that in an episode of "EastEnders" shown during family viewing time at 7.30 in the evening of 12th July there was a scene with a girl who had been raped reporting at a police station which breached all standards of good broadcasting? Is he further aware that the Commissioner of Police of the Metropolis has already complained to the BBC that the portrayal of the police officer in these very sensitive circumstances as rough and unsympathetic was quite damaging to all that the police have tried to do in recent years? Is my noble friend aware that a complaint was made by Mrs. Whitehouse of the National Viewers' and Listeners Association about the fact that showing a scene of sex and violence during family viewing time is very offensive? Will he please expedite the setting up of the Broadcasting Standards Council to deal with such offences.
Earl Ferrers: My Lords, I am sorry that my noble friend did not find my Answer very informative. If I may say so with modesty, I thought it was peculiarly informative. I understand his concern. As a Minister with responsibility for the police, I have sympathy with those who find it a great pity when producers portray them in an inadequate or insensitive manner. This matter has given a great deal of trouble over the past two years and efforts have been made to make the reporting of such offences less traumatic than it used to be.
I believe some people may find the portrayal of this kind of material not to be very good entertainment. That is a matter of opinion; it is not a matter upon which the Government have the right to intervene..
I assure my noble friend that the Broadcasting Standards Council has been set up and it already has a chairman; a deputy chairman is likely to be appointed in the near future. We hope that the council will be operational before the end of the year. I also confirm to him that the BBC has strict guidelines which it gives to producers, stating what should and should not be portrayed. Nine o'clock is regarded as the hour before which particular care should be taken.
Baroness Birk: My Lords, is it not the case that in the following episode of this programme two days later the rape victim was persuaded to go to the police station? As was shown on television, she received a very sympathetic response from a policewoman. This fact was praised by the real police. Is the Minister further aware that in an interview with the Daily Mail on 14th July, Commander Thelma Wagstaff, chairman of the Fourth Metropolitan Police Working Party on Rape and Sexual Offences, said:
"it is clear that the male police officer in question had not had special training in dealing with rape victims…we still have a very long way to go"?
Does he agree that it is very important that, if a rape victim is put off by an initial brush with the police, she should at least be encouraged to go to the police station to have the opportunity of the sympathetic response that occurred in this case?
Earl Ferrers: My Lords, the noble Baroness is quite right. If a person has such a traumatic experience she should be encouraged to go to the police because there are special places set up to deal with such cases. Of course not everyone follows all the cases serial by serial, and very often the damage which is done by one episode is not necessarily rectified by a later episode. That is very much a matter for the producers.
Lord Mellish: My Lords, is the Minister aware that some of us share the view expressed by the noble Lord, Lord Nugent, that television companies portray the police either as buffoons or villains? In the view of many noble Lords, they are neither, but ordinary men and women trying to do a decent and a very tough job. Is it not about time that the Government told the BBC and ITV that enough is enough?
Earl FerrersMy Lords, I have a great deal of sympathy with what the noble Lord has said about
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the police being ordinary people trying to do a difficult job. However, it is not for the Government to tell the BBC that enough is enough. It is for the noble Lord to write to the chairman of the BBC to tell him that enough is enough.
The Earl of Halsbury: My Lords, if the noble Earl were sitting at home with his family when a battered woman arrived to complain that she had been raped, would he not tell the children to leave the room while he dealt with the matter? Has the BBC a right to introduce battered women who have been raped into family viewing hours? Is it not time that the chairman of the governors of the BBC, whoever he is, let it be quite clearly understood by all his staff and producers that the next person who causes the BBC to make a public apology will be fired without benefit of anything at all, that the second time it happens his boss will be fired, and so on up the line until one has got rid of the chairman of the governors of the BBC? Thus are men governed.
Earl Ferrers: My Lords, that is a fascinating catalogue of firing which extends the imagination to understand. However, I do not propose to reply to my noble friend's question as to what I should feel like if such an eventuality happened to me, though I realise why the noble Earl asked it. All I can tell him is that, in a private capacity, I have informed the chairman of the BBC that I would find it convenient if he so conducted the orders of his corporation that I was not subjected to answering Questions of this nature which it is not my responsibility to answer.
Lord Harris of Greenwich: My Lords, is the noble Earl aware that the BBC produces many helpful programmes such as "Crimewatch" arid many others which are of immense advantage to the police service? Does he not agree that we live in a liberal democracy, which means that the government of the day do not give instructions to the BBC?
Earl Ferrers: My Lords, the noble Lord, Lord Harris, is absolutely right, and that is why I have no intention of giving any instructions to the governors of the BBC. The very point he makes serves to underline the vital role producers have in producing the kind of material which is acceptable. On the principle that people are affected by what they see, producers have a large responsibility in that regard. The BBC gives guidelines to producers which say that scenes of violence may well make a programme unsuitable for an early placing. So too may sex, bad language, blasphemy or scenes of great distress.
Lord Jenkins of Putney: My Lords, is the noble Earl aware that, while many of us would agree that due care should be taken, and normally is taken, about programmes broadcast in family viewing time, nevertheless it is right and proper that the bad should be shown in order to show what can be done about it? One cannot illustrate the good without first showing what it is one wishes to cure, as it were. Is he not further aware that if all the propositions put to him from around the House were put into effect by the BBC, we should have nothing but mindless pap?
Earl Ferrers: My Lords, the noble Lord, Lord Jenkins, is entirely entitled to hold that point of view. I fancy that not everyone would agree with him, but that is why I have no intention of giving any instructions to the BBC. If I did, I would attract a holocaust from your Lordships
Lord Taylor of Blackburn: My Lords, I share the great concern of the noble Lord, Lord Nugent, on this matter, but surely to put down Questions of this nature when the Government have set up an independent Broadcasting Standards Council is not the right thing to do. The right thing to do is to send them to the council and not to discuss them in this House. The Government will not forward these complaints when a body has been set up to deal with them.
Earl Ferrers: My Lords, the Broadcasting Standards Council has been set up and will act as a focus for public concern about the portrayal of violence or sex in all forms of broadcasting. It will monitor programmes, receive and examine complaints and undertake research. In the past I have drawn to the attention of the chairman of the BBC your Lordships' views, and I dare say that it would be as well if on this occasion I were to draw his attention to the whole range of views which have been expressed.
Lord Nugent of Guildford: My Lords, is my noble friend aware that it is evident from the amount of interest on all sides of the House that this Question was justified? Is he further aware that I am not opposed to BBC programmes generally? I enjoy them very much. It is perfectly possible to show films about the police which are not offensive. We could not look for a better example than those provided in the past by the noble Lord, Lord Willis. "Dixon of Dock Green", a marvellous drama which we all enjoyed, offended nobody.
Earl Ferrers: My Lords, I quite understand what my noble friend says. The part that concerns a number of people—the subject matter of this showing—is not on the whole regarded as what one might call good entertainment stuff. However, that is the responsibility of the BBC. It has to decide whether or not to broadcast it.
Lord Annan: My Lords, does the noble Earl agree that the constitutional position is that the broadcasting authorities are responsible to Parliament, and that it is therefore very much in order that in either House of Parliament Questions of this kind should be raised? That having been said, it is entirely right also, as the noble Earl has been saying, that he can only say that he will draw the attention of the authorities to what has been said in Parliament.
Earl Ferrers: My Lords, the noble Lord, Lord Annan, raises a fine point. The broadcasting authorities are responsible for broadcasting. They are not just responsible to Parliament for broadcasting, they are responsible throughout the United Kingdom.

The Glorious Revolution Exhibition
2.56 p.m.
Lord Sudeley asked Lord Sudeley asked Her Majesty's Government:
How many people are visiting the Parliament and the Glorious Revolution exhibition at the Banqueting House, Whitehall, and what steps, if any, are being taken to promote awareness of this exhibition amongst the public.
Lord Beaverbrook: My Lords, for the period 1st July to 19th July 1988 there were 6,150 visitors to the Parliament and the Glorious Revolution Exhibition at the Banqueting House, Whitehall. Various promotional activities have been undertaken to publicise the exhibition. These include direct mail campaigns, posters, distribution of information packs, press photographs, press advertising, a radio feature and facilities provided for national and regional television companies.
Lord Sudeley: My Lords, I thank the Minister for that Answer. Does he think that the front of the building should be marked with broad banners which could be seen from the other side of Whitehall on Horse Guards Parade? Secondly, bearing in mind that previous exhibitions organised by the COI were important occasions and have been provided with men dressed in costumes suitable to the period, does the Minister not think that one of these people should be stationed on the other side of the road, on Horse Guards Parade, on a rota system to distribute leaflets about the exhibition opposite?
Lord Beaverbrook: My Lords, with regard to my noble friend's first point, I understand that additional banners on the facade of the Banqueting House are being arranged. As to having a member of staff dressed in costume on the other side of the road, that is another matter. However, I shall draw my noble friend's remarks to the attention of those responsible for the running of the exhibition.
The Earl of Longford: My Lords, have Ministers had time to read an admirable article in the Sunday Times yesterday written by a brilliant academic writer, Mr. Clarke, in which the claims made on behalf of the so-called Glorious Revolution are revealed as a total nonsense?
Lord Beaverbrook: My Lords, I have seen the article but I suspect that it has not put many people off yet. After all, Sunday is rather recent history.
Lord Hailsham of Saint Marylebone: My Lords, while expressing great admiration for my colleague at All Souls, is my noble friend aware that academic lawyers never make their money by saying that the House of Lords is right in any particular judgment and that academic historians never make their money by saying that the established truth is true?
Lord Beaverbrook: My Lords, I am sure that my noble and learned friend has an important point.
Lord Annan: My Lords, is the noble Lord aware that Mr. Clarke has written a book in which the Old Pretender is referred to throughout as James III?
Lord Beaverbrook: My Lords, the noble Lord has made a good point, but perhaps we can continue with the history lessons outside the Chamber.
Baroness Strange: My Lords, is my noble friend the Minister aware that I have purchased several of the attractive Glorious Revolution tee shirts for some of my younger kinsmen? Further, would it not promote the exhibition if some of your Lordships were to wear these garments?
Lord Beaverbrook: My Lords, perhaps my noble friend would like to distribute further samples.

Business
3 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Housing Bill will be adjourned at approximately 7 p.m. for approximately one hour. During the adjournment six Black Country Development Corporation (Vesting of Land) orders and seven Tyne and Wear Development Corporation (Vesting of Land) orders will be taken.

River Humber (Burcom Outfall) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.
London Regional Transport Bill
Read a second time, and committed to a Select Committee.

County of South Glamorgan (Taff Crossing). Bill
Read a third time.
Clause 15 [Power to stop up streets temporarily]:
The Chairman of Committees (Lord Aberdare)The Chairman of Committees (Lord Aberdare)
moved the amendment:
Page 10, line 38, leave out ("interference").
The noble Lord said: My Lords, I beg to move an amendment to Clause 15. This is purely a drafting amendment.
On Question, amendment agreed to.
Lord Aberdare: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Aberdare.)
On Question. Bill passed. and returned to the Commons with amendments.

Road Traffic Bill [H.L.]
3.3 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, I wonder whether it is necessary to have three road traffic Bills and whether it would not be possible to combine them all into just one Bill?
The Lord Chancellor: My Lords, the fact that three Bills were prepared is due to the need to have Bills that are efficient and comprehensible. The view was taken that the Road Traffic Bill should deal with those matters which were not concerned with offences, and that traffic offences should be consolidated separately. It was decided to have a third Bill which would deal with consequential provisions which would gradually disappear from importance. We would then be left with two Bills which would continue to have importance and have distinct subject matters..
As regards the necessity of having three Motions on the Order Paper, I should be most happy to dispense with that procedure, but the Standing Orders of the House require that we deal with each of them separately.
On Question, Bill read a third time.
The Lord Chancellor: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
On Question, Bill passed, and sent to the Commons.

Road Traffic Offenders Bill [H.L.]
Read a third time, and passed, and sent to the Commons.
Road Traffic. (Consequential Provisions) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Education Reform Bill
3.4 p.m.
The Parliamentary Under-Secretary of State, Department of Education and Science (Baroness Hooper): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Baroness Hooper.)
On Question, Motion agreed to.
CONSIDERATION OF COMMONS AMENDMENTS.
TO CERTAIN LORDS AMENDMENTS
[References are to HL Bill 71 as first printed for the Lords.]

LORDS AMENDMENT
1 Clause 50, page 44, line 48, at end insert
("(7) Subject to subsection (8) below, it shall be the duty of the governing body of any school which is eligible for grant-maintained status, at the request of any parent of a registered pupil at the school, to make available to the parent for inspection (at all reasonable times and free of charge) at the school, and to supply the parent with a copy of, a list containing the name and address of every person who is known to the governing body to be such a parent if the request is made—

(a) in connection with any proposal that a ballot should be held in accordance with section 51 of this Act; or

(b) where the governing body are under a duty by virtue of this section to secure that such a ballot is held, in connection with the holding of the ballot.

(8) A governing body shall not disclose to a parent under subsection (7) above the name and address of any person who has requested the governing body in writing not to disclose that information under that subsection; and accordingly the name and address of that person shall be excluded from the list there mentioned.
(9) A governing body who in pursuance of subsection (7) above supply copies of the list there mentioned may charge such fee as they think fit (not exceeding the cost of supply) in respect of each copy so supplied.
2 The Commons agreed to the above amendment with the following amendment.
Line 12, after ("section") insert ("or section 51(7A) of this Act." ).
The Lord Privy Seal (Lord Belstead): My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2 as an amendment to Lords Amendment No. 1. At the same time I should like to speak to Amendments Nos. 3 to 13 as printed on the Marshalled List..
The procedures by which a school may apply to my right honourable friend the Secretary of State to become grant-maintained are well-trodden. But let me briefly reiterate them. First, the governors must resolve to hold a secret postal ballot of all the parents on the question and consult the local education authority, and any trustees that the school may have, and confirm that resolution at a second governors' meeting held not less than 28 days later..
Alternatively, a significant number of parents may put forward a petition requiring the governors to hold a ballot. If the outcome of the ballot shows that parents favour grant-maintained status, the governors must draw up a formal application and submit it to the Secretary of State. It will be open to all those with a legitimate interest in the school—for example, parents and staff, the local education authority, the trustees, if any, and parents of children in feeder primary schools—to make comments or objections. My right honourable friend will take these into account and will decide the application on its merits..
There has been considerable debate about the proposed method for testing parental opinion. The Government's view is that a simple majority of those
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voting in a ballot should determine the outcome of that ballot. But, at the Committee stage your Lordships agreed to an amendment, moved by the right reverned Prelate the Bishop of London, which introduced a much higher hurdle; namely, that a majority of all those eligible to vote should support an application for grant-maintained status before the application could go forward for consideration. The difficulty is that that amendment would in effect enfranchise the apathetic. Abstainers would have equal weight with opponents in blocking the prospect of change. All this would happen in a ballot which does not itself decide the issue but only provides the trigger for the case to be presented to the Secretary of State..
However, having said that, I fully accept that noble Lords did express—on the amendment moved by the right reverend Prelate—concern about the ballot procedures, though not necessarily being opposed to the concept of grant-maintained status in itself. Indeed, your Lordships voted overwhelmingly on 12th May in favour of the principle of it. However, I think that some of your Lordships were concerned about means rather than ends..
So it was that the right reverend Prelate in moving the amendment suggested that as the Bill stood it remained possible for any small group to press certain parents to exercise their vote to ensure the necessary majority in a minority vote. I think it is fair to say that the right reverend Prelate, and indeed some of your Lordships, made very clear the desire to prevent small groups of parents from hustling a ballot through before the main body of parents had really woken up to what was going on and had formed a view on the matter, either for or against..
I recognise the concern of many noble Lords on that point. The amendments I now put forward provide for a voting procedure which ensures that if half the parents do not show by their votes that they are fully aware that a ballot is being held, then there must be a second ballot. Therefore, Amendment No. 9 provides for a dual ballot arrangement..
Where a ballot is held and more than half the registered parents vote, the result will be determined by a simple majority of those voting. But if fewer than half the parents vote a second ballot will have to be held within 14 days of the result of the first one being declared. Ballot papers will again be sent to all the parents, this time with a statement explaining why the second ballot is necessary and reminding them of what they are being asked to decide. The result of the second ballot will again be determined by a simple majority of those voting; but this time it would be conclusive. I hope that your Lordships will agree that the amendment will provide a clear and decisive safeguard against a small group of committed parents being able, so to speak, to hijack a school..
The other amendments that we have tabled clarify a number of practical issues upon which noble Lords have expressed interest. In particular, Amendment No. 9 makes it clear that the list of parents held on a school's admissions register will form the basis for the electoral roll needed for any ballot. The amendment emphasises the crucial point that it is for the governing body to make a determination in any case

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where a question is raised, and only where a question is raised, about a person's claim to be a parent. In the vast majority of cases no such question is likely..
For some time now governors have been in exactly that position in respect of those eligible to vote in the election of parent governors for their school. I am not aware that that has caused difficulties. The Government's guidance will remind school governors that the education Acts define a parent as including a guardian and any person who has actual custody of the child, and that just occasionally there may be circumstances where more than two people have parental rights in respect of a particular child.
I hope that your Lordships will agree that the amendments respond to the concerns expressed in your Lordships' House on the original amendment moved by the right reverend Prelate the Bishop of London by making it possible for a small group of parents to hurry a school into an application for grant-maintained status without the main body of parents fully appreciating the consequences; but at the same time the amendments maintain the principle that those who wish to exercise their right to vote are entitled to have a decisive influence on the outcome. I commend the amendment to your Lordships.
Moved, That the House do agree with the Commons in their Amendment No. 2 to the Lords Amendment No. 1.—(Lord Belstead.)
Baroness David: My Lords, I thank the noble Lord the Leader of the House for his explanation. We had expected that the Government would come up with some sort of compromise at this stage, but we are not at all satisfied with the compromise that has been offered. It is true that there is a minor improvement, but it is not enough to be satisfactory. We hoped that something rather more generous would have been offered. It still remains that if 50 per cent. of the parents vote on the first ballot, 25 per cent. plus one parent could determine this extremely important issue.
On the second ballot there could be just two or three parents voting—two for and one against. That is what we were objecting to in the Bill as it was originally drafted. On reading Hansard of another place for Monday last I noticed that there were a number of Conservative Members there who were not entirely happy with the solution offered. Sir Hugh Rossi and Sir Charles Morrison pointed out that 25 per cent. plus one was a small percentage of parents to make this extremely important change in a school's constitution.
Sir Hugh Rossi pointed out that while the Secretary of State was at the Department of the Environment, before a building society's constitution could be changed there was a requirement that 75 per cent. of the members had to vote. Surely a change in the constitution of a school is just as important. I should have thought that it was more important. Our amendment asks for 50 per cent. plus one of those eligible to vote..
I must also remind the House about the Housing Bill now going through Parliament. A private landlord cannot take over a council estate if a
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majority of those eligible vote against. That is more than 50 per cent. We asked for just over 50 per cent..
Last Monday, Dr. Keith Hampson tried to get the Secretary of State to say that it was unlikely that he would accept a decision taken by a simple majority of a 50 per cent. turn-out in the first ballot, but he would not commit himself. The Secretary of State said that he was confident that there would be a big turn-out. If so, why not accept our amendment?.
I suspect that the only reason is that the Secretary of State is desperate to get grant-maintained schools on the go. He continually made the point that simple elections are often determined on minority votes. He quoted local councillors, but this is a different situation. Local councillors can be put out of their seats after three or four years. The decision about a school opting to become grant-maintained is irreversible. We turned down a suggestion that schools should be able to opt in after a period of years. This decision is therefore for good. That is an important consideration..
It is unsatisfactory that there is still no proper definition of a parent. My noble friend Lord Morton may say a word or two more about that. It can be unfair. There could be four or five parents per child. On 12th May in this place (at col. 1326 of Hansard) the noble Lord, Lord Trefgarne, admitted that there may be circumstances where a child has more than two parents. We preferred our plan, where for one child there was one parental vote. Unfortunately that amendment was not accepted. The unsatisfactory system remains. Therefore there is all the more reason to ask for a straight majority of those eligible to vote before a school can become grant-maintained.
3.15 p.m.
The Lord Bishop of London: My Lords, I appreciate the way in which the Government have moved in this matter. However, not all the points made by the supporters of my original amendment have been met as a result of the action taken in another place. The question for me is, have enough points been met to make it unwise for your Lordships' House to continue to press the matter? I shall identify the main points on which there has been movement..
A small but significant point is that we now know that as the ballots will be organised by the Electoral Reform Society not only will the numbers of those who vote be published but also the number of ballot papers distributed. That fact was not made clear to us before. I believe that it is significant. 'We had hoped that there would be a requirement for such information to be sent to the Secretary of State. We believe that that point is met. I trust that the Minister will be able to confirm that what I have just said is correct..
Secondly, we have been told by the Secretary of State that the extent of the turn-out will be a material factor in the consideration of any application for grant-maintained status and is bound to weigh heavily with the holder of his office. That again is an assurance we have not previously had. It may be not as many of us had wished, but it is more than we had before. It certainly contributed to a change of mind by some Members of another place..

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Thirdly, and most important, we have had the introduction of the second ballot. That will go a long way towards countering the possible apathy and ignorance in certain groups of parents which I earlier identified as a source of potential danger. The invitation to any small group of extremists to exercise undue influence will not be as open as I believe it could have been under the original proposal. It will alert parents to such a situation by requiring a second ballot. I am therefore inclined to urge your Lordships not to defy the wishes of the other place, with all the constitutional difficulties that that would entail..
However, there are two points upon which I seek further assurances from the Minister. The first relates to timing. The point was raised in another place. There was some talk of a specific time during which the decision would have to be made by the Secretary of State. He will have to decide a number of tricky cases. By encouraging the rejection of your Lordships' amendments he has increased the number and trickiness of the decisions he will have to make. Will he be able to handle all the applications sufficiently speedily to avoid the "planning blight" which will come over a school whose application is in the pending tray? I hope we can have some assurance on that..
Secondly I hope that we can be assured that the Secretary of State will not, "through the publication of guidance"—that is a quotation from Hansard—redraw the franchise in ways which have not been the subject of parliamentary scrutiny. His remark to his right honourable friend Mr. Timothy Raison in last week's debate in another place suggested that he might have some such intention in mind. I hope we can be told this afternoon that that is not the case, because I believe to change the franchise without parliamentary debate would be very unfortunate..
With those observations I can only say that I think the wisest course is to accept these amendments, which go a considerable way to meeting the points I had in mind when I proposed my amendment earlier.
Baroness Seear: My Lords, we on these Benches are not in favour of this compromise which the Government have put forward. The proposal about the ballot still makes it possible that it could get through on 25 per cent. plus one. That, for what is an irreversible decision, we think is nowhere near enough. If the Government had been prepared to make the decision reversible this might be a different matter. But we are forced to believe—and this is confirmed by the report coming from the Centre for Policy Studies this morning—that the Government are determined to have grant-maintained schools and to undermine the position of local authorities in relation to education. That being so, we are extremely unwilling to accept this compromise. After all, the second ballot could be done on a very small number of people indeed. So I am afraid that we cannot accept the advice put forward by the right reverend Prelate the Bishop of London.
The Earl of Halsbury:My Lords, I support this amendment for one very good reason. It is that in a
16
certain sense I thought of it myself. I know I did because it was my birthday and I gave it as a sort of birthday present in reverse to the noble Baroness for her to think about it. She has perpended on it and come up with this compromise.
All design is a compromise. In a situation like this we cannot have a set of rules which pleases everybody. I hope that the House will follow the lead given by our noble Leader and accept this amendment.
Lord Boyd-Carpenter: My Lords, I hope that the House will, as the noble Earl has just said, follow the advice of the right reverend Prelate and accept this amendment. The Government have obviously made a considerable effort to meet the views which were expressed in your Lordships' House. By introducing a system of two ballots I think they have met the very real danger which was mentioned at an earlier stage of a small group of zealots pushing a motion through in the absence of the great majority of parents..
Where there are two ballots, as there will be under this amendment, it would be a singularly apathetic parent who took part in a vote on neither of the ballots. One could perhaps say that parents whose views were so unenthusiastically held that they would not bother to vote on two occasions perhaps do not deserve to have their views taken over-seriously. I hope therefore that your Lordships will accept this amendment..
There is the further point which I think has not been fully stressed today that neither of these ballots is final. If they both go, or if the second one goes, in favour of opting out, the matter still goes to the Secretary of State, with whom the final decision lies. I do not think your Lordships can envisage any Secretary of State who would take a decision on a matter of this sort without looking carefully at the ballot figures. If there really were a very small vote, albeit favourable, it seems at least possible that a sensible Secretary of State would send the matter back. I hope and believe that that is so..
I very much agree with the view that has just been expressed and I hope in general that the Secretary of State will act quickly when a proposal is put up to him. Otherwise, as one noble Lord has said, a kind of planning blight can descend on the school. We have had a great deal of discussion on the matter. It has gone to and fro between your Lordships' House and another place. The Government have come forward with a good compromise acceptable to the right reverend Prelate who himself made the original proposal. I hope that your Lordships will go along with it.
Earl Baldwin of Bewdley: My Lords, when the Secretary of State argues that proposals for a school opting out are among the most important events in the history of that school and that it would be absurd to imagine that they could go through under cover of darkness, so to speak, without everyone locally being aware of the issues, I think he is right. I do not believe that this is a major problem. Those who still have worries on that score will of course be reassured by what was put forward last week in another place..

17
To me the new procedures still miss the main points of concern in this whole business and in this I regretfully differ from the right reverend Prelate the Bishop of London..
The first point is that a school which is hoping to launch out on its own needs, I should have thought, to demonstrate a strong degree of parental commitment if it is to be a success. It is not that one is assuming, in opposing the Government's voting arrangements, that those who abstain on a low poll will necessarily be against opting out. It is that one is looking for a lot more than apathy in laying the foundations for a new type of school whose raison d'être is supposed to be the expressed wishes of concerned parents—all those parents who, we were told in the run up to this Bill, were longing to get their hands on local schools..
Under this new dual ballot system it will still be possible, as has been said, for a very small minority of parents to change the status of the school. Of course, as the Secretary of State stressed again last week, he can use his judgment in such a case to disallow the proposal. But it would surely be more satisfactory on all counts if there were provided for in this Bill the sort of majority that made it unnecessary for a Secretary of State in Whitehall to have to form a view—however well advised—as to what the local people really meant..
In passing, I do not believe the argument about "fancy franchises" is worth a moment's consideration. The Secretary of State has voted for them himself in the past. In some instances, such as voting people into posts, a simple majority of those voting is appropriate. In others, such as changing the ground rules of institutions, a stiffer hurdle is quite usual. The choice of ballot is matched to the case in hand. If people are thinking of creating a new type of school, it seems to me pretty obvious that the more demanding approach is the more suitable one in terms both of common practice and of common sense. In this context 50 per cent. of the electorate is not an unreasonable target..
The second major point of concern which the new proposals do little to allay is the irrevocable nature of the act of opting out. The noble Baroness, Lady David, has already drawn attention to this. If the amendments which were put forward in your Lordships' House at an earlier stage, allowing a school to opt hack in at some stage in the future, had been agreed to, I myself should not have been nearly so concerned to spend time and energy getting the voting arrangements right in the first place. I still cannot understand why parents should have the choice of loosing the ties with the local education authority but should not have the choice of picking them up again if they decide it is right for their school to do so. I do not believe that the motives for this lack of symmetry can be educational..
However, since this is the situation with which we are faced, it is doubly important to make sure that the decision to leave the local orbit and to remain outside that orbit forever is taken with the kind of community backing which will augur well for the period beyond the first few years when the initial flush of enthusiasm may have faded and the grass may
18
possibly not look quite so green. That I believe is one of the reasons why your Lordships voted to improve this part of the Bill and why I hope noble Lords may do so again.
Lord Goodman: My Lords, when I came here this afternoon I did so in the obviously mistaken belief that I had suggested this amendment. However, it is quite clear that there are other rivals to that claim! I may say I am only too happy to recognise it as a Cross-Bench amendment..
Perhaps I may say—and for fear of being torn to pieces by the Opposition I have noticed carefully where the exit is—that when I made the suggestion it was not because I had any great enthusiasm for opting out. I entirely agree with the noble Lord, Lord Adrian, that the capacity to opt out should be associated with the capacity to opt in again. However, that is another question. I made the suggestion because I claim—often mistakenly—that I am a realist.
I recognise that with the enormous majority of beardless youths in the other place and with the vast assembly of people here who may for all we know at this moment be sheltering where Guy Fawkes was some while ago, the prospect of retaining this amendment was unrealistic. That being so, the suggestion seemed to me at least a considerable improvement on the notion that a school could opt out on a single ballot. A number of the things that have been said are terribly true. One that was untrue was the analogy with the Companies Act or with building societies, which stipulate a 70 per cent. majority. If every shareholder had one vote, no resolution could ever be passed at a company meeting. It is only because there are a vast number of votes in single hands that a resolution is passed..
This provision seems to me to be an improvement. Occasionally when I make a suggestion I find that it is not adopted in toto, which is extremely humiliating. But my objection concerns the 14 days. That appears to me to be much too short a period in which to allow parents to recognise the significance of what has taken place. I ask the Government to reconsider that timing. It seems to me to be wholly unreasonable. In fact it defeats the benefit of this amendment and, to some extent, although I would riot suggest any absence of bona fides, it suggests that adequate consideration has not been given to providing it as a safeguard..
I started by saying that I was no great believer in opting out. I must go further and make a thoroughly agnostic assertion. I am no great believer in parent power in schools or educational institutions. Having spent 10 years as the master of an Oxford college I must say that, rather disappointingly, I cannot remember a single curricular suggestion that ever came from a parent. That may be quite irrelevant to this situation, but if we are depending on parents to make successful schools, we may still find that we are thoroughly disappointed in that regard..
As regards the realities of the situation, it would be unrealistic not to accept this amendment with, I hope, reconsideration by the Government of the time factor involved. I urge the Government to consider

19
whether 14 days does not give a spurious illusion of safety which is not there at all.
3.30 p.m.
Baroness Young: My Lords, when we debated this matter very fully on 12th May I was one Member of the House who supported the Government in their original proposals. But it was quite clear on that occasion, and certainly on rereading the debate, that there was a great deal of concern about the matter in your Lordships' House. I think that that concern was echoed in another place when this matter went back for consideration on that occasion..
Therefore, I greatly welcome what the noble Lord the Leader of the House said this afternoon in moving this government amendment. I am very pleased indeed that the right reverend Prelate the Bishop of London has accepted it. The noble Lord, Lord Goodman, and the noble Earl, Lord Halsbury, said that they were also prepared to accept it. I think it is a worthwhile compromise. Although I realise that the noble Lord, Lord Goodman, thinks that 14 days is a very short period of time, nevertheless, if one considers the reality of what could happen under these circumstances, one realises that there would be a very great deal of interest and publicity while all this was going on..
We need to recall what my noble friend Lord Belstead said in moving this amendment about the various processes which have to be gone through before a school opts out. It does not just rest on the parents' ballot. Today, with the interest of the press in local authority activities and school activities, there would be a great deal about such a matter in the press, quite apart from interest among the parents themselves. I have no doubt that a great many leaflets would circulate about it. So there would, quite properly, be a great deal of interest in this important matter..
I suspect that between the two ballots, if the second ballot proved to be necessary, there would be a great deal of publicity and interest. I find it extremely difficult to believe that people would be unaware of what was going on and unable to take a decision about it..
One must go back to look at the principles under which a school might consider opting out. I find it difficult to believe that a school would take this decision—particularly as your Lordships have drawn attention to the fact that, having decided to opt out, a school cannot opt back in again—without considering the matter very carefully and without being very concerned about the reasons which led it to disagree with the local education authority and made it wish to opt out..
I believe that this is a very fair amendment. I am very grateful to my right honourable friend the Secretary of State for bringing it forward to your Lordships' House. The amendment meets the very real concerns that were expressed on another occasion and I hope that your Lordships will support it.
Lord Morton of Shuna: My Lords, I suggest that the amendment that was passed by your Lordships is a better amendment to the Bill as it was originally than the amendment we now have to consider. The difficulties are fairly great. Before any issue of opting out is considered, one must remember that the register of parents tends only to consist of the name of a person with whom the school could get in touch if anything happened to a particular child..
As one sees from the publication Education of 22nd July, it appears that even now various headmasters are not aware of the duty of keeping a register, and do not have one. Therefore, there is a difficulty as regards how accurate a register is anyway..
Then one has the problem of what constitutes a parent. We have discussed this matter in your Lordships' House at my instigation on several occasions. Who is to be recognised as the parent of a child when that child's real parents are divorced and the child is living with one step-parent and one natural parent or is staying with a grandmother or with grandparents at the time? The governing body under Amendment No. 9 on the Marshalled List apparently has the duty to determine who is a parent. Amendment No. 9 inserts a new Section 10A. That section states that a person eligible to vote must be:
"known to the governing body to be a parent of a registered pupil at the school".
One must ask oneself what the words "known to" mean as regards a governing body. The new section further states that a person eligible to vote must be
"named as a parent of such a pupil"..
So, if I go along to register my child and I put him down on the list, how will the governing body know that I am the parent, especially when, according to the 1944 Act, a parent includes a guardian and every person who has the actual custody of the child or young person. How will the governing body—not the head teacher or the class teacher—know whether I am a parent? What is meant by the word "know"?.
Having overcome the difficulty of finding out who the parents on the register are to be during that fortnight, the governors have to make a decision. Apparently there is no possibility in the Bill of any appeal to anybody else. Do the Government intend that there should be no judicial review? If there is to be judicial review, what happens to the timetable? Who decides the matter? I can assure the Government that some parents will disagree with governing bodies as regards whether or not they should be on the register. I am informed that there already is at least one litigation over the election of parent governors. There may well be difficulties and litigation over the right or denial of a right to be on the register..
I agree with the noble Lord, Lord Goodman, that the 14 days is an impossible period of time. If one takes a place such as Barrow-in-Furness where the main works has a holiday of a fortnight and where the schools have the same holiday and one considers the scheme, one will see that the governors or the group of parents who are anxious to have such a ballot can decide to have their requirement delivered just before the start of that holiday period, thus denying a large majority of parents any chance of

21
challenging or asserting their right to receive a ballot paper.
Lord Boyd-Carpenter: My Lords, perhaps the noble Lord will allow me to intervene. Surely those are exactly the circumstances in which the Secretary of State would refuse the application.
Lord Morton of Shuna: My Lords, that may well be so, depending on who the Secretary of State is. But it completely destroys parental choice and makes it a question of the choice of the Secretary of State. A school in one part of the country may have a certain level of complaints that parents are deprived of a chance to get on the register; a different situation could arise the following month with a school elsewhere. If the Secretary of State allows one and not the other, a pattern of decisions will develop, that is not consistent. We shall be left with a situation in which the Secretary of State choses which local education authority he likes, which he does not like, which type of school he lets out and which he does not let out. That is a denial of parental choice..
I suggest that the timetable is totally unworkable. There is no discretion to vary the dates and the time requirements because of holidays. That is an obvious and serious deficiency in the Bill as it stands. If a governing body receives a request, a ballot must be held within three months. The governing body cannot hold a ballot until 14 days have elapsed. Therefore, the ballot has a period of roughly 10 weeks. There could easily be a situation where, if there must be a second ballot, it will fall at Christmas or Easter, or in the summer holidays. That would be inappropriate because the ballot should be held in a period when the school is in session so that people will know about it..
For example, a school goes on holiday for seven or eight weeks in the summer—as most schools do— beginning on 22nd July. It may get a request for a ballot on 15th June. It must therefore allow a fortnight to settle the register. That takes until the beginning of July. There will then be a period for typing of envelopes and sending out of documents. No period is set for the time a postal ballot will take. However, anything under a week or 10 days would surely be wrong. Ballot papers will be returned just before the school goes on holiday and a second ballot will take place. It is totally inappropriate to hold such a ballot if all the parents are on holiday..
That type of situation is almost bound to occur every now and again. It is a matter which has not been thought through. Therefore, a straightforward return to a provision establishing that more than 50 per cent. of parents wish to opt out would be the appropriate response. I suggest that the Commons amendments be disagreed with.
Lord Ritchie of Dundee: My Lords, I support what has been said the noble Lords, Lord Morton of Shuna and Lord Goodman, concerning the matter of 14 days. The process is a drastic one. For a school to opt out of local authority control is to undermine the principles of the 1944 Act. It is also irreversible. In those circumstances, it should be a difficult decision and not one which it is too easy for parents to make..
22
An added difficulty is that the Government have exposed themselves to the charge that they use parents' views only when it suits them. That was painfully evident in the London parents' ballot. There was an overwhelming vote on the part of London parents to retain the ILEA until suitable replacements could be found. That ballot was ignored by the Government. In the circumstances, I should have thought that it would be in the Government's own interest to show that they are concerned with the opinions and wishes of parents. They should provide at the very least that a reasonable amount of time is allowed between the proposed ballots.
3.45 p.m.
Lord Belstead: My Lords, the debate on the amendments follows an amendment moved by the right reverend Prelate the Bishop of London at the Committee stage of the Bill when concern was expressed about balloting procedures for testing whether parents wish to apply for grant-maintained status for their school under the Bill. The debate which we are having concerns the government response which I put forward at the beginning of our debate to the concerns expressed by your Lordships as regards the dual balloting arrangement set out in the amendments. I am grateful to the right reverend Prelate for his support, which was qualified by questions he asked. I am also grateful to the noble Earl, Lord Halsbury, and the noble Lord, Lord Goodman, who vied in claiming the parenthood of this set of amendments..
The danger to which several of your Lordships understandably drew attention was that a small but well organised group of parents might rush through a ballot before the main body of parents had fully grasped the importance of what was at stake. The amendments which I ask your Lordships to agree today provide that there must be a second ballot if fewer than half the parents voted on the first ballot. I believe that that is a powerful safeguard. It means that no small group of parents will be able to preempt the debate. I am particularly grateful to my noble friend Lord Boyd-Carpenter for saying so, roundly and clearly..
The difficulty I face is that noble Lords of the official Opposition and of the Social and Liberal Democrats have not welcomed the amendments. I am surprised at their opposition to the principle of a simple majority vote by secret postal ballot. Unlike examples of other ballots which I believe the noble Baroness, Lady Seear, gave, this ballot will not finally decide the issue. The point was also made by the noble Baroness, Lady David. However, as my noble friend Baroness Young rightly said, the ballot simply decides whether an application ought to come forward from the governors for public scrutiny, including statutory rights of objection and final decision by the Secretary of State. The extra safeguard built into the amendments is that in triggering the procedure for an application for grant-maintained status, it will be virtually impossible for a small minority of parents to prevail against the majority..

23
The right reverend Prelate asked for more information about ballots. I should like to give an assurance that the Electoral Reform Society will give my right honourable friend details of the results of every ballot. The Secretary of State therefore will be able to see the strength of parental support. My right honourable friend will decide all applications for grant-maintained status as quickly as possible..
Turning to a point on which there was, in a sense, conflicting advice, the right reverend Prelate was concerned that the dual balloting arrangements would build in delay and the noble Lord, Lord Goodman, suggested that the period between ballots should be longer. I believe that the time period of 14 days is the best way of assuring that there is time to conduct a second ballot properly. After all, that is the period of time which is used as an interim in the French presidential elections. At the same time, it ensures that the momentum of the issue will not be lost. The parents will receive a statement with the second ballot paper explaining what it is all about..
Finally, perhaps I may just say to the right reverend Prelate in response to his third and very important question that there is no question of the franchise being changed once the Bill has become law. Guidance will only explain more fully what the legislation requires..
I think that the only other matter which I have to deal with is the series of questions put to me by the noble Lord, Lord Morton of Shuna. He was worried about what a parent is. I am sorry that he is worried about that because it has been enshrined in Section 114 of the 1944 Education Act, and I reported to your Lordships exactly what that section said.
Lord Morton of Shuna: Perhaps, the noble Lord will allow me to intervene. Section 114 does not say what a parent is; it says what a parent includes.
Lord Hailsham of Saint Marylebone: A legal quibble, my Lords.
Lord Belstead: My Lords, perhaps I may just refer to the effect of Section 114. The definition of parent includes a guardian and every person who has the actual custody of the child. In some cases a child may therefore have more than two parents it is true. But governors will not have to examine parents' credentials. Only if a question is raised as to a parent's eligibility to vote will the governing body have to reach a decision. It will be able to look—despite the difficulty it is giving to the noble Lord—to Section 114. That section, incidentally, has been guiding governing bodies in deciding who can vote for parent governors of schools for a few years now since some previous legislation by the present Government was passed through both Houses..
Perhaps I may also say that if a parent believes that the governors have acted unreasonably in determining eligibility to vote, complaint can be made to the Secretary of State under Section 68 of the 1944 Education Act. If I may say so, I think that that is enough about the details.
Lord Peston: My Lords, it is nearly enough. However, one is rather intrigued by Amendment No. 9 in which the words,
"known to the governing body".
appear. For some of us it is very difficult to understand the connotation of "known" in this context. Does it have a specific meaning? Does it have an operational significance in the sense that the governing body can say "We do not know you to be a parent and therefore you cannot vote"?
Lord Belstead: My Lords, it means in effect that the burden of proof in such cases will be on the person claiming to be a parent. It will certainly not be necessary for the governors to go looking for parents, as some noble Lords have suggested. The amendments also provide that parents should have 14 days in which to check that they are on the list once it has been formally decided that a ballot should be held..
I should like to add just one last point. I think that it is fair to say that the opposition to this amendment for a dual balloting arrangement—which will ensure that half the parents of children in a school have to show by their votes that they are aware that a ballot is taking place. otherwise the whole thing is null and void—comes from noble Lords in the Official Opposition and on the Social and Liberal Democrat Benches on wider grounds, becase they do not want grant-maintained schools. We live in a free country and noble Lords opposite have every right to take that view. But I have every right to finish by reminding your Lordships what it is that we are talking about..
This debate is about only one stage in the very searching procedures by which a school can seek to become grant-maintained. No school will be forced to become grant-maintained. Those which apply will be those which believe that they can do a better job outside local authority control. Parents, governors and children will obtain no special privileges if their school becomes grant-maintained. However, they will have a much greater say in the way that the school is run. For the first time local authorities will have to compete for the approval of both parents and governors in the knowledge that, if they fail to satisfy, those parents and governors may choose to take their custom elsewhere. That is a freedom which I believe will be good for the education system..
These amendments will finally pave the way with absolute fairness for parents to have that freedom. I commend the Motion to your Lordships.
Lord Dormand of Easington: My Lords, before the noble Lord sits down I wonder whether he will deal in a little more detail with what his noble friend Lord Boyd-Carpenter told your Lordships was a very important point. We are not just talking about two ballots; we are talking about a third stage, which the Leader of the House has mentioned—namely the decision (which we presume is final) of the Secretary of State. I am sure that some of us would consider that that is a mere debating point and that the Government have made their view absolutely clear by saying that they really want a majority of any kind, however small, even though a second ballot is

25
held. Would the Leader of the House care to give an estimate of the number of decisions which the Secretary of State is likely to reverse?
Lord Belstead: My Lords, my answer to that question is a resounding negative. However, let me give a rather more satisfactory reply to the noble Lord. A point was raised by the noble Lord, Lord Morton, about what would happen if a difficult time was selected for the balloting procedure, for instance with Christmas coming. On that point, governors will need to plan ahead. The guidance which will be sent out by my right honourable friend's department will ensure that governors have to plan ahead. The provisions of this Bill allow him to require a fresh ballot if the Secretary of State is not satisfied that reasonable procedures have been followed. So in meeting, the point which the noble Lord has put to me, let us always remember that at the end of the day there is the decision of the Secretary of State and it has to be reasonable.
Lord Goodman: My Lords, before the Minister sits down, I wonder whether I may ask him a question which might help some of us in relation to the ultimate outcome. Will he be good enough to tell us what is the magic of 14 days and why the same magic is not to be found in 21 days or 28 days?
Lord Belstead: My Lords, a period of time had to be selected. Quite obviously there is a need to maintain momentum so that people remember what it is all about. There has already been the run-up to the first ballot. Leaving another fortnight until the second ballot appeared to the Government to be a reasonable period of time to put to another place—and I put it now to your Lordships' House—and yet a period of time in which the issues would not be forgotten.
3.58 p.m.
On Question, Whether the House do agree with the Commons in their Amendment No. 2 to the Lords Amendment No. 1.
Their Lordships divided: Contents, 173; Not-Contents, 85.

DIVISION NO. 1

CONTENTS

Alexander of Tunis, E.

Brougham and Vaux, L.

Allerton, L.

Broxbourne, L.

Arran, E.

Burton of Coventry, B.

Auckland, L.

Butterworth, L.

Aylestone, L.

Caccia, L.

Barber, L.

Caithness, E.

Beaverbrook, L.

Camden, M.

Belhaven and Stenton, L.

Cameron of Lochbroom, L.

Beloff, L.

Campbell of Alloway, L.

Belstead, L.

Carnegy of Lour, B.

Benson, L.

Carnock, L.

Bessborough, E.

Carr of Hadley, L.

Blatch, B.

Cathcart, E.

Blyth, L.

Cawley, L.

Borthwick, L.

Chelmer, L.

Boyd-Carpenter, L.

Colnbrook, L.

Brabazon of Tara, L.

Constantine of Stanmore, L.

Braye, B.

Cottesloe, L.

Brightman, L.

Crathorne, L.

Broadbridge, L.

Croham, L.

26

Cullen of Ashbourne, L.

Munster, E.

Dacre of Glanton, L.

Murton of Lindisfarne, L.

Davidson, V. [Teller.]

Nelson, E.

De Freyne, L.

Newall, L.

Denham, L. [Teller.]

Nugent of Guildford, L.

Diamond, L.

O'Brien of Lothbury, L.

Dundee, E.

Orkney, E.

Eccles, V.

Oxfuird, V.

Eden of Winton, L.

Pender, L.

Effingham, E.

Penrhyn, L.

Elibank, L.

Perth, E.

Ellenborough, L.

Peyton of Yeovil, L.

Elles, B.

Plummer of St. Marylebone, L.

Eliot of Harwood, B.

Elliott of Morpeth, L.

Porritt, L.

Faithfull, B.

Radnor, E.

Flowers, L.

Rankeillour, L.

Fortescue, E.

Reay, L.

Fraser of Kilmorack, L.

Reigate, L.

Gainford, L.

Renton, L.

Glenarthur, L.

Ridley, V.

Goschen, V.

Rodney, L.

Gray of Contin, L.

Romney, L.

Greenhill of Harrow, L.

Rugby, L.

Gridley, L.

Sainsbury, L.

Grimthorpe, L.

St. Davids, V.

Hailsham of Saint Marylebone, L.

St. Germans, E.

St. John of Fawsley, L.

Halsbury, E.

Saltoun of Abernethy, Ly.

Hardinge of Penshurst, L.

Sanderson of Bowden, L.

Harmar-Nicholls, L.

Seebohm, L.

Havers, L.

Shannon, E.

Henley, L.

Shaughnessy, L.

Hesketh, L.

Sheffield, Bp.

Hives, L.

Skelmersdale, L.

Hood, V.

Somers, L.

Hooper, B.

Soper, L.

Hunter of Newington, L.

Southborough, L.

Hylton-Foster, B.

Stanley of Alderley, L.

Ilchester, E.

Stevens of Ludgate, L.

Johnston of Rockport, L.

Strathspey, L.

Joseph, L.

Sudeley, L.

Kaberry of Adel, L.

Swinfen, L.

Killearn, L.

Terrington, L.

Kimball, L.

Teviot, L.

Kinnaird, L.

Thomas of Gwydir, L.

Lauderdale, E.

Thomas of Swynnerton, L.

Layton, L.

Thorneycroft, L.

London, Bp.

Thurlow, L

Long, V.

Torrington, V.

Lucas of Chilworth, L.

Trafford, L

Luke, L.

Trefgarne, L.

Lurgan, L.

Trumpington, B.

Lyell, L.

Ullswater, V.

Mackay of Clashfern, L.

Waldegrave, E.

Macleod of Borve, B.

Walston, L.

Mancroft, L.

Watkinson, V.

Manton, L.

Westbury, L.

Margadale, L.

Whitelaw, V.

Marley, L.

Willis, L.

Marshall of Leeds, L.

Winterbottom, L.

Masham of Ilton, B.

Wise, L.

Merrivale, L.

Wolfson, L.

Mersey, V.

Wyatt of Weeford, L.

Middleton, L.

Wynford, L.

Monk Bretton, L.

Young, B.

Morris, L.

Young of Graffham, L.

Mowbray and Stourton, L.

NOT-CONTENTS

Ampthill, L.

Carmichael of Kelvingrove, L.

Ardwick, L.

Carter, L.

Baldwin of Bewdley, E.

Cledwyn of Penrhos, L.

Banks, L.

Cocks of Hartcliffe, L.

Birk, B.

Darcy (de Knayth), B.

Blackstone, B.

David, B.

Bonham-Carter, L.

Dean of Beswick, L.

Boston of Faversham, L.

Donaldson of Kingsbridge, L.

Bottomley, L.

Dormand of Easington, L.

Briginshaw, L.

Elwyn-Jones, L.

Bruce of Donington, L.

Ennals, L.

27

Ewart-Biggs, B.

Morton of Shuna, L.

Falkender, B.

Nicol, B.

Falkland, V.

Ogmore, L.

Fisher of Rednal, B.

Oram, L.

Foot, L.

Paget of Northampton, L.

Gallacher, L.

Peston, L.

Galpern, L.

Pitt of Hampstead, L.

Graham of Edmonton, L.

Ponsonby of Shulbrede, L. [Teller.]

Grey, E.

Grimond, L.

Rathcreedan, L.

Harris of Greenwich, L.

Ritchie of Dundee, L. [Teller.]

Henniker, L.

Rochester, L.

Houghton of Sowerby, L.

Ross of Newport, L.

Hunt, L.

Russell, E.

Jacques, L.

Seear, B.

Jeger, B.

Serota, B.

Jenkins of Hillhead, L.

Shackleton, L.

Jenkins of Putney, L.

Shepherd, L.

John-Mackie, L.

Stallard, L.

Kearton, L.

Stewart of Fulham, L.

Kilbracken, L

Stoddart of Swindon, L.

Kinloss, Ly.

Strabolgi, L.

Leatherland, L.

Swann, L.

Listowel, E.

Taylor of Blackburn, L.

Llewelyn-Davies of Hastoe

Taylor of Gryfe, L.

Lloyd of Hampstead, L.

Underhill, L.

Longford, E.

Wallace of Coslany, L.

McIntosh of Haringey, L.

White, B.

McNair, L.

Williams of Elvel, L.

Mais, L.

Winchilsea and Nottingham, E.

Mayhew, L.

Molloy, L.

Young of Dartington, L.

Monson, L.

Resolved in the affirmative, and Motion agreed to accordingly.
4.7 p.m.

LORDS AMENDMENT
3 Clause 51, page 46, line 4, at end insert—
("(5A) Where the governing body of any school are under a duty by virtue of section 50 of this Act to secure that a ballot is held in accordance with this section they shall make available to every person employed to work at the school for inspection (at all reasonable times and free of charge) at the school a document containing the information required by subsections (3)(a) and (5) above to be given to parents of registered pupils at the school.").
The Commons agreed to the above amendment with the following amendment—
4 Clause 51, line 7, leave out ("parents of registered pupils at the school") and insert ("persons eligible to vote in the ballot").
Lord Belstead: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4 to the Lords Amendment No. 3. I have already spoken to these amendments.
Moved, That the House do agree with the Commons in their Amendment No. 4 to the Lords Amendment No. 3.—(Lord Belstead.)
On Question, Motion agreed to.

LORDS AMENDMENT
5 Clause 52, page 46, line 31, after ("majority") insert ("of parents eligible to vote").
The Commons disagreed to the above amendment but proposed the following amendments in lieu thereof—
6 Clause 52, page 45, line 9, leave out from ("is") to ("is") in line 10 and insert ("eligible to vote in the ballot").
7 Page 45, line 19, leave out subsection (4).
8 Page 46, line 11 at end insert—
("(7A) Where in the case of any ballot held in respect of a school in accordance with this section other than one held by virtue of this subsection ('the first ballot') the total number of votes cast in the ballot by persons eligible to vote in the ballot is
28
less than fifty per cent. of the number of persons so eligible, it shall he the duty of the governing body to secure that another ballot (the second ballot') is held before the end of the period of fourteen days beginning with the date immediately following that on which the result of the first ballot is determined.
(7B) In any case to which subsection (7,4) above applies—

(a) the result of the first ballot shall he disregarded for the purposes of section 52(l) of this Act: and

(b) subject to subsection (7C) below, the provisions of this section shall apply as they apply in a case where the governing body of a school are under a duty by virtue of section 50 of this Act to secure that a ballot is held in accordance with this section.

(7C) In any such case—

(a) those provisions shall apply with the omission of subsections (3)(a) and (5); and

(b) subsection (5A) above shall be read as if the information there referred to were the information given for the purposes of the first ballot.").

9 Page 46, line 28, at end insert—
("(10A) For the purposes of this section, a person is eligible to vote in any ballot held in respect of a school in accordance with this section if he is—

(a) known to the governing body to he a parent of a registered pupil at the school: and

(b) named as a parent of such a pupil in the register kept in accordance with the requirements of the 1944 Act in the case of the school, as that register has effect on the date immediately fo11owing the end of the period of fourteen days beginning with the date on which the relevant resolution or request was passed or received by the governing body.

(10B) For the purposes of paragraph (a) of subsection (10A) above, it shall he for the governing body to determine any question whether a person is a parent of a registered pupil at the school; and in paragraph (b) of that subsection the reference to the relevant resolution or request is a reference to the resolution or request (mentioned in section 50(4) of this Act) by reference to which the ballot is required to he held or, where the ballot is a second ballot under subsection (7A) above hr reference to which the first ballot was required to he held.").
10 Page 46, line 31, after ("majority") insert ("of votes cast in the ballot hr persons eligible to vote in the ballot (within the meaning of that section)").
11 Page 62, line 16, at end insert—
("Where section 51(7A) of this Act applies in the case of any such ballot, the references in sub-paragraphs (i) and (ii) of paragraph (b) above to the result of that ballot shall he read as references to the result of the second ballot required hr that subsection.").
12 Page 90, line 40, leave out from ("given") to ("and") in line 41 and insert (".for the purposes of the originating ballot to persons eligible to vote in that ballot (within the meaning of section 51)").
13 Page 206, line 26, at end insert—
("50A. In section 80 of that Act (registration of pupils at schools), after subsection (1) there shall he inserted the following subsection—
'(1A) Without prejudice to the generality of subsection (1) of this section, the prescribed particulars shall include particulars of the name and address of every person known to the proprietor of the school to he a parent of a pupil at the school…").
Lord Belstead: My Lords, I beg to move that the House do not insist on their Amendment No. 5 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 6 to 13 en bloc in lieu thereof..
Moved, that the House do not insist on their Amendment No. 5 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 6 to 13 in lieu thereof.—(Lord Belstead.)
On Question, Motion agreed to.

LORDS AMENDMENT
14 Clause 115, page 113, line 5, at end insert—
("(5A) The Council shall appoint a sub-committee to advise on its functions in relation to universities in Scotland.").
The Commons disagreed to the above amendment but proposed the following amendment in lieu thereof—
15 Clause 115, page 191, line 23, at end insert—
("Scottish and Welsh Committees of Universities Funding Council
9A. The Universities Funding Council shall establish committees under paragraph 9 above for the purpose of advising the Council on the exercise of their functions in relation to universities in Scotland and universities in Wales respectively.").
The Lord Chancellor: My Lords, I beg to move that the House do not insist on their Amendment No. 14 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 15 in lieu thereof..
As your Lordships will recall, the Government have long accepted that there should be a body to advise the Universities Funding Council on matters concerning the Scottish universities. In keeping with the generally facilitative nature of this part of the Bill, we had not thought it necessary to set out this kind of detail on the face of the legislation. This House took a contrary view. As noble Lords will sec, the Government and the other place have accepted the spirit of that amendment. But the alternative that comes back from the other place makes the following changes to the wording that your Lordships agreed. First, it extends the requirement also to the intended Welsh committee of the Universities Funding Council. I feel that that is particularly appropriate because I happened to be in Wales on the day that your Lordships passed the measure in favour of the Welsh committee..
Secondly, the alternative corrects the nomenclature. While the University Grants Committee has sub-committees the Universities Funding Council will have committees. The correct word obviously is "committee". Thirdly, it places the provision more appropriately in Schedule 6 alongside the other provisions relating to committees of the funding council. I beg to move.
Moved, That the House do not insist on their Amendment No. 14 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 15 in lieu thereof.—(The Lord Chancellor).
Lord Morton of Shuna: My Lords, all I wish to say is that I am very glad that the Commons did not disagree to a radical extent with regard to the Scottish sub-committee. As a Scot, and speaking from this Bench, it would be unwise of me to say anything deterimental to the establishment of a Welsh committee.
The Earl of Perth: My Lords, I also have pleasure in accepting the amendment. I think that the wording is a little better than that which we put down—for example, in elevating us to a committee as opposed to a sub-committee. The only difference is the addition of the Welsh committee; and it would be churlish of us to object to that..
30
As your Lordships know, the university education of Scotland is very different from that of either England or Wales. To have Wales also with us in a committee, albeit a different committee, is commendable. It recognises the difference that I have mentioned. We have to thank the Government for recognising the force of our amendment..
Lord Grimond: My Lords, I must apologise, in particular to the noble and learned Lord the Lord Chancellor, for having missed his words. As someone who has put down this amendment three times, or has added his name to it, I should like to thank the noble and learned Lord for having virtually accepted the argument. Like the noble Earl, Lord Perth, I accept the Government's amendment. I am glad that the historic and very important position of Scottish universities is now recognised on the face of the statute, and it has been on most statutes since the Act of Union.
The Lord Chancellor: My Lords, I am grateful to the noble Lords who have accepted the small alterations that we have made in the wording of this provision, while accepting the spirit of what your Lordships had agreed upon.
On Question, Motion agreed to.

LORDS AMENDMENT
16 Clause 115, page 113, line 6, leave out ("payments, subject to such terms and conditions") and insert ("grants, specifying such particular obligations, and subject to such general guidance").
The Commons disagreed to the above amendment but proposed the following amendment to the words so restored to the Bill—
17 Page 113, line 6, leave out ("payments") and insert ("grants'').

LORDS AMENDMENT
17ZA Page 115, line 34, at end insert—
("(3A) Before exercising their discretion under section 115(6) or (as the case may be) section 116(7)(a) of this Act with respect to the terms and conditions to be imposed in relation to any grants each of the Funding Councils shall consult such of the following bodies as it appears to the Council to be appropriate to consult in the circumstances, that is to say—

(a) such bodies representing the interests of relevant institutions as appear to the Council to be concerned; and

(b) the governing body of any particular relevant institution which appears to the Council to be concerned.

(3B) References in subsection (3A) above to relevant institutions arc references—

(a) in relation to consultations required to be carried out by the Universities Funding Council, to universities; and

(b) in relation to consultations required to be carried out by the Polytechnics and Colleges Funding Council. to institutions within the PCFC funding sector.").

COMMONS CONSEQUENTIAL AMENDMENTS. TO THE BILL
The Commons proposed the following consequential amendments to the Bill—
18 Clause 116, page 114, line 22, leave out ("payments") and insert ("grants").

AS AN AMENDMENT TO COMMONS. CONSEQUENTIAL AMENDMENT No. 18
18A Page 114, line 22, after ("grants") insert ("following consultations with the governing body of any institution within the PCFC funding sector").

LORDS AMENDMENTS
19 Page 114, line 27, leave out ("payments") and insert (''grants'').
20 Clause 117, page 115, line 25, after ("any") insert ("grants or other'').
21 Page 115, line 32, after third ("the") insert ("grants or other").
22 Page 115, line 33, leave out ("payments made by").
23 Page 115, line 39, at end insert ("grants or other").
24 Clause 189, page 167, line 29, leave out ("payments") and insert ("grants").
4.15 p.m.
The Lord Chancellor: My Lords, I am sorry to say that what I shall now deal with is just a little complicated. The amendments that were proposed to the Commons amendments came rather late. We have as a result of these late amendments proposed in effect a rewording of them. This has come in the shape of a manuscript amendment. When I say "manuscript" your Lordships will be glad to know that it is not my manuscript but in a much more readable form. There are copies around the Chamber. I hope that most of your Lordships have them. However, I propose to read the amendment through once, fairly slowly. The rules may require me to read it twice, but unless your Lordships feel that it should be repeated, after I have read it perhaps noble Lords will allow me to leave it at that..
I beg to move that the House do not insist on their Amendment No. 16 to which the Commons had disagreed and do agree with the Commons in their Amendment No. 17 to the words so restored to the Bill and in their consequential Amendments Nos. 18 to 24 to the Bill..
Perhaps I could pause there. The effect of that is to substitute in the original wording of the Bill, the word "grant" instead of "payment". Your Lordships may remember that that was a matter of some question. The other consequence is that the phrase "terms and conditions" is restored so that the Bill will read very much as it did before except that "grant" will replace "payment". that will happen not only in relation to the Universities Funding Council but also to the Polytechnics and Colleges Funding Council, because it is right that there should be symmetry in these arrangements. So far the position is relatively simple..
The noble Lord,Lord Swann, and others, have put down various amendments to that system proposing consultation with someone before the terms and conditions are settled. I now refer to the part which is the manuscript amendment and which deals with that; and propose the following manuscript amendment to the Bill in lieu of Amendment No. 16 to which the Commons have disagreed.
"Clause 115, page 115, line 34, at end insert—
(3A) Before exercising their discretion under section 115(6) or (as the case may be) section 116(7)(a) of this Act with respect to the terms and conditions to be imposed in relation to any grants each of the Funding Councils shall consult such of the following bodies as it appears to the Council to be appropriate to consult in the circumstances, that is to say—

(a) such bodies representing the interests of relevant institutions as appear to the Council to be concerned: and

(b) the governing body of any particular relevant institution which appears to the Council to be concerned.

32
(3B) References in subsection(3A) above to relevant institutions are references—

(a) in relation to consultations required to be carried out by the Universities Funding Council, to unversities: and

(b) in relation to consultations required to be carried out by the Polytehnics and Colleges Funding Council, to institutions within the PCFC funding sector.")"

That is the amendment proposed. It would be fair to describe it as I did earlier in the first part and to say that it adds in some detail appropriate machinery for consultation before the terms and conditions, if any, to be imposed are decided upon where the Universities Funding Council or the Polytechnics and Colleges Funding Council are considering exercising their discretion to make grants subject to terms and conditions.
I do not wish to go over the whole of this matter. I hope that these amendments will not be entirely unacceptable to your Lordships. However, there are some background matters that it may be worth putting on record here in connection with these proposals. I believe, as I have said, that your Lordships accepted at Report the amendments by the noble Lords, Lord Swann and Lord Adrian, relating to the powers of the Unversities Funding Council to which I have referred. This was itself amended in the other place on 19th July.
The focus of the debate has, I believe, changed. It now seems to be generally accepted that, as the Croham Report said,
"the mechanisms of conditionality and earmarking available to the University Grant Committee will he required in order to manage public resources effectively".
But, in case there is any lingering doubt, I should restate the arguments briefly.
By way of introduction to them, I should remind the House of two points: the first is that the Bill's provisions on university funding follow the recommendations of the Croham Committee very closely. For the first time, the public funding of universities to the tune of some £1·5on annually will have a proper statutory base. I believe that that is correct. The aim generally has been to carry forward the present non-statutory arrangements into a statutory context. This was never an attack on universities, to which the Government continue to look for a vital contribution to our national life. I personally owe far too much to universities to be any part of an attack on their contribution to our national life. Quite the reverse; the provisions in the Bill in fact represent a rather more constrained set of powers than is available at present.
Legislation affecting universities is rare, so their apprehensions on seeing the funding framework set out in black and white for the first time were not, I suppose, altogether surprising. My second point is therefore to remind the House of the Government's efforts—both in this House and the other place—to reassure the universities and clarify the Bill's provisions. We have sought to do that with the help of your Lordships as the Bill developed in this House.
There remained, though, continuing concerns about "contract funding" which led the House to agree with the noble Lords, Lord Swann and Lord Adrian, that the Universities Funding Council's power to make payments to universities subject to

33
such terms and conditions as the council thought fit should be reduced to a power to make:
"grants. specifying such particular obligations and subject to such general guidance as they think fit".
The other place, with its particular responsibility for Vote expenditure, has made it overwhelmingly clear that this amendment will not provide a sound basis for the annual disbursement of very large sums of' taxpayers' money. While it is ready to accept the use of the word "grants" instead of "payments", it seeks the reinstatement of "terms and conditions". Let me explain briefly why these words are necessary.
First, they provide for proper accountability. The other place, which votes the funds, must be able to be satisfied that they are used for the purposes intended and in accordance with financial proprieties. That must be right. The chief officers of the funding councils will be accountable for that to the Public Accounts Committee. They cannot simply hope that all is well. Appropriate financial memoranda need to be in force as binding conditions of institutions' funding.
The councils must also be able to continue the present practice of earmarking funds—for example, for the engineering and technology initiative and the programme of rationalisation reviews initiated by the UGC. These need the precise and ultimately binding targeting of funds if they are to be satisfactorily achieved. Indeed, without the certainty provided by "terms and conditions", would the Government be ready to provide additional funds for these good purposes?
Finally, the councils must be able to attach broader terms and conditions. The present funding bodies already do this on student number planning targets and the developing emphasis on academic and financial plans as a basis for coherent funding. I believe personally that the academic plan plays a very important part in the development of the organisations in universities.
As to the particular issue of contract funding, I believe that the Government have given satisfactory assurances. As the noble Lord, Lord Butterworth, reminded us on 16th May, the Croham Committee was the first to use the word "contract". Admittedly it put quotation marks around the word to show it was not talking about contracts in the strict sense. I am not sure that I understand exactly what that meant, but it shows that with the quotation marks round it there was a certain doubt about the matter. The Government do not wish to insist on very detailed contract provisions, such as those with which the noble Lord, Lord Swann, entertained us by reciting at Second Reading and on occasion thereafter.
To put the position beyond doubt, let me repeat my right honourable friend the Secretary of State's unequivocal reassurances in the other place last week when these amendments were being considered. He made it clear that the new funding arrangements must not be excessively bureaucratic. That is the essential matter that concerned the noble Lord, Lord Swann. I sought to reassure him without success but the Secretary of State has done it now in these clear words and I hope that this time he will be persuaded.
34
Secondly, the new funding arrangements must respect the distinctive characteristics of higher education. Thirdly, they must not jeopardise the pursuit of research or scholarship and they must not deprive institutions of the flexibility they need to seize new opportunities.
So, in response to the questions posed by the noble Lord, Lord Adrian and others at the Committee and Report stages, all that "contracting" means is a clearer articulation of features already existing in the present arrangements, which is another way of saying what I said when this matter was debated on Report. As an example of this, my right honourable friend cited the UGC's practice over the past two years of agreeing academic plans with universities as a basis for funding. The universities have not resented this, and in many cases have welcomed the clarity provided as a way to organise their affairs.
Turning now to the substance of the amendments before us today, the Secretary of State provided a further reassurance in the other place on 19th July about the funding councils powers. He said that, as a matter of course, the way in which the funding councils will interpret "terms and conditions" will be developed through consultation.
The amendments in the name of the noble Lord, Lord Swann, and other noble Lords seek to reflect the Secretary of State's commitment on the face of the Bill. In all the circumstances, and to secure agreement, the Government are ready to accept such a move. But I should make clear that such consultation would in any case be bound to happen. Any reasonable council will consult appropriately anyway. Indeed, consultation would seem to be a central feature of any "contract" system, for most contracts require some form of agreement. However, I am sure that the noble Lords who have proposed the amendment will not be offended if I say that we believe that our amendments are just a little better drafted. We have had the benefit of parliamentary counsel's help in the matter. I am not in any way criticising the drafting of those other amendments when I say that ours are perhaps more technically accurate. The manuscript amendment in the name of my noble friend Baroness Hooper seeks to overcome these slight drafting difficulties and to ensure the clarity which Parliament must provide.
It seems clear that we should impose identical requirements on the Universities Funding Council and the Polytechnics and Colleges Funding Council. There is no justification for treating them differently. This points to the provision appearing in Clause 117 which deals with supplementary matters affecting both councils.
There is also the question of whom to consult. It seems clear that the answer will not be the same in all circumstances. In relation to terms and conditions attached to funds allocated to a particular institution, consultation would, of course, he with that institution. Where more general conditions are intended to affect all institutions, more general consultation might be appropriate. For example, as I have indicated, the funding councils will want to ensure that institutions are properly able to manage and account for the use of the funds provided; a

35
general condition—for example, one of accountability—affecting all institutions might be appropriate. I imagine that they will want to draw up a standard financial memorandum but also to consult all institutions on it to see whether any particular local circumstances also need to be taken into account.
But there may be cases where consultation is best taken forward with representative bodies such as, in the case of the universities, the Committee of Vice-Chancellors and Principals. I am thinking in particular of discussions about how new funding arrangements will develop. The Government's amendment provides for the funding councils to make these kinds of' decision as appropriate in relation to the particular conditions in question.
In sum Clauses 115 and 116 confer on each council a necessary power to attach terms and conditions. Clause 117 already qualifies that power to ensure that such conditions may not relate to income received from sources other than the councils. That is in response to the amendment of the noble Lord, Lord Adrian. The proposal now is that there must also be prior consultation with the appropriate body.
Against the background of what now seems to be general agreement of the principle involved, I commend to your Lordships the Motion which I have read out in the name of my noble friend Lady Hooper.
Moved, That the House do not insist on their Amendment No. 16 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 17 to the words so restored to the Bill and in their consequential Amendments Nos. 18 to 24 to the Bill, and agree to the manuscript amendment (No. 17ZA) to the Bill in lieu of Amendment No. 16 with which the Commons have disagreed.—(The Lord Chancellor.)
4.30 p.m.
Lord Swann: My Lords, as it is my amendment which is being amended for the second time, if not possibly the third, I should like to say straight away that I warmly welcome the Government's amendment. It does exactly what we wanted and it is phrased much more elegantly than was ours. Not only do I welcome the amendment but, so I discover, do my noble friends Lord Beloff and Lord Halsbury (who added their names to it) and the noble Lord, Lord Adrian, who regretfully must be in the Middle East..
I must confess to a few twinges of disappointment, having spent the weekend thinking up powerful arguments and sharp criticisms which must now be muted. However, I should like to make a few comments in order to point out why we caused so much trouble at various stages of the Bill, particularly at this eleventh hour, why we believe that this is such an important matter and why we so warmly welcome the Government's amendment..
Before doing so I should like to clarify one matter. I was told that it was thought by some people that we were put up to this by the Committee of University
36
Vice-Chancellors and Principals. That is by no means the case. We acted entirely independently..
What is all this about? We have heard a great deal about contracts, with and without inverted commas round them. It began with the report of the noble Lord, Lord Croham, who had inverted commas round his contracts. When it came to the government White Paper it did not have inverted commas round the contracts; when a consultative document was produced it did not have inverted commas either but it contained a massive amount of what I can only describe as suffocating bureaucracy. It is that consultative document which has caused all the trouble..
I shall not go over the various amendments and what has been done to them because the noble and learned Lord the Lord Chancellor has done so much more clearly than I could. However, I should like to describe briefly how the present amendment, borne of our amendment, has come about..
The noble and learned Lord quoted what the Secretary of State said in another place; his unequivocal assurances which have been widely welcomed and his promise that there should be consultation. I believe that he actually called it "meaningful discussions". He is to be congratulated on those promises; they have gone down very well. But—and we believe that it is a serious "but"—Secretaries of State do not last forever; far from it. Their words are not binding on their successors. Therefore, while higher education can feel more confident about the immediate future, there can be no certainty whatever about what will happen as the years go by. Ministers, governments and financial crises will no doubt come and go. Bureaucracy has an alarming tendency of escalating without anyone realising what is going on except its victims..
I remember the noble Lord, Lord Flowers, saying at an earlier stage of the Bill that he believed that it has grown exponentially in recent years. From what I have observed I should hazard a guess that, where universities and research are concerned, it has indeed been growing exponentially, doubling every three years. Exponential growth has a habit of becoming faster; six years makes it fourfold and nine years (the length of time that this Government have been in office) makes it eightfold. I do not necessarily stick to those precise figures, but it is true that bureaucracy has a habit of growing without people noticing. I shall not again regale your Lordships with some of the examples that I gave during the earlier stages of the Bill..
Once the Bill becomes an Act it will last not only for Mr. Baker's time as Secretary of State. However, whether it will acquire the classic status of the great Education Act 1944 remains to be seen. Whether or not it lasts for 44 years, we believe that there needs to be written into it such protections as we can give against funding, which could all too easily become less and less liberal and more and more bureaucratic..
Our universities and other institutions of higher education are highly esteemed. Indeed, some are among the best in the world. It would be disastrous if undue constraints were ever to be laid on their freedom of thought and action. Putting into the Bill

37
the necessity for consultations on the manner of their funding will, we believe, provide a lasting statutory weapon in case of need. It will go a long way towards dispelling some of the short-term, and still more the long-term, apprehensions which have so troubled the academic world. The positive right to argue one's own case -is, after all, well worth having..
Finally, I hope that the consultations will at last start in a new atmosphere of mutual good will. I suggest that they start with the Croham Report and quietly forget the consultative document.
Lord Beloff: My Lords, I have only a couple of remarks to make in joining with the noble Lord, Lord Swann, to thank the Lord Chancellor for having improved on our original amendment. I am delighted, as is he and as I believe the universities will be, that this important point has been taken..
The first point that I should like to make is that, perhaps along with many other noble Lords, I read with some surprise in The Times on Friday last that government sources had said that it was bad form to be bringing forward at this stage another amendment, as had the noble Lords, Lord Swann and Lord Adrian and the noble Earl, Lord Halsbury, and I. I believe that if that language was used, it was extremely inappropriate. As the noble Lord, Lord Swann, has said, we are dealing not with some passing phase in legislation but with the remodelling for perhaps a generation or longer of the relations between our government and higher education, science and learning in this country. I believe that it was nothing less than the duty of this House to use every constitutional opportunity open to it to make certain that what we ultimately had could be found acceptable not only to us but to the university community at large.
I found the remark even more surprising in the light of the speech made on Tuesday, 19th July, in another place by the Secretary of State, referred to by the noble and learned Lord. It went very far towards meeting many of the anxieties expressed in this House over the course of the discussions of the university provisions in the Bill. Therefore, it seemed odd to me that it should be thought curious or bad form to suggest that one of the assurances could reasonably be incorporated in the Bill..
The reason why we wish to have it incorporated has been referred to by the noble Lord, Lord Swann. One of the difficulties of debating or discussing higher education with Ministers is that dons and politicians are very different kinds of animal. On the whole, dons specialise in a particular subject and a particular area of that subject. Whatever may be thought by the Under-Secretary for Higher Education in another place, it is not easy to regard a professor of sanskrit and a professor of "tribology" as interchangeable units of production. But Ministers are different. They are movable; they have ambitions; they expect to move, to Downing Street or Brussels as the case may be. Therefore, as the noble Lord, Lord Swann, said it seems essential that anything which is intended to last for a long period of time should be on the face of the Bill..
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It is not only Secretaries of State who will change. The members of the original funding councils will not he immortal. They will have their successors, and it seems improbable that their successors would immediately remember that the Secretary of State had made a speech on 18th July 1988 (which may be 20 or 30 years in arrears) and hasten to look it up in order to know how to exercise their responsibilities..
Therefore, we have wished to see on the face of the Bill what we accept to be the goodwill of the Government towards higher education, which has been expressed today by the noble and learned Lord the Lord Chancellor. I think we are now all happy to say—as has been commented on in other quarters—that on universities at least the Government have advanced a very considerable way from the Bill as it originally came before your Lordships' House. There have been considerable advances in understanding—as has been the point of all the amendments on the university clauses which we have discussed— that there can be no healthy relationship unless it is based on confidence, on mutual understanding and on consultation. This afternoon we are putting in the last brick in the edifice, that of consultation..
Once again I should like to join in thanking the noble and learned Lord for his contribution to that end.
The Earl of Halsbury: My Lords, as one of the sponsors of the original amendments, I am very grateful to the noble and learned Lord the Lord Chancellor for all the hard work undertaken last week-end in producing a situation which somewhat confutes the leading article in this morning's Times. I am not concerned with the article that appeared on Friday or Saturday. I am in entire ageement with the amendment as proposed by the noble and learned Lord upon the Woolsack, and I give it my full support.
Lord Jenkins of Hillhead: My Lords, I concur in what the noble Lord, Lord Swann, said earlier except for one point: I do not think that he should apologise for having caused trouble on this matter. Any trouble that he has caused has been very well worth while. I agreed with the noble Lord, Lord Beloff, when he pointed out that words in speeches are not as good as language in statutes. We are therefore grateful that there is some statutory language before us on this important point..
Nonetheless, I am also grateful to the noble and learned Lord the Lord Chancellor for the forthright way in which he spoke this afternoon about his commitment to universities. I thought he struck a more constructive and helpful note than he has done at certain earlier stages in the Bill. I am sure that that represents his real view. We note it and are very grateful indeed for it..
I hope that I am not being unduly churlish in saying that I still incline to the view that his Bill will do little, if any, good for our universities, but it will do a great deal less harm than when it started, and that progress is largely due to the work which has been done in this House.
4.45 p.m.
Lord Hailsham of Saint Marylebone: My Lords, I wonder if somebody who is not quite such a pundit can append a word or two about this matter. I have been caused a good deal of distress by this longstanding controversy. I have been connected in one way or another with higher education both in the universities and in the polytechnics for the greater part of my life..
I think the real lesson to be learnt is that there are limits to what can be achieved by parliamentary draftsmanship. The one secret whereby higher education in its diverse forms can be made to run smoothly in this country is that government—by which I mean any government—and universities and polytechnics—by which I mean all of them—should work both in harmony and in mutual trust with one another. Without that, no degree of parliamentary draftsmanship is possible..
As my noble and learned friend on the Woolsack probably knows, although I have played no public part in this controversy I have taken an interest in it from the start. One of the pieces of advice that I ventured to give was that the noble and learned Lord should be brought into the question, as he has been to great effect. I should like to congratulate him on what he has done.
Lord Flowers: My Lords, it may not seem entirely inappropriate if an active, living, vice-chancellor says a few words before the House moves on..
First, I must say that I am grateful to Mr. Kenneth Baker and to his ministerial colleagues, and especially to the noble and learned Lord the Lord Chancellor, for going so far to meet the genuine anxieties of the universities about the financial implications, especially, of this Bill..
The present chairman of the Committee of Vice-Chancellors and Principals, Sir Mark Richmond, is known to be broadly satisfied with the position now reached. We are all deeply grateful to all noble Lords who have given their support to higher education during the various stages of this mammoth piece of legislation..
Of course I accept the Commons decision that the funds provided to universities through the Universities Funding Council shall be in the form of grants subject to terms and conditions. That was clearly spelled out in the Croham Report, which the universities have welcomed. Moreover, I am perfectly happy to accept Mr. Baker's unequivocal assurances solemnly given in another place last week that the terms and conditions would themselves be subject to terms and conditions, which he was careful to spell out and which are also perfectly satisfactory to me..
My concern, which I share with the noble Lords, Lord Swann and Lord Beloff, is that Mr. Baker will not be Secretary of State forever and other Ministers may put different interpretations on the Bill if it is not amended. Indeed, other Ministers within Mr. Baker's department already appear to offer different interpretations, so if this Bill is to last for 50 years, as we have so often been promised, it needs to be interpreted correctly no matter who is Secretary of State..
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Mr. Baker spoke impressively of the common ground between the universities and the Government. He said that the Government would not proceed further without having meaningful discussions—that was his phrase—with the leaders of higher education. I was greatly comforted by that assurance. Neverthless, I feel bound to point out for the benefit of the generally cynical Civil Service that meaningful discussions imply more than the mere consultation with which we are so frequently fobbed off. Meaningful discussions mean no less than that the leaders of higher education shall be represented at the conference table. Almost the first business to be discussed around the table should be the financial memoranda which will in future govern the financial arrangements between the Government, the funding councils and the institutions of higher education. That is where the terms and conditions will have to be thrashed out. That is why it is important that we be represented..
The manuscript amendment to which the noble and learned Lord the Lord Chancellor has spoken achieves what we seek. All that remains for me therefore is to thank the Government for listening to us. I shall support the amendment.
Lord Croham: My Lords, as the name of my committee has been referred to once or twice, perhaps I may say a few words..
The procedure described by the noble and learned Lord the Lord Chancellor that will now follow in the handling of grants as the result of the amendments passed by Parliament is very much in line with what my committee envisaged would happen. We deliberately did not spell out every detail. We believe that procedures will need to be worked out by what we call the University Grants Council, which is now to be called the Universities Funding Council. Little has been said this afternoon about the importance of the new constitutional position and the new constitution of that council in the working out of future arrangements for the universities. The council will be much more independent and have much more standing because it will not be so readily accused of being merely a spokesman for a vested interest..
The noble and learned Lord the Lord Chancellor pointed out something that seemed to get lost in much of the discussion—namely, that the Government are reducing their powers in the Bill, not increasing them. Everything that noble Lords have feared the bureaucrats might do could be done very readily under present arrangements and will be done much less readily under future arrangements. Therefore, I think that we have now reached a point at which the universities can be much more assured of their future than they might have been before. They will not receive large sums of money without any conditions; of course there will be occasions when earmarking is appropriate. Indeed, if one goes round the universities, one will find that many faculties are very keen on earmarking to preserve the funds that they believe are their own due. That said, I think that we can be reasonably satisfied that the fears that were created last year by that very foolish, half-baked consultative document about contracts have now been subdued.
Lord Peston: My Lords, it would be dishonest of me if I did not say that I believe that the original amendment put forward by the noble Lord, Lord Swann, and others and carried by your Lordships was better than this. I believe it to have been better than this. I am happy that mine is not the first discordant remark made. The noble Lord, Lord Jenkins of Hillhead, made a remark earlier, with which I entirely agree, that at best the parts of the Bill dealing with universities do less damage than they earlier did. However, that is about the best that we can say. That is why I felt I must start by speaking as I have..
As to the substantive issue before us, it is a matter of balance between providing general funding according to broad criteria and providing specific funding when—to use the exact phrase of the noble Lord, Lord Croham—earmarking is appropriate. I certainly believe that there will be occasions when earmarking is appropriate. if the Government wanted an economics department to concentrate specifically on the economics of Europe post-1992, it would be perfectly reasonable to suggest that funding might be found for such a department. The point at issue all along has been: how frequently is "occasionally"? Our worry is that we just do not know how frequently occasionally is. We shall have to hope that occasionally will not be frequently in terms of earmarking..
Those are my churlish remarks. However, I believe that the amendment is an improvement. I am particularly glad—I had intended to ask the question—to be assured that the CVCP—the
Committee of Vice-Chancellors and Principals--and the committee of polytechnic directors are among the bodies that would be consulted, I hope as a matter of course, on matters of general principle to do with funding..
I have one last remark. Unlike other noble Lords, I am not worried about the Secretary of State: I have no worries about the specific Secretary of State not continuing to be such, because I am one of those who would hope that neither he nor any of his friends in the other place will continue in office for very long, but that is a personal prejudice on my part. My worry on bureaucracy and interference has nothing to do with the Secretary of State; with the funding council. In my life as an academic, I think that the UGC has already gone too far in poking its nose into the details of what happens in universities. There is too much of that kind of thing. There are too many committees to which one has to go, and there are too many plans with which one has to be involved. My worry all along has been not about the Secretary of State but about the behaviour of the funding council..
I do not want to end on an entirely discordant note. I hope that the interpretation that the noble and learned Lord the Lord Chancellor puts on the amendment—that the funding council will not act without consultation and will not interfere in matters where it knows nothing but where I would claim boastfully that some of us who are practising academics do know something—is correct. With other noble Lords, I think that what is proposed is better than my worst fears, and for that I thank the noble and learned Lord.
The Lord Chancellor: My Lords, I am very grateful to the noble Lords who have spoken in support of what we propose. For my part, my view is that nothing but good could have come out of the Bill as it was, and all that we have done is to make even more plain the excellence of our intentions..
I am slightly sorry that the Civil Service was referred to as generally cynical. I think that I may be permitted to say that, while no doubt there are some cynics in the Civil Service, the proportion of cynics there is perhaps no larger than among living, working vice-chancellors..
I am grateful to all noble Lords who have spoken. In particular, I am very grateful for the kind remarks of my noble and learned friend Lord Hailsham of Saint Marylebone. As your Lordships will appreciate, the kind of remark that he makes is one that is specially precious to me in my present circumstances..
On Question, That the House do not insist on their Amendment No. 16 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 17 to the words so restored to the Bill and in their consequential Amendments Nos. 18 to 24 to the Bill and agree to the manuscript amendment to the Bill in lieu of Amendment No. 16, Motion agreed to.

LORDS AMENDMENT
25 Clause 115, page 113, line 9, at end insert—
"(6A) In exercising their functions in relation to the provision of financial support for activities eligible for funding under this section the Council shall have regard to the desirability of not discouraging any university in respect of which payments are made under subsection (6) above from maintaining or developing its funding from other sources.".
26 The Commons agreed to the above amendment with the following amendment—
Line 5, leave out ("payments") and insert ("grants").
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 26 to the Lords Amendment No. 25. This is a consequential amendment.
Moved, That the House do agree with the Commons in their Amendment No. 26 to the Lords Amendment No. 25.—(The Lord Chancellor.)
On Question, Motion agreed to.

LORDS AMENDMENT
27 Clause 116, page 114, line 32, at end insert—
("(7A) In exercising their functions in relation to the provision of financial support for activities eligible for funding under this section the Council shall have regard to the desirability of not discouraging any institution within the PCFC funding sector in respect of which payments are made under subsection (7) above from maintaining or developing its funding from other sources.").
28 The Commons agreed to the above amendment with the following amendment—
Line 5, leave out ("payments") and insert ("grants").
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28 to the Lords Amendment No. 27. Again, this is a consequential amendment.
Moved, That the House do agree with the Commons in their Amendment No. 28 to the Lords Amendment No. 27.
On Question, Motion agreed to.

LORDS AMENDMENT
29 After Clause 117, insert the following new clause:
("Inspection of accounts.
(1) The accounts of

(a) any university;

(b) any higher education corporation; or

(c) any institution designated under section 113 of this Act as an institution eligible to receive support from funds administered by the Polytechnics and Colleges Funding Council;

shall be open to the inspection of the Comptroller and Auditor General.
(2) In the case of any higher education corporation or of any such institution as is mentioned in subsection (1)(a) or (c) above—

(a) the power conferred by subsection (1) above; and

(b) the powers under sections 6 and 8 of the National Audit Act 1983 (examinations into the economy, efficiency and effectiveness of certain bodies and access to documents and information) conferred on the Comptroller and Auditor General by virtue of section 6(3)(c) of that Act;

shall be exercisable only in, or in relation to accounts or other documents which relate to, any financial year in which expenditure is incurred by the corporation, or by the governing body of the institution in question, in respect of which payments are made to them under section 115 or 116 of this Act.").
30 The Commons agreed to the above amendment with the following amendment—
Line 20, leave out ("payments") and insert ("grants").
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 30 to the Lords Amendment No. 29. Once again, this is a consequential amendment.
Moved, That the House do agree with the Commons in their Amendment No. 30 to the Lords Amendment No. 29.—(The Lord Chancellor.)
On Question, Motion agreed to.
5 p.m.

LORDS AMENDMENT
31 After Clause 188, insert the following new clause:
("Assistance to education of children of British nationality residing for the time being outside the United Kingdom in another member state of the European Community.
.—(1) For the purpose of facilitating the free movement of families to take advantage of employment opportunities within other member states of the European Community, the Secretary of State shall take action as specified in subsections (2) to (5) below to assist in maintaining and improving educational standards at British schools situated within other member states and to facilitate access to such schools by the children of British expatriates for the time being residing and working in those states.
(2) The Secretary of State shall establish a category of school situated in another member state of the European Community having such characteristics as are specified in subsection (3) below and in regulations which he may make.
(3) The characteristics mentioned above are that the school—

(a) provides education for pupils who have attained the age of five but not the age of nineteen years and are of British nationality but are residing in anther member state of the European Community; and

(b) has a curriculum approved by the Secretary of State and which is broadly similar to the curriculum the pupil would follow if receiving an education in England and Wales.

(4) For the purpose of maintaining and improving the standard of education at such a school, the Secretary of State shall—

(a) make arrangements for the inspection of such a school at appropriate intevals by H.M. Inspector of Schools,
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with the school being responsible for the Inspectors' travel and local expenses;

(b) provide on a regular basis to such a school information on educational development in England and Wales and also facilities such as in-service training for teachers as he may consider necessary or desirable to enable the school to continue to offer an education broadly comparable to that available in England and Wales; and

(c) take such measures as he deems appropriate to facilitate the recruitment of British teachers by these schools and in due course their re-employment in the United Kingdom.

(5) The Secretary of State shall make an order to establish a Grant Scheme for the purpose of enabling children of parents of British nationality for the time being residing and working in another member state of the European community, who might otherwise not be able to do so, to benefit from an education at a school in the category described in subsection (2) above and so facilitate their return to a school or institute of higher education in the United Kingdom.").
32 The Commons disagreed to the above amendment but proposed the following amendment in lieu thereof—
("Services for schools in other member States providing education fin- British children.
.—(1) This section applies to any school which—

(a) is situated in a member State other than the United Kingdom;

(b) provides education for pupils who are British citizens have attained the age of five years but not the age of nineteen rears and are residing in that member State:

(c) has a curriculum which, in the case of any pupil at the school, is broadly similar to the curriculum which he would follow if he were a pupil at a maintained school in England and Wales: and

(d) has such other characteristics as may be prescribed.

(2) In the case of a school to which this section applies the Secretary of State shall—

(a) on a regular basis provide the persons responsible for the management of the school with such information relating to educational development in England and Wales as he thinks appropriate: and

(b) if those persons so request, make arrangements for inspections to he made of the school at such intervals as appear to him to he appropriate by persons appointed as inspectors or additional inspectors under section 77(2) of the 1944 Act.

(3) The Secretary of State shall charge the persons at whose request any inspection of a school is made under this section such fees as will cover the full cost of the inspection.
(4) In this section "maintained school" means any county or voluntary school or any grant-maintained school.").
Baroness Hooper: My Lords, I beg to move that the House do not insist on their Amendment No. 31 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 32 in lieu thereof.
As I said on previous stages of the Bill, the Government are very conscious of the problems which the amendment originally proposed by my noble friend Lady Young and others, and passed by your Lordships, was intended to address. The education of the children of those working in other parts of the European Community is clearly an important matter and one that will need to be addressed with some care if talented people are to be encouraged to spend parts of their career in member states. The Government are in no doubt on that score, particularly in the context of 1992..
However, my noble friend's amendment, as it stood, went considerably further than we are yet in a position to go. In doing so it also raised questions of privilege. The amendment substituted for it does not, I fully recognise, address the central problem to

45
which my noble friend drew our attention. The question of financial assistance with the cost of education in member states raised a large number of legal and practical problems. The Government are concerned about the scope of such assistance in terms both of the schools to which it might relate and the individuals who would qualify. It is not clear, for instance, that it would be possible to confine assistance to British citizens..
All these matters will need to be thoroughly investigated before decisions can be made. I have already assured your Lordships, and I repeat the assurance now, that the Government will look very carefully at what is involved to see whether a way forward can be found. In the meantime, the Government's amendment underlines our appreciation of the role played by the British independent schools in Europe and our willingness to offer such help as we can.
Moved, That the House do not insist on their Amendment No. 31 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 32 in lieu thereof.—(Baroness Hooper.)
Baroness Young: My Lords, I have listened, as always, with great care to what my noble friend Lady Hooper said. She will understand that, to say the very least, I feel greatly disappointed in the amendment that the Government have brought forward..
In common with some of your Lordships, I went to the other place to hear what might be said on this amendment. If I may say so without disrespect to the other place, not for the first time I felt that its procedures were not as efficient or effective as our own. The amendment was not debated at all. I should like to place on record at the beginning of my remarks my gratitude to my honourable friend Mr. Alan Haselhurst, who managed to say something about the amendment when another amendment was being taken, I think completely out of order. It seemed the only way of getting the amendment referred to at all..
I express my disappointment because this amendment has had almost universal support in this House. From my own experience of the House I cannot recall so many Members having been prepared to remain throughout a sitting of the Report stage from three o'clock in the afternoon until eight o'clock the following morning, when the amendment was called. They were prepared to stay in order to speak. That was indicative of the very real support that your Lordships have given to the solution of what is recognised as a great problem..
At the risk of restating the points I made, but speaking now that the opportunity presents itself to do so at a rather more reasonable hour—it was first raised at one o'clock in the morning during the Committee stage and at eight o'clock in the morning on Report—I reaffirm the importance which I attach to this amendment. My noble friend Lord Young has been conducting a most effective campaign about the importance of 1992 and of Britain playing a real and continuing role in the new and expected common market in Europe. I support that entirely and I believe it has the support of all noble Lords. Indeed,
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I quoted from one of the booklets that the noble Lord has issued on the importance of that matter..
It is an absolute tragedy that we as a country have decided to handicap ourselves by not being able to find a way round what will be a perfectly reasonable question that many business people will raise when asked if they will work in the Community countries across the Channel. The big companies, of course, will pay for the education of children at British schools if people so wish it. Some business people will pay the fees because they will be able to afford to do so. However, it is just those firms we are keen to encourage in Europe—the medium sized and smaller firms and the less well-known firms, to say nothing of the self-employed—which will find it difficult. Almost the first question which anyone asks when requested to work in continental Europe is, "What about the education of my children?". It is precisely on that point that I tabled my amendment..
One must compare the position here with what other countries do to help the education of their children. France spends about £130 million a year, the Federal Republic of Germany spends about £90 million a year and the Italian Government spends about £12 million a year. This country spends no money at all. It is extraordinary that we should have this gap in our provisions. It is a gap which I think will become more evident as the years go by until 1992..
I fully accept that my amendment was probably incorrectly drafted. I listened to the previous debate on the amendment with its improved drafting brought forward by my noble and learned friend the Lord Chancellor. That showed how important it is that amendments should be properly drafted. I agree, and in my remarks on Report I made clear, that there are great problems. As my noble friend properly said, there is also the matter of privilege. I accept the constitutional point that that raises. However, from my experience of political life I know that pressing forward with something means finding a way round problems. We all know what the problems are; they invariably speak for themselves. The point is to find a way round them. I simply do not believe it is not possible to solve what is a very real problem. Therefore, I welcome the fact that my noble friend said that she will—I think I have noted her words correctly—look carefully at a way forward..
I say to the noble Baroness and to her right honourable friend the Secretary of State that I do not intend to allow the Government off the hook on this matter because it is far too serious. I have always been someone committed to the European ideal. I believe that the chance for the world of this big market of 320 million people, quite apart from the opportunities that it presents to our own country, is very great indeed. There are opportunities for prosperity and full employment. I do not believe that any government department should put obstacles in the way of people going to work in the full Common Market when it comes to pass..
If there are not as many noble Lords on these Benches this afternoon as I would like to speak and to say very much the kinds of things that I have been saying, it is because many have explained that they

47
are unable to be here for one reason or another. Many noble Lords are away on business. I should also like to place on record my gratitude for support during the course of this debate not only to the noble Baroness, Lady David, and the noble Baroness, Lady Seear, and her colleagues, but also to many Members like the noble Lord, Lord Benson, from the Cross-Benches, and my noble friends Lord Jellicoe and Lord Limerick with their extensive experience of business. They feel strongly and they have asked me to say again this afternoon how strongly they consider the importance of finding a solution to what is recognised to be a real problem..
I accept the government amendment as it has been tabled. It has the effect of consolidating the present practice. It does not actually advance the situation. There is one point I wish to raise for specific clarification. Subsection (1)(a) states:
"is situated in a member State other than the United Kingdom".
I take it that this means of the EC, though it does not say so. Not being a lawyer, I am never quite sure whether I am reading these matters correctly..
I feel it would not be an advantage if this general rule was applied to every British school from one end of the world to the other. That may be very nice for them. However, my amendment has been quite specifically confined to British schools with the EC where I believe there is now a very real need. There are other problems as regards other parts of the world, but those are different issues. I would not want what I believe to be the views of the House to be inaccurately reflected in this government amendment. Perhaps my noble friend can clarify that point after I have concluded my remarks..
Because of the question of privilege, I accept this government amendment with disappointment. I assure my noble friend that I shall return to the matter. I shall take up the opportunity that has been extended to me through a letter from my right honourable friend the Secretary of State to discuss the issue further. I believe that we must consider together, as a matter or urgency, a solution to this problem well before 1992.
Baroness Seear: My Lords, from these Benches we strongly support the noble Baroness, Lady Young, in the amendments that she hopes to bring forward. I am extremely glad to hear that she intends to pursue them later in whatever way is open to her. We on these Benches have been unswerving in our support of the development of the EC since the days of the Treaty of Rome. I do not believe that anyone else in this house can say the same. We are also unswerving in our support for the improvement of education opportunities..
It seems that the Government pay lip service to their belief in the development of the EC. They tell us how enthusiastic they are about the internal market in 1992. As the noble Baroness, Lady Young, said, it is true that the Secretary of State for Trade and Industry is pursuing a most vigorous campaign in order that the internal market should be fully developed. However, there are consequences to those stated commitments. As the noble Baroness said, one
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of the consequences is that if one wants people to work in the single market and if one believes that education is important and one expects people working inside the market to believe education is important, then it is necessary to follow through those commitments and to give the kind of support without which commitments both to the single market and to education sound extremely hollow.
5.15 p.m.
Baroness David: My Lords, as one who had her name attached to this amendment when it was brought forward by the noble Baroness, Lady Young, both at the Committee and Report stages I also express my disappointment that this is all that is to come out of it. It is extremely disappointing. As the noble Baroness said, the amendment does absolutely nothing new. Already there is inspection of schools, and so on. I hope very much, as does the noble Baroness, that there will be some progress..
The noble Baroness has decided that she is going on fighting and I am sure that she will conduct a good fight and will be successful. I do not understand why the question of privilege has been raised at this point. We could have been told about that earlier in the proceedings, which would have saved quite a lot of time and a large number of people staying up late or, rather, staying up early. I am disappointed and in a way slightly shocked. I have every confidence that the noble Baroness will go on fighting for this extremely good cause.
Lord Benson: My Lords, I share in the disappointment which has been expressed so far in this House at the attitude adopted by the Government. Those of us who have the task of finding citizens from this country to extend our industrial and commercial enterprises abroad know how difficult it is to find people who are prepared to throw up all they have in this country in order to serve terms overseas. We all know that one of the factors which is uppermost in their minds is the education of their children so that they may take advantage of higher education when they return to this country. The attitude so far adopted by the Government compares ill with that of other member states in the Community that have found it possible to find support for their own nationals in similar circumstances..
We have heard with attention what has been said by the noble Baroness, Lady Hooper. On three occasions now the Government have expressed sympathy and an undertaking was given, with different degrees of conviction, that they will look into the matter. I suggest that, in the light of the expressions given in this Chamber not only today but on previous occasions, the time has come when the Government should do something positive to make some practical proposals in this regard.
Lord Greenhill of Harrow!: My Lords, I support what has been said by previous speakers. I make one further point. The noble Baroness, Lady Hooper, seemed to suggest that this was a matter which had just been brought to the attention of the

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Government. I believe the noble Baroness probably knows that the Department of Education and Science and the Department of Trade and Industry were given a report about a year ago on this whole subject and dismissed it. So the Government are not coming new to the problem. An assurance that the matter is to be looked into means that they have paid scant respect to the report submitted and the Government are starting from scratch..
I hope that the Government will respond to what has been said by previous speakers and tackle this problem. It has not only an education and trade effect but also has a big effect on parents and the relationship between them and their children and also between the parents themselves. They have the difficulty of making up their minds on what to do concerning the education of their children. I know from my previous experience in another government department that there is no more fertile ground for family breakdowns than arguments about the education of the children.
Lord Walston: My Lords, I should like to add my voice and I think those of my colleagues on these Benches to those that have been raised to urge the Government to act quickly and efficiently in favour of implementing the spirit behind the noble Baroness's amendment. I shall not repeat the arguments; they have all been made forcefully and clearly. However, it is essential for us in this country to ensure that the best people, and in particular the best younger people, are encouraged to go into Europe in order to promote our interests purely commercially, to promote the European interest and to demonstrate that, in spite of some of the things that have been done and said, we are essentially in favour of a wider and more effective European Community than exists at present..
This very minor matter of enormous importance to a small number of people is merely one indication of that willingness. We urge the noble Baroness, Lady Hooper, and the Government as a whole to give as firm an undertaking as is possible at this stage followed up by firm action in the very near future to ensure that the handicaps mentioned by the noble Baroness, Lady Young, are overcome and that the spirit of this amendment can be implemented.
Baroness Hooper: My Lords, I have listened with great interest to what has been said and I am grateful for the understanding that has been shown of the Government's position. I have no doubt that if, as she says, my noble friend intends to continue with her campaign, she will do so most successfully..
I should perhaps make it clear that, in being sympathetic to the concerns raised by this issue, the Government have attempted to express them frequently. Indeed, my honourable friend the Minister of State managed to say as much in her reply to the brief debate in another place initiated by the honourable Member for Saffron Walden, Mr. Haselhurst. In response to my noble friend's specific question, it is one I faced myself on seeing the amendment tabled. However, it appears that Schedule I to the European Communities Act 1972 defines member states as member states of the
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European Community for all legislation. That is the explanation..
Today's debate has underlined the importance which your Lordships attach to finding a way forward and has again emphasised the reasons for doing so. We are in no doubt of the strength of feeling on this issue. In response to the noble Lord, Lord Greenhill, the matter is highlighted now in the context of the 1992 campaign, and it was very much in that context that my noble friend originally tabled her amendment. We shall be giving the complex questions involved in it the attention they deserve; of that I can assure the House.
On Question, Motion agreed to.

Housing Bill
5.24 p.m.
The Minister of State, Department of the Environment (The Earl of Caithness): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Earl of Caithness.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD CULLEN OF ASHBOURNE in the Chair.]
Clause 17 [Succession to assured periodic tenancy by spouse]:
Lord Hesketh Lord Hesketh moved Amendment No. 40:
Page 13, line 11, at end insert ("or
(c) he became entitled to the tenancy as mentioned in section 39(5) below.")
The noble Lord said: Noble Lords will be aware that Clause 17 established the right of succession to an assured tenancy for the spouse or common law spouse of a deceased assured tenant. The Bill in its original form did not provide a right of succession to an assured tenancy, but it was argued very strongly in the other place that tenants would not automatically negotiate joint tenancies for husband and wife, and there could be great hardship for widows who might be evicted if no automatic right of succession was provided. There was some force in those arguments, and so a right of succession was provided. However, it is a single right of succession for the spouse only. We believe the Rent Act rules which allow two successions err in their generosity to the tenant, and that a landlord should not be deprived of his property without his consent for up to three generations.
This amendment blocks a small loophole in the succession provision. It will be possible under Schedule 4 to the Bill for a family member of a Rent Act tenant to succeed to an assured tenancy on the death of that tenant, provided he or she has met the necessary residence qualification. That successor could himself or herself be a first successor or indeed a second successor already. It would be contrary to our intentions for the spouse of that assured tenant by succession to have the automatic right of succession to an assured tenancy. If the landlord is willing to grant the tenancy voluntarily, that is a

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different matter. However, we do not want to perpetuate successions over which the landlord has no control.
We are not here affecting the rights of existing tenants; we are simply ensuring that where there are successions which take place after commencement on the death of Rent Act tenants, the spouses of the successors do not themselves become automatic second generation successors. This is a small amendment to ensure consistency in our succession provisions, and I hope that it will be accepted as such.
On Question, amendment agreed to.
Clause 17, as amended, agreed to.
Clauses 18 and 19 agreed to.
Clause 20 [Assured shorthold tenancies]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 41: Page 14, line 26, after ("is") insert ("a fixed term tenancy").
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 42:0
Page 14, line 27, at end insert—
("(aa) in respect of which there is no power for the landlord to determine the tenancy at any time earlier than six months from the beginning of the tenancy; and").
On Question, amendment agreed to.
[Amendments Nos. 43 and 44 not moved.]
Lord Monson Lord Monson moved Amendment No. 45:
Page 14, line 38, leave out subsection (3).
The noble Lord said: This is essentially a probing amendment. Incidentally, I should mention that my noble friend Lord Lytton is absent today because he is unwell and not because his enthusiasm for the amendment and for Amendment No. 47 has in any way waned.
Subsection (3) of the clause seems to propose an unnecessary bureaucratic restriction on the landlord and one which is unlikely to fire him with enthusiasm for putting vacant property back on the letting market. Let us suppose, for example, that he has converted a part of his home into a self-contained flat or maisonette which he then lets on an assured tenancy. He then hears from his son who happens to be working in the Gulf, in Nigeria or in California that things have not worked out quite as planned and that he—that is, his son—together with his wife and children intend to return to the United Kingdom in six months' time and would like to be put up.
Is it not reasonable that in such an instance a landlord should wish to transform the present assured tenancy into a shorthold tenancy with a life of six months so as to be able to provide accommodation for his son, daughter-in-law and their children, with a lower rent to the existing tenant as a quid pro quo? As the Bill stands, that option does not seem to be open to him. I beg to move.
5.30 p.m.
The Earl of Caithness: One of the basic principles of the new regime is that, once a tenant has been
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granted a full assured tenancy, he should have the benefit of long-term security of tenure of a kind broadly comparable to that currently enjoyed by tenants under the Rent Act. During the debates in another place the argument was advanced that an unscrupulous landlord might seek to undermine this protection for the tenant by persuading him to accept a new tenancy which was designated, by virtue of service of the appropriate notice, a shorthold. An unwary tenant might agree to such a proposal without realising its full significance and thus forfeit his long-term security. The Government accepted that it was right to guard against this eventuality. We therefore inserted the present sub-section (3) into Clause 20 to provide that a tenancy cannot qualify as a shorthold in the situation where it is granted to someone who was hitherto the tenant under a full assured tenancy and where the landlord was, immediately beforehand, the same person as the landlord granting the new tenancy.
Our view is that a safeguard of this kind is entirely reasonable. It seems virtually impossible to envisage any circumstances in which a landlord having granted a full assured tenancy with long-term security for the tenant would then have any justification for replacing that tenancy with a shorthold. If a landlord is genuinely unable to commit himself to long-term letting, the answer must be to grant a shorthold from the outset. I believe that that provision covers the point raised by the noble Lord, Lord Monson.
It is of the essence of our approach on security of tenure that tenants should know where they stand from the very beginning. The amendment tabled in the name of the noble Lord, Lord Monson, would run counter to that central principle. At this stage, I must say how sorry we all are that the noble Earl, Lord Lytton, is not present in the Chamber because he has a wealth of experience, being a surveyor, and we hope that he will be able to resume discussions with us shortly. The amendment could place tenants in a position of considerable uncertainty. Indeed, it might open the way to serious abuse.
Lord Monson: Once again the Government seem to have at the forefront of their minds the picture of a large impersonal landlord—or possibly a medium-sized one. They do not seem to realise the problems of the really small landlord. The Government make much play of their support for family life. But I am bound to say that their opposition to this amendment hardly seems to tally with their declared intention, because the noble Earl has not answered the question which I effectively posed in my introduction to the amendment. I asked what happens when the landlord's family wish to occupy the property in question..
However, I should like to consider the matter further during the Summer Recess. Therefore, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 46:
Page 15, line 6, leave out ("and") and insert ('to").
On Question, amendment agreed to. Clause 20, as amended, agreed to.
Clause 21 [Recovery of possession on expiry or termination of assured shorthold tenancy]:
Lord Monson Lord Monson moved Amendment No. 47:
Page 15, line 32, leave out ("two month's") and insert ("one month's").
The noble Lord said: Once again I am proposing an amendment to make shorthold letting more attractive so as to provide rented accommodation for people who cannot find it at the moment, as the Government want and, as I am sure, the Opposition also want. The Committee will not need reminding that the whole shorthold concept, introduced with such a fanfare by the Government some years ago, has so far been a dismal flop. It will remain a dismal flop until such time as potential shorthold landlords—I stress the word "potential"—feel that the dice have ceased to be loaded against them.
If I rent a house or cottage for six months, nine months, 12 months or two years, then six months, nine months, 12 months or two years, as the case may be, is exactly the period I would expect to stay in that property; no less, but certainly no more. If by chance the landlord should tell me towards the end of the tenancy that he can spare the property for another month or so, that is an added bonus—or could be if I wished to stay on, as of course I may not. However, it is not something I should expect as of right. I am sure that most Members of the Committe will feel the same way about this.
In its present form the Bill totally stands the normal form of contractual arrangement on its head. It provides that a tenant entering into, say, a 15-month contract should nevertheless be entitled to stay in the property pretty well indefinitely, unless the landlord gives him two months' notice on the day that the tenant has occupied the property for precisely 13 months. That seems to me to be extraordinarily inflexible and potentially extremely inconvenient for the landlord. The shorter period of notice of one month which we propose is still somewhat inflexible but rather less inconvenient in that it gives the landlord an extra month to decide whether he is in a position to re-let, whether he wants to re-let and, if so, for how long. I beg to move.
The Earl of Caithness: Clause 21 provides that a landlord who has let a dwelling as an assured shorthold tenancy has a mandatory right to possession when the fixed term comes to an end, or during any statutory periodic tenancy which follows it. In order to exercise this right he must give the tenant two months' notice that he requires possession. As the noble Lord, Lord Monson, has just explained, he would prefer that period to be reduced to one month..
In framing the new shorthold rules in this Bill we wanted to produce a form of the tenancy which would be both more attractive to landlords than the old style shorthold tenancy under the Housing Act 1980, and simpler to use. We have reduced the minimum length of a shorthold from a year to six months; we have reduced the normal period of notice from three months to two and we have simplified the possession procedure by removing the limitations on when the landlord can seek possession. So we have
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already gone a long way in the direction that the noble Lord wants and I hope that- he will acknowledge this. I think that what we have proposed meets many of the concerns that the small landlords—for whom he is speaking so well—have been at pains to point out to us are deterring them from letting. That is something we want to change..
The period of notice is of course a matter of judgment. There is no magic about any particular number. The present three months seemed to us too long; the two months in Clause 21 seems about right. For the tenant who is well behaved and has not broken any terms of his tenancy to be on just one month's notice of losing his house seems too short to us. I can understand the noble Lord's case, but I cannot agree with him that the two months should be reduced to one.
Lord Monson: I acknowledge that the Government have gone some way towards making shorthold letting more attractive. However, I do not think that they have gone far enough. I am glad to see the noble Lord, Lord Bellwin, in his place this afternoon because I remember so well his saying, on the first day in Committee, that there were 200,000 houses and flats waiting to come back on the market if conditions were made sufficiently attractive for landlords. As the Bill stands, I do not think that the conditions have been made sufficiently attractive for more than a tiny proportion of those 200,000 dwellings to come back on the market..
I shall not press the amendment because I have not received any support for it thus far. However, I shall try to work out a better argument than the one I have at the moment for at least some modification of the clause. Perhaps we may be able to compromise on the issue at the next stage of the Bill's proceedings. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 47A:
Page 15, line 35, after ("end") insert ("provided that such a notice may not be served more than two months before the tenancy comes to an end nor more than three months before proceedings for possession are commenced").
The noble Lord said: I beg to move Amendment No. 47A tabled in the name of my noble friend Lord McIntosh of Haringey. The object of the amendment is to ensure that the notice required under Clause 21(1)(b), which states that the landlord
"requires possession of the dwelling-house",
forms a genuine part of the procedure for recovery of possession and puts the tenant on notice at an appropriate time. Otherwise such a notice could be issued at the beginning of a tenancy and become a meaningless formality. At present proceedings for possession of a shorthold tenancy can be heard within 14 days of service on the tenant. The tenant would thus be deprived of the opportunities both to obtain legal advice and arrange representation, if appropriate. What is more important, it would deprive him of the opportunity to make alternative arrangements for accommodation.
In our view, the proposal would not jeopardise the free market position embodied in the provisions. It

55
would be similar to the provisions of business tenancies provided by Part H of the Landlord and Tenant Act 1954. I hope that the Minister will understand that we are trying to amend the Bill so as to be reasonable to people who need just a little extra grace.
The Earl of Caithness: As the Bill is drafted, a landlord wishing to obtain possession of a dwelling let on a shorthold tenancy is required to give the tenant at least two months' notice to the effect that possession is required. There is no restriction as to the actual point at which the landlord must serve the notice. Thus, a landlord granting a shorthold and knowing that he will require possession as soon as the fixed term comes to an end may choose to serve notice on the tenant at the very outset of the tenancy. That will please the noble Lord, Lord Monson, who, alas, is not in his place, because then the tenant would know for certain when the term was coming to an end..
In another case the landlord might serve notice at some point during the course of the fixed term. In yet another case he might wait until the fixed term comes to an end or if he is happy for the tenancy to continue on a periodic basis even later. The crucial point is that the tenant will always have at least two months' notice that the landlord requires possession..
In moving the amendment the noble Lord, Lord Graham of Edmonton, has argued the need for a restriction as to the point at which notice can be given to the tenant. I do not find his argument persuasive. Our view is that where a landlord granting a shorthold knows well in advance, perhaps indeed from the very outset of the tenancy, that he will require possession at a particular time, there is no reason at all why he should delay giving notice of the fact to the tenant. To impose a requirement of the kind suggested by the noble Lord would be a quite unnecessary restriction from the landlord's point of view. One of the points frequently made about the old-style shorthold tenancy procedure is that the requirements for giving notice to the tenant are needlessly complicated. We want to get away from that in this legislation..
In any case, I should have thought that it would be in the tenant's own interest to have as much notice as possible that possession will in due course be required. The more notice he has, the more time there is to think ahead and make plans accordingly. So from that point of view the noble Lord's amendment would seem to me to work very much to the disadvantage of the tenant. Having been a tenant, I know the great advantage of the longer notice when having to find alternative accommodation because the landlord wanted the house back.
Lord Graham of Edmonton: The Minister may well be right. I know that he is not dogmatic and that his remarks are based on the empirical experience of himself and others. He argued that the provision would be to the disadvantage to the landlord. I am not primarily concerned with the landlords interests. I am primarily concerned with the tenant's interests. However, I accept that there are circumstances when
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one must be fair and reasonable. In his concluding two or three sentences, the Minister said that the amendment could well act to the detriment of the tenant's interests. He used his experience to point that out. I am grateful for the care and courtesy he has shown. Those inside and outside this place will read what he has said with care. We may come back at a later stage. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. Clause 21 agreed to.
Clause 22 [Reference of excessive rents to rent assessment committee]:
Lord Hesketh Lord Hesketh moved Amendment No. 48:
Page 16, line 9, leave out ("if").
The noble Lord said: On Report in another place the Minister accepted the argument that the proviso contained in Clause 22(1) served no useful purpose and therefore undertook to delete it. The amendment fulfils that undertaking. I beg to move.
On Question, amendment agreed to.
Lord Hesketh Lord Hesketh moved Amendment No. 49:
Page 16, line II, leave out from ("above") to ("may") in line 14.
On Question, amendment agreed to.
[Amendment No. 50 not moved.]
Clause 22, as amended, agreed to.
Clause 23 agreed to.
Lord Dean of Beswick Lord Dean of Beswick moved Amendment No. 51:
After Clause 23, insert the following new clause:
("Prohibition of premiums etc.
.—(1) Any person who, as a condition of or in connection with the grant, renewal, continuance or assignment of an assured shorthold tenancy, requires or receives, in addition to the rent, the payment of any premium, or requires the making of any loan (whether secured or unsecured) shall be guilty of an offence.
(2) Where the purchase of any furniture has been required as a condition of the grant, renewal, continuance or assignment of an assured shorthold tenancy, then if the price exceeds the reasonable price of the furniture, the excess shall be treated for the purposes of subsection (1) above as if it were a premium.
(3) Where an assured shorthold tenancy is granted, renewed or continued, any requirement that rent shall be payable—

(a) before the beginning of the rental period in respect of which it is payable, or

(b) earlier than three months before the end of the rental period in respect of which it is payable (if that period is more than three months)

shall be treated for the purposes of subsection (1) above as if it were a requirement for a premium, and any payment of rent in pursuance of such a requirement shall be treated as if it were the payment of a premium.
(4) Where under any agreement any amount is paid and that amount could not lawfully be required or received under subsection (1) above, the amount shall be recoverable by the person by whom it was paid.
(5) Any amount which a tenant is entitled to recover under subsection (4) above may, without prejudice to any other method of recovery, be deducted by the tenant from any rent payable by him to the landlord who received such an amount.
(6) In this section, unless the context otherwise requires—
"furniture" includes fittings and other articles; and
"premium" includes—

(a) any fine or other like sum;

(b) any other pecuniary consideration in addition to rent; and

57

(c) any sum paid by way of deposit, other than one which does not exceed one-sixth of the annual rent and is reasonable in relation to the potential liability in respect of which it is paid.").

The noble Lord said: I shall speak also to Amendment No. 52. The purpose of the amendments is to apply to assured shorthold tenancies provisions broadly equivalent to those in the Rent Act 1977 which prohibit the charging of premiums and similar payments in respect of protected tenancies. As the Bill stands, landlords will be free to charge limitless premiums in the case of assured and assured shorthold tenancies. A prohibition on premiums, sometimes known as key money, is necessary if people on average or below average incomes are to have access to private rented accommodation after the passing of the Bill.
It is necessary to prevent hardship and the exploitation of tenants and prospective tenants through a practice which could well become standard. The Government's stated aim is to revitalise the private rented sector to meet the needs of people who cannot afford to buy a home. Those people tend to fall into one or both of the following categories—those whose income is too low to raise a mortgage or those who have insufficient savings to cover a deposit and the other initial costs of buying a home.
If landlords are permitted to charge premiums, it is likely that they will do so, especially in London and other areas of high demand for rented housing. Such areas constitute a sellers' market. The Government's overall policy objective is therefore likely to be frustrated as low-paid workers, unemployed people, and other low income groups such as students will be unable to afford the initial costs of a new letting. Hardship may result where tenants pay premiums. People anxious to secure accommodation but lacking resources to meet the cost of a premium may borrow the money. They will therefore find themselves in debt at the beginning of the tenancy and consequently will be more likely to fall into rent arrears with the accompanying threat of eviction and homelessness.
There is little doubt that some unscrupulous landlords will abuse the freedom to charge a premium. Camden Housing Aid Centre, for example, knows of three recent cases in the Belsize Park area where landlords have attempted to charge premiums ranging from £3,000 to £6,000 for the grant of protected tenancies even though that is illegal. In addition, premiums are frequently sought in connection with the grant of lettings outside Rent Act control where there are no legal restrictions on such payments.
The scope of the amendment is limited to assured shorthold tenancies where the charging of premiums will cause hardship and injustice. The assured shorthold scheme will provide tenants with minimal security of tenure only. It is wholly unreasonable in such circumstances to expect tenants to pay substantial sums in addition to the rent merely to obtain accommodation. It is also likely that some landlords will routinely charge additional premiums as a condition of renewing an assured shorthold tenancy. Tenants will, in effect, have to choose
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between making a further lump sum payment or losing their home to be replaced by someone willing and able to pay a further premium.
At the same time, the charging of premiums will provide landlords with the means to circumvent the limited rent control afforded by the scheme. It is right and proper that the Act should seek to protect tenants from those abuses.
The Government amended the Housing (Scotland) Bill on Report in this place on 6th July to prohibit premiums on assured tenancies. The wording of the Government new clause was:
("Prohibition of premiums etc. on assured tenancies.
Sections 82, 83 and 86 to 90 of the Rent (Scotland) Act 1984 (which make it an offence to require premiums and advance payment of rent in respect of protected tenancies and make related provision) shall apply in relation to assured tenancies as they apply in relation to protected tenancies (including protected tenancies which are regulated tenancies), but with the following modifications—

(a) section 83(5) shall not apply; and:

(b) section 88(1) shall apply as if for the references to 12th August 1971 there were substituted references to the date of commencement of this section.").

If the Government have prohibited premiums for assured tenancies in the Scottish Bill, I maintain that there is no reason at all that I can see why it should not be extended to this Bill. I think equal treatment is expected by all those concerned in this exercise; that is what they are entitled to. I beg to move.
Lord Ross of Newport: I am very much in support of these amendments because I fear that we shall be seeing the introduction of premiums on assured shorthold tenancies, particularly in areas of greatest stress, almost certainly in London, Brighton, and other of our great cities. I am sure that the noble Earl will know what is happening on leasehold tenancies in shops and commercial properties at present. Quite extraordinary premiums are being paid—key money. One cannot really say premiums; it is key money to get in. Some people paying these huge sums will get a nasty shock when the rating lists are published in 18 months' time when the new business assessments are published. Nevertheless, these amounts are paid now.
If we are serious about attempting—and I believe the Government are serious—to get some rented accommodation on to the market, surely the people whom we want to be in a position to obtain those tenancies are people who will not be forced out by having demanded of them vast sums such as those quoted by the noble Lord, Lord Dean of Beswick, in the cases of Camden and elsewhere. I suspect in some cases thousands of pounds may well be demanded. I think that the Government would be right, if they started by bringing in this form of assured shorthold tenancy, to ban or to continue the restriction on premiums. if we are to have market rents, let us have market rents but no nonsense about key money in addition. Therefore, I heartily support the amendments.
The Earl of Caithness: I am well aware that the issue of premiums, sometimes described, as both noble Lords have said, as key money has in the past been an emotive one. Nonetheless, I hope that I can

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persuade your Lordships to put emotion on one side and consider the subject in a purely objective way.
Premiums are illegal under the Rent Act. The justification for the prohibition is that without it landlords would resort to premiums as a means of getting round statutory rent control. In practice, the prohibition has never proved easy to enforce but the underlying logic is clear enough. However, under a deregulated regime the premium must inevitably be seen in a different light. Once landlords have the freedom to charge a market rent, as they will have under this Bill, the argument for prohibiting premiums no longer holds good. On the contrary, the freedom of the landlord and tenant to negotiate the payment of a capital sum as part of the charge for granting a tenancy can be viewed as a perfectly logical and reasonable feature in the operation of the market.
We have no reason to believe that premiums will be widely charged for the new style tenancies. But where they are charged, it must be the case in a free market that as a consequence the rent which the tenant pays will be reduced below that which would otherwise have applied. That is a principle which is already well established in the market for commercial lettings and long residential leases where premiums have long been accepted as a fact of life.
However, there are more immediate precedents too. Housing associations can at present charge premiums for tenancies. As the noble Lord, Lord Ross of Newport, will know, some do so. The noble Lord, Lord Dean of Beswick, will recall the Rent (Agriculture) Act 1976. This gave statutory security of tenure to farm workers in tied cottages but did not impose rent control. It allowed the charging of premiums for agricultural tenancies. Perhaps most relevant of all, premiums have been permitted under the old style assured tenancy regime and to the best of my knowledge have never been the subject of a single complaint during the eight years that regime has been in existence.
Against this background we have concluded that there is no compelling argument for including a prohibition on premiums for either full assured tenancies or shorthold tenancies to which this amendment relates. To reverse this decision would, we believe, fly in the face of a free market principle which is fundamental to the Bill. Surely logic, consistency with other forms of tenure and simplicity of legislation all point against prohibition.
The noble Lord, Lord Dean of Beswick, raised—and rightly so—the question of what happened on the Housing (Scotland) Bill. I must remind Members of the Committee that there are substantial differences in the position north and south of the Border on this matter. That is not unusual. As I have said, the concept of the premium is already well established in England and Wales. This is not the case in Scotland. There are no long residential leases under Scottish law. Nor do the Scots have old style assured tenancies or the same agricultural tenancies as we have in England and Wales. Registered housing associations in Scotland are not permitted to charge premiums. Consequently
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premiums have never been an accepted feature of the housing market north of the Border.
These legal and historical differences between England and Wales on the one hand and Scotland on the other seem to us to justify a divergence of approach on the issue of premiums. I realise that some Members of the Committee feel very strongly about this, but if we are to move into a free market where the landlord and tenant can agree a lower rent if a premium is charged, why should they not do so?
Lord Taylor of Gryfe: I am tempted to intervene in this discussion only because I think I heard the Minister say that key money or premiums were not a familiar feature of the Scottish housing situation. I must say that I disagree entirely with that point of view. We discussed the matter on the Scottish Bill at very great length in this Chamber. The Minister's noble friend Lord Sanderson resisted the abolition of the premium at an early stage but agreed to give it further consideration.
On further consideration, the Government agreed that premiums or key money were an undesirable feature. Consequently they conceded the amendment which would abolish premiums or key money. For the life of me, I cannot understand why it is an undesirable feature of housing legislation north of the Border but is being allowed for our less favoured friends south of the Border. I wish to resist the proposition that it has never been a serious feature of Scottish housing practice.
Lord Stallard: I find the discussion a wee bit unreal, particularly the remarks of the Minister. In the real world we know—and almost unanimously critics of the Bill have said—that this shorthold or assured tenancy will be a dead letter before very long. Landlords will have no incentive to let on this basis when they can have an assured shorthold tenancy. They will all go for the shorthold because it gives them an outright power to do a number of things.
First of all, they can evict; they can give notice after six months. They are not going to give an assured tenancy if they can get an assured shorthold with that incentive for eviction. They will waive all the other rights that tenants have—for example, the right to registration, the right to repairs—because it will react against them if they intend to apply for a further extension or for a further tenancy. They will not complain about anything at all if the minute they do the notice to evict them is effective.
The argument that shorthold market rent levels will be lower as a quid pro quo because of the insecurity does not add up either in our view, for the same reasons. Although these shorthold tenants will have a right to apply to a rent assessment committee during the first fixed term, very few will do so for the reasons that I have just mentioned. Which tenant is going to apply to that committee or argue about the rent or any other aspect of the tenancy, including key money, if he knows that that could lead to an eviction notice which he already dreads getting?
As regards key money, I understand that some of these tenancies will be for private tenants and other people such as the homeless who are seeking

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accommodation and who, in desperation, will be only too pleased to take on an assured tenancy and pay key money. But where will they get the key money from? That provision will rule out people who really need rented accommodation as none of them will be able to afford the kinds of sums that my noble friend mentioned. Those sums exist, certainly in the borough where I live. In that borough key money and premiums run into thousands. No one desperate for rented accommodation will be able to afford key money even if after obtaining the tenancy they were bold enough or brave enough to raise the kind of objections that the Minister considers they will make. They will not make those objections because in reality they would be thrown out of the accommodation and they would not be granted any further tenancy on that property. The whole matter is a mess. It cannot work and it will not be of any help at all to the people who really need rented accommodation.
6 p.m.
Baroness Fisher of Rednal: I wish to support my noble friend Lord Stallard regarding premiums. That money will be difficult to find, especially for those whom the Government have said they wish to help rehouse. The situation will be particularly difficult in London.
If those people are at present living in appalling housing conditions, surely to goodness they will not he able to put down a premium, as my noble friend has just pointed out. This provision is not going to help those people who really need help. The Government must be concerned at the present moment as regards the houses for sale market because of the gazumping that is going on. The same thing will occur with premiums. I could offer £250 to a landlord as a premium and somebody else could then offer £300. The rented sector premium will become subject to the same kind of gazumping that applies to prices in the houses for sale market. I should not have thought that the Government wanted that phenomenon to occur in the rented market.
Lord Bellwin: I think that we are losing sight of what the Bill is trying to do. The Bill is trying to encourage landlords who at present have dwellings and who will not rent them out because of lack of security of tenure and because of their inability to obtain reasonable rents for those dwellings. The more we impose restrictions, the less likely it is that those dwellings will become available. Surely that is the underlying nub of what we are seeking to do.
As the Minister has told us, there is no substantial record of landlords demanding premiums. If we wish to release all these hundreds of thousands of empty dwellings that we are told about by persuading landlords that it is worth while renting the dwellings out, the more we impose restrictions on landlords the less likely it is that they will rent their dwellings out. I confess to being unclear as regards why the situation in Scotland is different from the situation in the rest of the country. Therefore I shall just have to listen to what is said about that. I make no comment on it at the moment.
I know that some Members of the Committee are anxious about premiums. That concern is very
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properly expressed, but I do not think that in practice one can ask for more rent than people can pay or that one can ask for premiums that people cannot pay. It is a market situation. But we must try to persuade people who own accommodation in the private sector to make it available for rent.
I have a final point to make about housing and rent. The more units that are available and taken up, the more there will be available for others. When units are blocked out for any reason, people cannot take advantage of them. If some do, it leaves room at the other end. So, for example, when council tenants move into the private sector their dwellings become available for other people in the public sector. The more the entire stock of housing is brought into use, the more help it is to those who most need accommodation. I am only concerned about the point of the different situation in Scotland as compared with England. That is not clear to me. But I am not as concerned about the other aspects of this matter as are those Members of the Committee who have expressed fears.
Lord Stallard: Will the noble Lord expand on a point that he mentioned? He said that he was concerned about getting homes for the people who most needed them. That is my concern also. There are 2½ million homeless people. How will the premium. the maximum rents and all the other incentives to landlords that the noble Lord, Lord Bellwin, mentioned ease the problems of the homeless? Most of those 2½ million homeless people are on supplementary benefit or its equivalent.
Lord Bellwin: But the fact is that if dwellings remain empty, for whatever reason, that helps no one at all. If landlords do not make them available for rent, it helps no one. I submit, and I am sure the Minister submits also, that the whole purpose of this part of the Bill is to make more dwellings available. I remember very well introducing the shorthold concept in this Chamber. Members opposite said that it would be the policy of their party, when it returned to office, to do away with the concept of shorthold tenancies. That put quite a kybosh on that whole concept. It discouraged landlords who might have been willing to offer dwellings for rent.
Let us be consistent about this and let us remember that what we are really about is trying to get these units of accommodation brought into the housing stock so that people can occupy them. That is what I understand this Bill is about.
Baroness Macleod of Borve: I agree with all Members of the Committee who have spoken except the noble Lord who has just spoken. I thought that the intention of the Bill was to help people who did not have homes of their own. That is why the Government want to make far more accommodation available for rent.
As has been said by other Members of the Committee, if one allows rent to become expensive and one allows a premium to be imposed as well, the people who cannot afford to buy and who need to rent will be in an impossible situation and the whole purpose of what the Government are trying to do will

63
be undermined. I cannot see that that is fair to the people who want rented accommodation.
Money is very short for people up in the North. They want to get jobs down in the South. They do not have homes and they cannot afford to buy homes in the South. They need rented accommodation, but if on top of rent they are asked to pay Rachmanite key money I think we shall have put a coach and horses through what the Government are trying to do.
Earl Russell: I was a little perplexed by the reference made by the Minister to free market principles. I am aware that rents in shorthold tenancies are market rents. However, there is a procedure in Clause 22, if I have read it correctly, for those rents to be referred, checked and controlled. That means that although they are market rents, they are not entirely free market rents.
So the Minister has recommended a market which is partly totally free and partly not entirely free. That is likely to have the effect that such measures have had ever since the reign of King Henry VIII of causing premiums to soar while rents remain under control. 'That is likely to cause certain problems.
I have a special interest in these matters. Teaching in London as I do. I am well aware of the difficulties suffered by students in finding accommodation in London at suitable prices. That is a matter on which my noble friend Lord Flowers was consulting with Mr. Jackson last week. It is a matter on which the Minister might usefully be in touch with the Department of Education and Science. It should be borne in mind that most undergraduates are not equipped with large sums of capital and are not in a good position to pay large premiums.
Lord Diamond: When the Minister comes to reply to the debate, perhaps he will clear up a point on which I am confused. As I understand it, under the proposed new tenancies it will not be illegal for a landlord to propose a premium on residential property, by whatever name it may be called. Assuming that I am right in supposing that it is the Government's intention that landlords and tenants should get together and agree the terms of a tenancy, it may be that in some cases it will suit both parties for a small premium to be paid rather than a larger rent and in other cases perhaps a slightly larger rent will be charged with no premium. What will the effect of all that he on the relief and housing benefit which the Minister has promised will fully take the place of increased rents rising through market forces? Will the premium, whether it be small or large, be taken into account and spread over the period of the tenancy?
Lord Ross of Newport: Perhaps I may put the point to the Minister that what often upsets decent landlords is a tenant who is in an assured tenancy and charges a premium for the transfer of the tenancy. Presumably that is what will happen in this case. A tenant may well, after six months, turn around and demand a premium from someone else who is coming in.
I listened to the noble Lord, Lord Bellwin, with interest. The whole matter is one of supply and
64
demand. There will not be any supply if, right at the outset, the only people who rent the properties are extremely wealthy, want them for short periods and are able to pay sizeable sums of money for a premium. If we want to get market rents, let us ban premiums. Then the rent assessment committees can say whether or not the rents are fair. The noble Earl, Lord Russell, has rightly pointed out that under Clause 22, if the charge is far too high, the RACs will decide accordingly.
We want to see the Bill work. However, most of us feel that if premiums are allowed it will not work in many parts of the country. In other parts of the country where there is a surplus, the premium is not necessary in any case.
Lord Trafford: There is a slight contradiction in what Members opposite have been saying. I understand that many of them do not like the concept of market rents and a free market in housing. Fair enough. However, for those who feel that the Bill may make a contribution to an increase in general housing stock and help to alleviate the shortage, it seems unfortunate to put too many trip-wires in the way of those who might otherwise be tempted to bring forward part or all of their own properties for rental. I do not have in mind an enormous company owning hundreds of flats. I have in mind the smaller landlord.
Estimates have been made and announced in this House of anything up to 200,000 properties which may be brought onto the market in the private rented sector. We have heard talk about another 200,000 properties which the Government have locked away in the MoD and various other places which are lost, in one way or another, to present housing use.
Lord Graham of Edmonton: The Ministry of Transport.
Lord Trafford: Someone is shouting, "Ministry of Transport". That may be so as well. There may be an equivalent, or even larger, number of properties with local authorities. The Bill is trying to increase the amount of housing stock that is available for the purpose of housing people. One of the ways of encouraging one end of the spectrum—the private sector—to bring housing onto the market is by making the market as free as possible.
I take the point made by the noble Earl, Lord Russell, on rent assessments. However, we must remember that the rent assessment is against a market rent and other assured tenancies. It is not the same as the present and previous rent tribunals. The more difficulties we put in the way of those who are likely to bring for-ward one or two properties or part of their own property, the more they will say, "I do not think I am going to be bothered to do that".
I am not speaking of enormous companies or the man who is in major property development. They may well be looking far more carefully (for all sorts of reasons which the smaller landlord will know only too well) at a much longer term of tenancy. I believe that this type of tenancy is ideally suited to the small landlord who has one or two properties. The more difficulties we put in his way, the more difficult it will

65
be to make that part of the rented sector work. It will reduce mobility of labour as well. Those would be unfortunate consequences.
6.15 p.m.
Lord Dean of Beswick: I do not wish to join in a Second Reading debate. However, the Government have been questioned about homelessness week after week and month after month, and we are always being told to wait for the forthcoming Housing Bill. We have been told that it will make a tremendous impact on the situation. I have heard nothing to date which will do that.
The Minister has been poorly briefed if he says that there is no historical evidence of the practice of key money being widespread. Key money was a feature in most housing that was rented before the large slum clearance schemes started. I paid key money for the first house in which I was a tenant in Manchester, and so did many other people.
I shall not speak of London because I was chided in a friendly way earlier in our debates when I referred to London as the pressure-cooker in the housing situation. However, the Minister has not convinced me that there is any difference between those people who want rented housing in Manchester, Liverpool, Sheffield or Leeds and the people in Glasgow. Why should there be a differential? Why should people who need houses to rent in England be treated differently from those in Scotland? I appreciate the point made by the noble Lord, Lord Taylor of Gryfe, when he gave us his vivid portrait of what actually takes place. He talks from experience about Scotland. I am also grateful to the noble Baroness, Lady Macleod of Borve, for her support. She said many things in her charming and humane way better and more forcefully than I could.
What type of key money are we talking about? If we are talking about the pressure-cooker of London, £125 or £150 per week is not a high rent. Where will people get down-payments for such properties? We are speaking of people whom the Government are supposedly dedicated to helping. We are not speaking of people at the top end of the market who tend to buy houses rather than rent them. We are talking about people who need houses badly and who will always need a substantial amount of assistance towards their rent.
Across the country over 50 per cent. of the people who are at present tenants of various types of housing ranging from local authority housing, housing associations and so on are receiving substantial financial support from the Government. To allow someone to be asked for key money—that is all we are talking about—in the centre of London or Manchester and the landlord to say that they can have the tenancy at £150 per week but they must put down £3,000, which is three or four months' rent, before they start to pay rent, will not take one homeless person off the streets of London or Manchester.
I am afraid that if the Minister cannot give a better reply—and he has not convinced me of the Government's case—I have no alternative but to test the will of the Committee.
The Earl of Caithness: Before the noble Lord decides finally, I think that it would be appropriate if I were to reply to some of the points which have been raised. I should like to stress to my noble friend Lady Macleod of Borve that housing associations can at present charge premiums for tenancies and that some do. Premiums can be charged under the Agriculture (Miscellaneous Provisions) Act of 1976.
I said that I had not heard of any complaint during the eight years of the old style assured tenancy regime. I think that the noble Lord, Lord Dean of Beswick, understood me to be speaking on a wider basis when I said that I had not heard of any complaint. There have been complaints, but to my knowledge they do not relate to the old style assured tenancy regime. However, where they do, it goes to show just how difficult it is to enforce the banning of premiums. Because of the restricted market some landlords have sought to get round the ban on premiums under the Rent Act.
I am grateful to the noble Lord, Lord Diamond, for raising the important point of housing benefit. I confirm to him that housing benefit is not payable on the premium; it is payable only upon the rental. We have agreed to increase that to take account of market rents. However, we doubt that that would put the tenants dependent upon housing benefit at a disadvantage. The reason for that is that the proportion of private tenants claiming benefit is such that if landlords were to charge a premium the choice of tenants who might apply to them would be reduced very severely.
The noble Lord, Lord Ross of Newport, suggested that if we do not prohibit premiums the scheme in the Bill will not work and the supply of rented homes will not be forthcoming. I fail to agree with him on that argument. I would turn the argument on its head, as my noble friends Lord Bellwin and Lord Trafford have just done to great effect. If we do not give landlords the freedom to charge market rents and, if the market justifies it, a premium, the supply certainly will not be forthcoming. To put barriers in the way of landlords who want to get tenants into empty property—as I am sure all Members of the Committee would want£can only be detrimental to the aims of the Bill.
The noble Lord, Lord Taylor of Gryfe, took me to task about Scotland. I challenge him on that point. Can he show me where premiums have been legal under any branch of Scottish law?
Lord Taylor of Gryfe: When this matter was discussed in the Chamber we made representations on the issue on the basis of the advice and briefing of Shelter, the National Federation of Housing Associations and all the other organisations which were deeply concerned with Scottish housing legislation. It was on their representation that it was desirable to abolish key money that we managed to convince the Minister's noble friend that it was desirable and an appropriate amendment was made.
The Earl of Caithness: I think that that goes to prove my point that, although some landlords in Scotland might have been trying to charge a premium, they would not have been doing so legally

67
under any branch of Scottish law for the reasons that I gave. Premiums have never been an accepted feature of the housing market north of the Border, whereas they certainly have been south of the Border.
The noble Earl, Lord Russell, reminded the Committee about Clause 22 and the rent assessment committee's powers. Where a tenant has referred a shorthold tenancy to it, the Committee will have power to consider the level of rent. However, I would just say to the noble Lord that when it does so it will also take account of any premium that has been paid so that the tenant will not be at a disadvantage as a result.
The noble Lord, Lord Stallard, raised a point which was discussed on the first day of Committee. I did not answer it in full on that occasion and perhaps this might be an opportunity to do so. The point was why any landlord should let on an assured tenancy in preference to a shorthold tenancy.
It seems reasonable to assume that, in a situation where rents are determined according to market principles, the rent for a particular tenancy will reflect the degree of security provided by that tenancy. One would therefore expect that, other things being equal, a full assured tenancy, offering long-term security of tenure would command a somewhat higher rent than a shorthold tenancy offering only limited security of tenure. Thus, for any landlord who is serious about long-term investment in rented property and who wishes to maximise the return on his investment, one very clear incentive to opt for a full assured tenancy rather than a shorthold is the prospect of obtaining a higher rent.
A further incentive arises from the fact that, as Members of the Committee will he aware, under the extended business expansion scheme for which provision has been made in this year's Finance Bill, generous tax relief is available on investment in companies specialising in letting property on full assured tenancy terms. Properties let on shorthold terms will not be eligible for that assistance.
Perhaps I could also remind the Committee that the way the legislation is drafted will ensure that any tenancy which does not satisfy the specific requirements for a shorthold, including in particular the requirement that the landlord serve the appropriate notice at the outset, will be a full assured tenancy. There is thus no reason to fear that the tenant will be at a disadvantage in a situation—and experience shows that it is not an uncommon situation—where the landlord and tenant are unclear about the law's provisions. Failure by the landlord to comply with the statutory requirements will simply have the effect of giving the tenant the benefit of a full assured tenancy. I believe there are sufficient safeguards to provide a wide spread of types of tenancy, from full assured to shorthold tenancy.
The noble Lord, Lord Dean, said that premiums would not help to house homeless people. It is true that a homeless person who is dependent on housing benefit will not be able to take a tenancy if the landlord charges a premium. However, it should be the total supply of housing which concerns us. If that increases as a result of the Bill it is bound to help the
68
homeless. That is the difference between us on this side of the Committee and noble Lords opposite. We want to increase the amount of housing that is rented, and the more obstacles that are put in the way of the landlord or the more the free market is interfered with the fewer landlords will voluntarily come forward with houses which we know are empty and which we want them to let.
Lord Dean of Beswick: The flood of tenanted houses that according to the Minister's reply was to become available has already been reduced to a trickle. He said in one breath that there was no evidence of key money or of this practice taking place; in the next breath he said that there was evidence of down payments and it seemed to work.
The Earl of Caithness: Perhaps I might just correct that statement. I said that there was no evidence of complaint in the eight years during which premiums were permitted as a result of the old style assured tenancy.
Lord Dean of Beswick: The point has been made before that there will not be any complaints. In my view the Minister has let the cat out of the bag. It will have little or no effect at all on the homeless people the Government have been talking about all the time. On the basis of that fact and the way the argument has developed in the Committee, I see no alternative to testing the views of the Committee.
6.30 p.m.
On Question, Whether the said amendment (No. 51) shall be agreed to?
Their Lordships divided: Contents, 69; Not-Contents, 129.

DIVISION NO. 2

CONTENTS

Addington, L.

Jacques, L.

Airedale, L.

Jeger, B.

Ardwick, L.

Jenkins of Hillhead, L.

Aylestone, L.

John-Mackie, L.

Banks, L.

Kennet, L.

Blackstone, B.

Lockwood, B.

Bonham-Carter, L.

McIntosh of Haringey, L.

Brooks of Tremorfa, L.

Macleod of Borve, B.

Bruce of Donington, L.

McNair, L.

Carmichael of Kelvingrove, L.

Masham of Ilton, B.

Carter, L.

Mayhew, L.

Chandos, V.

Meston, L.

Cledwyn of Penrhos, L.

Morton of Shuna, L.

Cocks of Hartcliffe, L.

Nicol, B.

Dean of Beswick, L.

O'Neill of the Maine, L.

Diamond, L.

Oram, L.

Dormand of Easington, L.

Pitt of Hampstead, L.

Ennals, L.

Ponsonby of Shulbrede, L. [Teller.]

Ewart-Biggs, B.

Fisher of Rednal, B.

Rea, L.

Gallacher, L.

Rochester, L.

Galpern, L.

Ross of Newport, L. [Teller.]

Graham of Edmonton, L.

Russell, E.

Gregson, L.

Seear, B.

Grimond, L.

Shackleton, L.

Hampton, L.

Stallard, L.

Hanworth, V.

Stewart of Fulham, L.

Henniker, L.

Stoddart of Swindon, L.

Hooson, L.

Strabolgi, L.

Houghton of Sowerby, L.

Taylor of Blackburn, L.

Hughes, L.

Taylor of Gryfe, L.

69

Taylor of Mansfield, L.

Winchilsea and Nottingham, E.

Underhill, L.

Wallace of Coslany, L.

Winterbottom, L.

Walston, L.

Young of Dartington, L.

White, B.

NOT-CONTENTS

Ampthill, L.

Lauderdale, E.

Arran, E.

Lawrence, L.

Auckland, L.

Layton, L.

Beaverbrook, L.

Lindsey and Abingdon, E.

Bellwin, L.

Long, V.

Beloff, L.

Lucas of Chilworth, L.

Belstead, L.

Lurgan, L.

Blatch, B.

Lyell, L.

Blyth, L.

McAlpine of West Green, L

Borthwick, L.

Mancroft, L.

Boyd-Carpenter, L.

Manton, L.

Brabazon of Tara, L.

Margadale, L.

Brougham and Vaux, L.

Marley, L.

Broxbourne, L.

Marshall of Leeds, L.

Caithness, E.

Merrivale, L.

Cameron of Lochbroom, L.

Mersey, V.

Carlisle of Bucklow, L.

Monk Bretton, L.

Carnegy of Lour, B.

Monson, L.

Carnock, L.

Mottistone, L.

Cathcart, E.

Mowbray and Stourton, L.

Clitheroe, L.

Munster, E.

Coleraine, L.

Murton of Lindisfarne, L.

Colwyn, L.

Napier and Ettrick, L.

Constantine of Stanmore, L.

Nelson, E.

Cottesloe, L.

Newall, L.

Cox, B.

Orkney, E.

Crickhowell, L.

Orr-Ewing, L.

Davidson, V. [Teller.]

Oxfuird, V.

Denham, L. [Teller.]

Pender, L.

Dilhorne, V.

Penrhyn, L.

Dundee, E.

Peyton of Yeovil, L.

Eden of Winton, L.

Platt of Writtle, B.

Elibank, L.

Quinton, L.

Elles, B.

Radnor, E.

Elliott of Morpeth, L.

Rankeillour, L.

Fortescue, E.

Reay, L.

Fraser of Kilmorack, L.

Rees, L.

Gainford, L.

Renton, L.

Gardner of Parkes, B.

Renwick, L.

Glenarthur, L.

Rodney, L.

Goschen, V.

Romney, E.

Gray of Contin, L.

St. Germans, E.

Greenway, L.

Saltoun of Abernethy, Ly.

Gridley. L.

Sanderson of Bowden, L.

Hailsham of Saint

Shannon, E.

Marylebone, L.

Somers, L.

Halsbury, E.

Southborough, L.

Hardinge of Penshurst, L.

Stanley of Alderley, L.

Harmar-Nicholls, L.

Stevens of Ludgate, L.

Havers, L.

Strange, B.

Henley, L.

Sudeley, L.

Hesketh, L.

Swinton, E.

Hives, L.

Terrington, L.

Holderness, L.

Teviot, L.

Home of the Hirsel, L.

Thomas of Gwydir, L.

Hood, V.

Thomas of Swynnerton, L.

Hooper, B.

Torrington, V.

Hylton-Foster, B.

Trafford, L.

Jenkin of Roding, L.

Trefgarne, L.

Johnston of Rockport, L.

Trumpington, B.

Joseph, L.

Ullswater, V.

Kaberry of Adel, L.

Waldegrave, E.

Kimball, L.

Wise, L.

Kinloss, Ly.

Wynford, L.

Kitchener, E.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.30 p.m.
[Amendment No. 52 not moved.]
Clause 24 agreed to.
Schedule 3 [Agricultural worker conditions]:
Lord Hesketh moved Amendment No. 53:
Page 101, line 35, leave out ("five") and insert ("two").
The noble Lord said: This is a consequential amendment which was overlooked when the qualifying period for succession to a Rent Act or Rent (Agriculture) Act tenancy was reduced from five to two years. I beg to move.
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Clause 25 agreed to.
Clause 26 [Rehousing of agricultural workers etc.]:
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 54:
Page 18, line 32, at end insert—
("(2) In section 28(7) of the Rent (Agriculture) Act 1976 the words 'use their best endeavours to' shall be omitted.").
The noble Lord said: Although it is mentioned in the explanatory note, and indeed my noble friend Lord Caithness stated at Second Reading that Chapter III, and in particular Clauses 24, 25 and 26, make provision for rehousing agricultural workers similar to that in the Rent (Agriculture) Act 1976, I cannot see that it does. The purpose of this amendment is to ensure that it does just that. If my noble friend Lord Caithness were in the Chamber he would remember that the situation at the moment under the Rent (Agriculture) Act is that when a farmer wishes to repossess a house for the efficient working of that farm he applies to the Agricultural Dwelling House Advisory Committee (ADHAC) to assess needs. Subject to ADHAC supporting such need, the local authority must use its best endeavours to rehouse the ex-farmworker. Despite my reservation, and indeed that of the Conservative Party, about the effectiveness of the words "best endeavours" when the Bill went through this Chamber in 1976, councils have in the great majority of cases rehoused agricultural workers eventually.
However, the situation in the future will be different. Councils will have less rented accommodation. In fact, in Anglesey the council hopes to sell off the whole of its housing stock. With the best will in the world it will not be able to offer suitable accommodation. I emphasise the word "suitable" because that is enshrined in the Rent (Agriculture) Act. Bed and breakfast accommodation would not be within the law as alternative accommodation.
I realise that the farmworker may be in a similar situation to the homeless, but I suggest that his position is worse. Whereas the local authority will still have a statutory duty to rehouse the homeless, it will need to show only that it has used its best endeavours so far as concerns farmworkers. My amendment would make it possible for the local authority to rehouse an agricultural worker whose house was needed by the business and whose rehousing had been recommended by ADHAC in line with the wishes of the majority of noble Lords and the Conservative Party when the Rent (Agriculture) Act went through this Chamber in 1976.
To put the problem in layman's language, it was relatively easy for a local authority which had its own housing to use its best endeavours to secure a house. When it has little or no housing it must surely require much more effort than before. I believe that this Bill must require some form of strengthening of the words "best endeavour". I am aware that my noble friend may well say that Clause 123 of this Bill will allow the Secretary of State to make sure that, before a council sells off its housing stock, sufficient provision is made for housing the agricultural worker. I really do not see how he, or indeed the local authority, can possibly make provision for rehousing an agricultural worker when it has only to use its best endeavours. Both could, and might, by legal interpretation of that phrase be forced to avoid this responsibility. Indeed, Clause 123 refers to the Housing Act 1985, which does not deal in that part with the need to rehouse. It deals only with the terms of the tenancy.
There is one other smaller point which affects agricultural housing. I have to ask my noble friend why Case 16 in Part II, Schedule 15 to the Rent Act 1977, is not included in Schedule 2 to this Bill? I have read the answer of my noble friend Lord Dundee as it applies to the Scottish Bill. But if this case were included in Schedule 2 it would give more flexibility than letting such tenancies be dealt with under the assured shorthold tenancy. For instance, the notice to quit under the assured shorthold tenancy is a minimum of six months; under Case 16, it is a month. Unless Case 16 is included in Schedule 2 it may well discourage landlords to let—a point made most forcefully by my noble friend Lord Bellwin on a previous amendment. I beg to move.
6.45 p.m.
Lord Carter: The noble Lord, Lord Stanley of Alderley, has pointed out that there is considerable concern in the agricultural industry about the effects of this Bill on the tied cottage situation. His right honourable friend the Minister for Housing and Planning Mr. William Waldegrave, wrote to me on this matter in response to a question. He stated:
"You also raised the question what the position of the ADHACs would be if the entire stock of a local authority were taken over by another landlord. If its stock transfers, the local authority nevertheless retains its existing responsibilities for the homeless. Its duties to take account of the recommendations of an ADHAC are allied to this. When a local authority seeks approval to a transfer, it will need to prove to the Secretary of State that it has made arrangements (probably with the new landlord) to enable it to fulfil its statutory functions, including the need to provide accommodation on the advice of the ADHAC".
I understand that to mean that the Government intend that if the local authority transfers its housing stock to a new landlord, it will place obligations on the new landlord to provide housing for farmworkers if the ADHAC requires this. We cannot find this proposal on the face of the Bill. It is left to the discretion of the local authority and of the Secretary of State as to whether this obligation will be transferred. We should like an assurance that the present arrangements will continue if the stock of housing is transferred.
The Earl of Radnor: I should very much like to support this amendment. It is a simple problem which deserves a simple answer. The simple problem has not been stated in so many words. It is that the agricultural system will fall down if workers of importance get stranded in cottages which are wanted for the person who would carry on the job which they are no longer doing. It seems very inefficient to rely on other parts of the Bill which are under some suspicion—as both the previous speakers have said—when there is such an obvious alternative open which is embodied in this amendment.
If councils had to follow this amendment, it would make absolutely certain that at the end of the day they kept enough stock of houses to deal with this problem. We are not talking about the other problems at the moment. They must keep enough houses so that the problem can be dealt with when it arises. We have heard what may happen in Anglesey. Perhaps the same problem is looming in other areas of England.
I cannot put the point too strongly. The agricultural system still depends on the tied cottage to a certain extent. I was against the old system being abolished at the time. I readily admit that the ADHAC system works extremely well. But at the end of the day it must depend on finding a house in which to put those workers when the ADHAC committee says that the cottage which they are in at the present time must be released. I strongly support the amendment.
Baroness Faithfull: When the Minister replies perhaps he will explain to me the Housing (Homeless Persons) Act. When I administered that Act, the local authority was under a duty to house homeless families in the way that suited that area the best. Does this not now apply, or does it not apply in country areas? I had thought that every local authority must by law under the Housing (Homeless Persons) Act house people who are homeless through no fault of their own. I should be very glad of clarification of that.
Lord Renton: Before my noble friend sits down I wonder whether she could clarify this point on the obligation to which she has referred with regard to homeless people. I understand that the local authorities are obliged by statute to provide immediately temporary accommodation for the homeless. However, then the homeless go on to housing lists, and have to wait their turn on housing lists before they can move from temporary to permanent accommodation. Is that not right?
Baroness Faithfull: Yes, it is right as I understand it, but if the local authority takes a long time—one, two or three years—to supply the accommodation for that family, they will remain in whatever accommodation has been found for them. We shall come to an amendment later which concerns bed and breakfast. This is why so many people are in bed and breakfast accommodation for so long—they have not been offered accommodation by the local authority.
Lord Stanley of Alderley: If I may I shall interrupt on that point because it is rather important. Under the Rent (Agriculture) Act these families will not even be put on the list. On the point made by my noble friend Lady Faithfull about the homeless, they are at least accommodated and are waiting to be put on the list. I merely want my people to wait.
Lord Ross of Newport: I have much sympathy with the amendment and interesting questions have been raised during the course of the debate. I hope that the Minister will be able to answer some of them. We read in the housing weekly bulletins, particularly those in the housing association movement, that certain councils in the country are already negotiating for the sale of the whole of their council stock. Torquay was said to be in a very advanced state of selling the lot. Gloucester was another city that was mentioned. Anglesey has a scheme of its own, and no doubt there are others.
Can we take it therefore that negotiations are taking place between the department and the authorities concerned to ensure that an obligation is being passed on to the successors in title of these properties, in some cases large housing associations, that they will have to take on board the responsibility for housing homeless people? If that is not the case, what will happen? They will have to stay in bed and breakfast accommodation for ever more and that cannot be acceptable to anybody in this place I am sure.
I agree that on the whole the system that was worked out for agricultural workers who were obliged to leave for one reason or another has worked. It certainly has in my part of the world. But it seems to be in some difficulty now. I am well aware that we have built fewer council houses in the last few years than at any time since the early 1920s. I was looking at the figures for housing associations and this year it is the worst year but two. We are building only about 20,000 units. But in spite of that and the additional burden that we are placing on the authorities to find these people homes, I still think it is right that agricultural tenants should be included under this protection. Therefore I hope the amendment will be supported.
I do not think there can be many people involved. I do not know how many people still have agricultural workers living on their farms, but we seem to be selling off every agricultural cottage in the country and every barn too. I do not think there is a single barn left in Shropshire that has not been turned into a house. Nevertheless we are not talking about very many people. I believe that the noble Earl agrees with me, but the few people we are considering ought to be included in this measure.
Lord Hesketh: This amendment would have us impose a duty on local authorities not actually to use their best endevours to provide suitable alternative accommodation for farmworkers whose landlords are seeking possession from them but actually to provide it themselves. In the majority of cases settled under Section 28(7) of the Act, it is of course the local authority who provides the suitable alternative accommodation. I think that there may be
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underlying this amendment a concern that, as local authorities are changing their role, and gradually becoming not so much providers of housing as enablers—getting other people to provide it—the position of the agricultural worker with rights under this Act may be adversely affected. It might help if I say a few words about this.
A system was established under the Rent (Agriculture) Act 1976 whereby a farmer who wants to repossess his property from a sitting agricultural tenant, possibly a retired one, in order to house an incoming worker, may apply to the local authority to rehouse the worker. The local authority may then seek advice from the agricultural dwelling house advisory committee—I hope noble Lords will forgive me if I refer to those as ADHACs from now on—for its area, and the ADHAC will make a recommendation to the authority to rehouse the worker if it considers the farmer has a genuine agricultural need for the property in question. The system, as my noble friend Lord Radnor said, has worked very well and is much appreciated by both sides of the agricultural industry. We have decided that it should continue to be available under the new regime of assured agricultural occupancies under this Bill, and this too has been welcomed.
Since local authorities on the whole rehouse agricultural workers from their own stock, I believe there has been concern as to what might happen if a local authority were to transfer all its stock to another owner. Would it then be able to fulfil its obligations towards agricultural tenants under the Rent (Agriculture) Act and under our Bill, as various noble Lords have asked?
The answer is that the local authority's duties to displaced agricultural workers are not dissimilar to its responsibilities under the homelessness legislation. When a local authority seeks approval from the Secretary of State to a transfer of its stock, it will need to prove to him that it has made arrangements, probably with the new landlord, to fulfil its statutory functions. The Secretary of State would not allow a transfer if he thought that a new landlord, or other bodies, could not rehouse agricultural workers as necessary in accordance with this legislation.
My noble friend Lord Stanley raised the point of a local authority fulfilling its obligation. I can only re-emphasise that by saying that it would be wrong to make local authorities provide housing in every case. The phrase "best endeavours" enables the local authority to use other agencies as well. This might need to be tested in the courts, but if the local authority had not found accommodation, the court might not find that it had fulfilled its best endeavours as laid down in the Bill.
Furthermore the noble Lord, Lord Carter, felt that the relationship of ADHACs should be put on the face of the Bill. It is already on the face of the Bill in Clause 26(1)(a) and (b), which cross-relates the provisions in the Rent (Agriculture) Act with assured tenancies in the Bill.
Finally, the noble Lord, Lord Ross, was concerned about negotiations with regard to new landlords. The duties of local authorities under the Rent

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(Agriculture) Act and this Bill are certainly being discussed with prospective landlords.
Lord Carter: It was not the role of the ADHAC that I wanted on the face of the Bill but the responsibility of the Secretary of State to ensure that the duty was carried out. Under Clause 123 the Secretary of State can taken into account any matters which he regards as relevant and we wonder whether that should not be spelt out. The matter which is relevant is the rehousing of agricultural workers.
Lord Hesketh: I am sure that the noble Lord, Lord Carter, will understand when I say that I cannot go any further than my honourable friend in another place and the letter which the noble Lord so eloquently quoted to the Committee earlier.
Lord Stanley of Alderley: I thank the Committee for the interest it has shown in this debate. I should like to comment on a few matters raised by my noble friend on the Front Bench. He said that the position of the agricultural worker was not dissimilar to that of the homeless. That is the point I am trying to make. It is dissimilar. In the case of the homeless there is a duty. In the case of the farmworker it is not a duty, and I shall explain exactly why I am worried about that duty having been weakened.
My noble friend went on to say that the position might have to be tested in the courts. That is just what I thought that the Committee was here for—to make sure that as little as possible is tested in the courts. That is what I am trying to do—otherwise it would have made my noble friend Lord Renton richer at an earlier stage!
The problem once again revolves round the words "best endeavours". I am pleased that my noble friend Lord Caithness is here because I suspect that he has heard this phrase before in past life. He has faith in the words, perhaps because they have worked in the past. But now the Government have moved the goalposts and I feel that I must alter the shot, and so must they.
I must ask my noble friend when he is on the beach this summer to read Shaw's Guide to the Rent (Agriculture) Act, 1976 by Mr. Hugh Rossi, published in 1977, pages 82 to 84. In that publication the words "best endeavours" are described. Quoted against them, among others, are two conflicting judgments. I am concerned most by the paragraph which states that because the Government are cutting back on the resources available to the local authority, the ability—indeed, the legal need—for the local authority to rehouse becomes much less. I believe that the duty becomes minimal and that worries me.
I realise that under Clause 123 it can be argued that the Secretary of State must ensure that before all the housing is disposed of those facts must be taken into account. However, looking carefully at the clause I do not believe that that is spelt out at all. As I said earlier, the clause refers to Sections 32 and 34 of the Housing Act 1985 which relate only to the terms and tenancies, not to the need to rehouse.
I hope that my noble friend will look at the matter.
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If he cannot accept the statutory need—I understand the problem which means that he may not wish to do so—I believe that we should look at Clause 123 in order to clarify the matter and to ensure that local authorities and the Secretary of State understand the need.
I do not believe that my noble friend replied to my query about Case 16. Perhaps he would rather do so at another stage—unless he wishes to do so now. No, he does not. I shall therefore have to raise the issue on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 agreed to.
Lord Hesketh: I suggest that this is a good time to break for dinner. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Black Country Development Corporation (Vesting of Land) (British Steel Corporation) Order 1988
  Black Country Development Corporation (Vesting of Land) (British Railways Board) Order 1988

    Black Country Development Corporation (Vesting of Land) (Central Electricity Generating Board) Order 1988
    Black Country Development Corporation (Vesting of Land) (General) Order 1988
    Black Country Development Corporation (Vesting of Land) (Borough of Sandwell) Order 1988
    Black Country Development Corporation (Vesting of Land) (Borough of Walsall) Order 1988
    7.2 p.m.
    Lord Hesketh: My Lords, I beg to move the orders standing in my name. The House may find it convenient if I speak at the same time to the other orders also in my name on the Order Paper.
    The 13 orders we are considering vest around 240 hectares of publicly owned land in two urban development corporations. Six of the orders deal with land in the Black Country Development Corporation's area and seven transfer land to the Tyne and Wear Development Corporation. We estimate that taken together, this land is worth around £16 million. The House may find it helpful if I explain some of the background to these orders.
    As your Lordships will know, urban development corporations are established under the provisions of Part XVI of the 1980 Local Government, Planning and Land Act. Their job is to secure the regeneration

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    of their designated areas. To achieve this they have a wide range of powers, including the powers to acquire, manage and dispose of land and property. One of the ways by which land can be obtained is by vesting orders made under Section 141 of the 1980 Act. This section empowers my right honourable friend the Secretary of State to vest in urban development corporations land owned by local authorities, statutory undertakers and other public bodies. It is orders made under these provisions that we are considering tonight.
    It was determined by a committee of this House that these orders were hybrid and therefore subject to the usual petitioning procedures. In the case of 11 of the orders no petitions were received. For the other two, holding petitions were lodged but were withdrawn following agreement between the UDCs and the bodies involved.
    I should point out that the Statutory Instruments Committee has drawn the special attention of the House to the Black Country Development Corporation (Vesting of Land) (General) Order on the ground that its drafting appears to be defective. It refers to plots on the deposited map edged with a stippled band while some narrow plots are shown wholly stippled. Although the committee accepted that there is no doubt which plots are vested by the order, nevertheless I must apologise for this oversight. I am grateful to the Statutory Instruments Committee for its agreement to proceed.
    The two urban development corporations affected by these vesting orders were set up in May, 1987. Shortly after their establishment each corporation produced a development strategy designed to bring prosperity back to the area. These strategies identified areas for early action and outlined the kinds of development the corporations were hoping to attract. In some cases it was clear that regeneration would only happen if the UDCs themselves had the land in question in their ownership. With the land in their control they will be able to assemble sites suitable for redevelopment, reclaim derelict and polluted land and service sites to make them attractive to investors. The orders currently before the House transfer such land in the ownership of public bodies.
    Vesting of publicly owned land is not the only way these UDCs will be acquiring land. Private sector land which is needed by the corporations in order to secure the regeneration will also be acquired either by agreement or, if necessary, by compulsory purchase. There may also be the need to acquire further publicly owned land in years to come.
    It is interesting that there are no outstanding petitions against any of the tranche of vesting orders my right honourable friend the Secretary of State has laid before Parliament over the last few weeks. It is also noteworthy that the orders currently before the House were debated in another place last week and were unopposed. I think all this demonstrates the goodwill there is towards the UDCs, and subject to the approval of your Lordships' House this land will vest in the UDCs and they can start the serious work of preparing it for redevelopment.
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    I am most grateful to the local authorities and other public bodies involved in these orders for the constructive approach they have taken which will allow the land to be transferred without delay. I am also grateful to my right honourable friends the Secretaries of State for Energy, Trade and Industry and Transport who are the co-signatories to the orders relating to the statutory undertakings they sponsor.
    Perhaps it would help your Lordships if I outlined briefly the problems which the Tyne and Wear and Black Country development corporations have been asked to address and also if I summarised the orders before us. The Tyne and Wear Development Corporation is located along the banks of the two rivers from which it takes its name. Its area has experienced the decline of traditional heavy industry and has been left with a legacy of industrial dereliction. Of the orders before the House three relate to land owned by local authorities. These orders cover 104 hectares of land owned by Newcastle City Council, North and South Tyneside borough councils and the Borough of Sunderland. The other four orders deal with a total of 17 hectares of land owned by the Port of Tyne Authority, British Coal, British Steel, British Shipbuilders and the Tyne and Wear Passenger Transport Executive.
    The Black Country Development Corporation also faces similar problems of dereliction and decline. Its area was once dominated by metal-based manufacturing industry, but the product of 200 years of industrialisation is an abandoned and neglected landscape. Much of the land is polluted and is pitted with mineshafts. Of the Black Country orders, three relate to land owned by Sandwell and Walsall metropolitan borough councils, and one of these orders also includes some land owned by the British Waterways Board and the Severn Trent Water Authority. Together the three orders cover around 105 hectares in 68 individual plots of substantially derelict contaminated or unused land. The remaining Black Country orders include 13·5 hectares of land owned by British Rail, British Steel and the Central Electricity Generating Board.
    In conclusion, both the Tyne and Wear and the Black Country development corporations have made an impressive start to the job of regenerating their areas. Projects are coming forward that will bring jobs, homes, leisure facilities and a general improvement of the environment. The prospects for both corporations are good. The vesting orders we are considering will, if approved by this House, provide the UDCs with the working capital which will help them do their job more effectively. If this House approves them this evening they will come into force tomorrow. I commend each of the orders to the House. I beg to move.
    Moved, That the Black Country Development Corporation (Vesting of Land) (British Steel Corporation) Order 1988 laid before the House on 29th June [33rd Report from the Joint Committee]; the Black Country Development Corporation (Vesting of Land) (British Railways Board) Order 1988 laid before the House on 1st July [33rd Report from the Joint Committee]; the Black Country Development

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    Corporation (Vesting of Land) (Central Electricity Generating Board) Order 1988 laid before the House on 4th July [33rd Report from the Joint Committee]; the Black Country Development Corporation (Vesting of Land) (General) Order 1988 laid before the House on 1st July [33rd Report from the Joint Committee]; the Black Country Development Corporation (Vesting of Land) (Borough of Sandwell) Order 1988 laid before the House on 1st July [33rd Report from the Joint Committee]; and the Black Country Development Corporation (Vesting of Land) (Borough of Walsall) Order 1988 laid before the House on 1st July [33rd Report from the Joint Committee] be approved.—(Lord Hesketh.)
    Lord McIntosh of Haringey: My Lords, we are grateful to the noble Lord for his introduction to the orders and for his candid admission for the shocking error in draftsmanship or map-making to which he confessed. He pointed out the fact that the orders were unopposed in another place. Certainly we do not wish to oppose them in this House this evening. Our understanding is that they give effect to the decision which Parliament took in May 1987 in setting up the urban development corporations. I understand that the vesting orders were made in conjunction and in full co-operation with the local authorities and public bodies concerned. On that basis it would be entirely inappropriate for us to dissent from the means having assented to the end.
    On Question, Motion agreed to.

Tyne and Wear Development Corporation (Vesting of Land) (British Shipbuilders' and British Steel Corporation) Order 1988
  Tyne and Wear Development Corporation (Vesting of Land) (City of Newcastle upon Tyne) Order 1988

    Tyne and Wear Development Corporation (Vesting of Land) (Various Local Authorities) Order 1988
    Tyne and Wear Development Corporation (Vesting of Land) (Borough of Sunderland) Order 1988
    Tyne and Wear Development Corporation (Vesting of Land) (Tyne and Wear Passenger Transport Executive) Order 1988
    Tyne and Wear Development Corporation (Vesting of Land) (Port of Tyne Authority) Order 1988
    Tyne and Wear Development Corporation (Vesting of Land) (British Coal Corporation) Order 1988
    Lord Hesketh: My Lords, I beg to move.
    Moved, That the Tyne and Wear Development Corporation (Vesting of Land) (British Shipbuilders' and British Steel Corporation) Order 1988 laid before the House on 29th June [33rd Report from the Joint Committee]; the Tyne and Wear Development Corporation (Vesting of Land) (City of Newcastle upon Tyne) Order 1988 laid before the House on 22nd June [32nd Report from the Joint Committee]; the Tyne and Wear Development Corporation (Vesting of Land) (Various Local Authorities) Order 1988 laid before the House on 22nd June [32nd Report from the Joint Committee]; the Tyne and Wear Development Corporation (Vesting of Land) (Borough of Sunderland) Order 1988 laid before the House on 22nd June [32nd Report from the Joint Committee]; the Tyne and Wear Development Corporation (Vesting of Land) (Tyne and Wear Passenger Transport Executive) Order 1988 laid before the House on 1st July [33rd Report from the Joint Committee]; the Tyne and Wear Development Corporation (Vesting of Land) (Port of Tyne Authority) Order 1988 laid before the House on 1st July [33rd Report from the Joint Committee]; and the Tyne and Wear Development Corporation (Vesting of Land) (British Coal Corporation) Order 1988 laid before the House on 1st July [33rd Report from the Joint Committee] be approved—(Lord Hesketh.)
    On Question, Motion agreed to.
    The Earl of Dundee: My Lords, I beg to move that the House do now adjourn during pleasure until 8 p.m.
    Moved accordingly, and, on Question, Motion agreed to.
    [The Sitting was suspended from 7.12 to 8 p.m.]

Housing Bill
House again in Committee.
Clause 27 [Damages for unlawful eviction]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 55:
Page 18, line 35, leave out ("20th November 1987") and insert ("9th June 1988").
The noble Earl said: In moving Amendment No. 55, I shall speak also to Amendment No. 56.
The new right to damages in Clause 27 is seen by the Government as a powerful deterrent to unlawful eviction. Landlords stand to lose the whole of any financial gain that they may make from getting the tenant out. In future landlords ought to think very hard before they harass or evict illegally their tenants.
The new right is at present effective in respect of actions committed from the day in November 1987 after the Bill was published. Our intention here was to deter landlords from attempting to avoid the new right to damages by getting rid of their tenants before the Bill came into force, although it would not of course be possible for a tenant to begin an action for damages under the clause until it has come into force.
The clause was however widened on report in another place on 9th June in that it was extended to

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cover actions by superior landlords and cases where the landlord knew that the tenant might leave as a result of harassment or persistent withdrawal of services. Those amendments were welcomed on all sides. The Committee will see that, as a result, the clause has become truly retrospective. That is unacceptable and an amendment is needed.
There were two possible ways of approaching the required amendments. One would have been to attempt to pick out those elements introduced in June and to make those effective from that time, leaving the effective date of the remainder of the clause in November 1987. The alternative, which we have chosen, is to make the clause as a whole effective from June. This is much simpler to achieve and avoids creating some rather messy provisions, which would have been more difficult to understand and to use. To the extent that the provision was intended as a deterrent, nothing is lost by bringing the date forward: either it has had an effect or it has not. As I have said, no actions can yet have been started under the provision. We all find truly retrospective legislation repugnant, and I hope therefore that the Committee can agree with these amendments. I beg to move.
Lord McIntosh of Haringey: I confess that there is a fine balance to be struck between the abhorrent principle of retrospection and the effectiveness of the legislation. When the Committee debated the matters in preliminary form last Thursday, the Government recognised the necessity for protection against harassment and eviction. One of the ways in which they sought to give effect to that undertaking was to introduce the measures as of the date of first publication of the Bill.
I am hardly surprised that no actions have been taken against landlords under the legislation: it has not yet taken effect so there could not have been any actions. That is not an effective argument. If, as I understand it, the Minister is saying that there have not been a significant number of cases where action would have been taken if the Bill had been enacted, them we are content to see the dates changed as proposed. I am happy to take the Minister's silence as confirmation that he has not been notified of a significant number of cases that would have required action had the Bill been in force.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 56:
Page 18, line 40, leave out ("20th November 1987") and insert ("9th June 1988").
On Question, amendment agreed to.
[Amendment No. 56A not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 57:
Page 19, line 5, leave out ("calculated to") and insert ("(or omits to do acts) which individually or cumulatively").
The noble Lord said: I spoke to Amendment No. 57 in introducing Amendment No. 1 earlier in Committee. As a result of a number of procedural discussions, it became clear that it would be better if Amendments Nos. 57, 60, 61, 62 and 63 were
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considered together without the paving amendment that was originally tabled.
I apologise to the Committee for tabling but not moving Amendments Nos. 56A and 57A. They were put down as evidence of the concern that the Law Society has felt about the adequacy of provisions for protection against eviction. As to the reason for not moving them, it makes for a cleaner debate to concentrate on the other amendments. If the slightly less positive proposals that we have put forward do not find favour with the Committee, we can return to the amendments to the Law Society later.
When speaking last Thursday to Amendment No. 1, with which these amendments were grouped, I spent some time on the activities of a certain number of landlords, including one landlord in particular, who not only is guilty of harassment over a considerable number of years but glories in his harassment activities. I undertook not to repeat my arguments in regard to that person or indeed the arguments echoed by a number of Members of the Committee.
I want to concentrate on five points in introducing the amendments that I believe would substantially improve the effectiveness of the Government's intention to provide good protection for tenants against harassment. It is not necessary to do this in any emotional sense; they are specific amendments which need to be considered seriously and I should like to have the Government's specific reaction to them. I hold myself available for any subsequent discussion that may be necessary if the Government think that that is the right way to approach the matter.
The first change in regard to Amendment No. 57, repeated in Amendment No. 61, is that, in addition to acts, the concept of omission to do an act is brought in. Those who follow such matters and know of the relationship between landlord and tenant will realise that, although there are clearly acts of harassment inimical to the interests of a tenant that can be carried out by a landlord, on many occasions a landlord omits to do something that he has contracted to do which is important to secure the tenant's peaceful and happy occupation of the premises.
Not being a lawyer, I have consulted lawyers and I am assured that the omission to do an act cannot be assumed to be included in doing an act. Therefore, there is something substantial added to the concept of an act of harassment by the omission of an obligation which in itself helps to constitute harassment. In that sense, I hope that the Government will agree that the amendment is a useful addition to the effectiveness of their proposals.
The second is the concept of individually or cumulatively. As Chapter IV is set down, an act can be said to be contributing to harassment and is judged on its own merits as to whether that individual act is looked at as something so bad that it falls within the scope of Chapter IV. I suggest to the Committee that we need to go further than that. The combination and the addition of a large number of acts which by themselves might be relatively small and not worthy of complaint, when combined could become worthy of complaint and add up to

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harassment, whereas once they could be safely ignored. I suggest that the concept of the cumulative weight of a whole series of what might individually be small acts is a useful addition. It assists in the protection of tenants and should be included in the Bill.
The third point, which arises directly from some of my remarks on Thursday about Mr. Hoogstraten, relates to the inadequacy of restricting the law on acts of harassment to landlords and their agents. The point I made, echoed by other noble Lords, is that all sorts of other people who are neither the landlords nor their agents can take part in harassment. The most common example is putting in noisy neighbours who are certainly not the landlords or their agents but who are put in with the deliberate intention of winkling out the tenant. These omissions to act ought to be counted as part of the evils to which this chapter of Part I of the Bill is addressed.
Fourthly, in the Bill we have the words "calculated to". These bring into the law which will have to interpret and implement this Bill the whole concept of the intention of the landlord or his agent as part of the necessary proof of an act or programme of acts of harassment. I suggest to the Committee that the concept of intention is very much more difficult to prove than the straightforward fact that these acts are taking place and can be seen to help to deprive the tenant of his rights and of his peaceful enjoyment of the premises. Therefore, the words "calculated to" and the concept of intention by the landlord and his agents do not help to make this part of the Bill effective and it would be better without them.
Related to that is my fifth point. The Bill states that the landlord knows or has reasonable cause to believe that the acts are leading to harassment. I suggest that, whether or not he knows it, it should be a matter of fact that the acts he is doing are leading to harassment and are depriving the tenant of his rights. These too should be taken into account in considering whether or not the landlord is acting illegally.
I undertook not to repeat the many examples from which it would be possible for me to show that these are not theoretical objections to the drafting of the Bill. They are objections which are backed up time and again by the practical experience of tenancy welfare officers in local authorities, of solicitors, law practices, law advisory bodies, citizens' advice bureaux, and so on. Over and over again there have been many examples of the inadequacy of the existing law to deal with the widespread but far from universal—I am not suggesting that a majority of landlords do this—harassment where there is a strong financial incentive for the landlord to seek to remove a tenant.
Surely it must be right for us, in welcoming the Government's moves in this direction, to endeavour to make those moves as effective as possible. I believe that my amendments make the provisions more effective and that they deserve serious consideration and I therefore commend them to the Committee. I beg to move.
8.15 p.m.
Lord Coleraine: The noble Lord has opened up a wide ranging possibility for debate. He is, I believe, speaking to amendments in his name to Clauses 27 and 29. I suspect he is also inviting us to look at the other two amendments which emanate from the Law Society.
I should like to consider the word "calculated". It seems to me that much of the problem covered by this series of amendments arises from that word. In our debates last Thursday my noble friend Lord Renton drew attention to the fact that "calculated" could be interpreted as "likely" or as "intended". His view was that it was interpreted as "intended". That is the view taken by the noble Lord, Lord McIntosh.
The word is used in the Protection from Eviction Act 1977 and I believe its use in this Bill directly follows from that. The editors of Halsbury's Laws of England suggest that generally the word would be intended to mean "likely" rather than "intended". I ask my noble friend the Minister whether it would be possible to have the Bill use the words "either likely or intended". I believe that the word "calculated" is confusing the Committee and is likely to confuse practitioners and others who look at the Bill when it becomes law.
There is a considerable distinction to be made between the proposed amendments to Clause 27, with which I have some sympathy, and those to Clause 29. Clause 27 deals with civil damages and in a sense, therefore, it is probably right that the standards of liability that affect a landlord in the case of civil damages may be less onerous than those which apply in criminal proceedings which are covered in Clause 29. However, it is difficult to see how one can allow a tenant to have the automatic right to these damages in the case cited by the noble Lord of a whole series of cumulative acts or omissions. I say that because the remedies available to a tenant which he can bring himself are immense. They are set out in Clause 28 and include the right to the profit which the landlord might have made if he gets possession wrongly under Clause 27.
There is here a grave difficulty in that a whole series of complaints can be made by a tenant which relate perhaps to damp or to the roof falling into disrepair and not being remedied. These are perfectly serious problems and the tenant has remedies under the existing law to set them right. If, by these amendments he is enabled merely to sit by and ultimately to move out, then one has a difficult and unsatisfactory position. The landlord may find—without really knowing what the complaints of the tenant are and having had no proper opportunity to put matters right or direct his mind to the consequences which might follow under this clause as amended—that the tenant leaves having done very little to put things right and then claims colossal damages under Clause 28. I believe that there is room for getting this situation right and possibly for change. I hope that the noble Lord will ultimately take the amendments back, think again, and return with them at a later stage.
Baroness Gardner of Parkes: I am not happy with the amendment as suggested, or with harassment. I believe the Bill will make it easier for people to obtain legitimate possession in legitimate cases. It is creating kinds of tenancies that, as I have said before, should make available a wider rental market. I believe it is even more important that in such cases which remain protected people have adequate protection.
I support the amendment as regards reference to the word "calculated". In any court of law it is extremely difficult to prove how calculated a matter is. At the moment I am helping a lady whose landlord is attempting to remove her from her basement flat. He will be able to do so because he is a resident landlord; he will be able to get a court order. However, the way in which it is being done is so unpleasant that it almost constitutes harassment. For example, the right to use the garden has been withdrawn and washing cannot be put outside which was previously possible during all the years she has lived in the flat. Children are pushed when they enter the flat.
When the lady wrote to the solicitor asking that at least until the court determined the action she should be able to remain there in peace and not suffer any degree of harassment, a reply was received which I consider to be almost harassment in itself. The letter asks whether she is making defamatory remarks about the client. The poor woman is being terrified. She was not born in this country; she does not know what is meant by defamation. I am unhappy with the word "calculated". I do not support the amendment: I wonder whether that word can be removed and the sentence stand on its own without it. In a court of law to prove calculated harassment is very difficult. The acts should speak for themselves whether they are serious or of a less serious character. The accumulation or combination of many different events should speak for themselves. Although I do not support the amendment, I believe it is very important that this aspect of the Bill should be strong.
Lord Monson: As I have not agreed very often so far with the noble Lord, Lord McIntosh of Haringey, during the passage of this Bill, I am pleased to say that I have considerable sympathy with him as regards Amendment No. 57 though, as the noble Lord, Lord Coleraine, said, the drafting may be technically defective. I should like it modified by the acceptance of Amendment No. 57B or some later variation of it which would provide a safeguard. It is a great pity that Amendments Nos. 60 to 63 have been grouped together because they are all different. They do not hang or fall together. I believe that Amendments Nos. 60 and 61 may be acceptable though I am not at all sure. Certainly, Amendments Nos. 62 and 63 go much too far. It is a pity that they are being taken together; they should be discussed individually.
The Earl of Caithness: I should like to start our debate on Chapter IV of Part I of the Bill dealing with protection from eviction by stressing once again that the Government are unequivocally opposed to harassment and illegal eviction by landlords. We are determined to see that the law deals effectively with
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landlords who behave unacceptably and that their victims are properly compensated. The provisions of this part of the Bill are an earnest of our intentions. We also propose to discuss with the Magistrates' Association whether there is any guidance which it can give to its members about appropriate penalties for those who are convicted. We intend to issue advice to local authorities about the use of their prosecution, control order and compulsory purchase powers in relation to cases of harassment.
Clause 27 provides a new civil right to damages for tenants and licensees who are illegally evicted or driven out by harassment. The right is in addition to, not a replacement of, rights to damages which tenants may have under the existing law. The novel feature is that the damages are to be based on the landlord's financial gain from evicting the occupier; that is, the difference in the capital value of the premises with and without the occupier. In extreme cases the sums involved could run into tens of thousands of pounds. We recognise this and we see Clause 27 as a significant deterrent to harassment and illegal eviction. The clause has already been significantly strengthened by amendment in another place.
Although I have some sympathy with the aims of the first amendment, Amendment No. 57, in our opinion goes too wide. The potential damages under this clause are so substantial that a reasonably exacting criterion is essential. The amendment could catch virtually any act or omission by a landlord or his agent which could cause someone to leave their home, even acts of a comparatively trivial nature.
First, it seems to me to be unacceptable to omit the word "calculated" in subsection (2)(b). If the landlord's behaviour was not designed to interfere with the occupier's peace or comfort, he ought not to be liable to damages. As regards the word "calculated" itself, the Government's view is that the word has an everyday meaning. It implies some intention on the landlord's part. So the Government agree with my noble friends Lord Coleraine, Lord Renton and Lady Gardner of Parkes and also with the noble Lord, Lord McIntosh of Haringey. Here, the word means intended. We shall certainly consider whether there is a case for amending the Bill to clarify the word in this respect. It seems clear enough to me at the moment but I shall look at it between now and another stage.
Second, the extension of the clause to cover omissions would be very far-reaching. The result could be that if the landlord failed to keep the dwelling in good repair so that, for instance, the roof leaked badly causing the tenant to leave, there could again be a right to damages under Clause 27. No one disputes the tenant's need to have adequate remedies where his landlord fails to carry out repairs and this Bill increases them. But surely, damages on this scale are quite disproportionate.
The third element in the amendment—the concept of the cumulative effect of the landlord's acts—I would argue is already present in the clause. Although harassment is a very unpleasant phenomenon, we should not react to it by placing on the statute book a new tort which is so wide that it

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penalises by disproportionately heavy damages behaviour which is innocent or, even if undesirable, does not merit this sort of treatment. Surely, if the landlord did not intend to interfere with the tenant's peace or comfort he ought not to be liable for damages.
I turn to Amendments Nos. 60 to 63. It is already an offence under the Protection from Eviction Act 1977 to harass a residential occupier with the intention of causing him to leave his home. There have been comparatively few prosecutions for that offence and disproportionately few have led to convictions. One of the reasons for this appears to be that though it may be possible to prove that the person committed the alleged acts, it is often much more difficult to show conclusively that he intended to make the tenant leave. Clause 27 therefore provides an additional offence where a landlord or his agent committed acts calculated to interfere with the peace or comfort of a residential occupier or withdrew services and in either case knew that the occupier would leave as a result.
We believe that the new offence should be easier to prove. The tests which have to be applied are less severe than under Section 1(3) of the 1977 Act. But in drafting the new offence we were very conscious of the risk that, if we made it too wide, we could quite easily penalise innocent behaviour or behaviour which, although anti-social, certainly ought not to be criminal. I am afraid that that is exactly the trap which the noble Lord, Lord McIntosh of Haringey, has, at least in our view, fallen into with these amendments. Amendment No. 60 enables the offence to be committed by any person not just the landlord or his agent. That we believe is too indiscriminate and carries too big a risk that third parties would be convicted for behaviour which ought not to fall within this—noise, for instance; the neighbour who plays loud music. That may be anti-social but there are ways of dealing with it other than by this offence, which attracts potentially heavy penalties.
Perhaps I may recap on what those might be. There is remedy under Sections 58 and 59 of the Control of Pollution Act. There is remedy under Section 84 of the Rent Act 1984. There is remedy under Section 98 of the Rent Act 1977. There is also civil action. Those are the alternative powers to the draconian ones that the noble Lord wishes to include by his amendment.
Amendment No. 61 is unacceptable for similar reasons, reasons which also applied in the case of the noble Lord's amendment to Clause 27 and which I explained in that context. Amendment No. 62 will not do because its effect could be that a person could commit an offence where he did not intend to make the occupier leave, did not know that he would leave and could not have had reasonable cause to believe that he would leave. Under those circumstances it seems hard to defend.
As for the fourth amendment, Amendment No. 63, that deletes the landlord's defence in a case where he had reasonable grounds for withdrawing services; for instance, in a case where the electricity or water supply had to be turned off while building works were carried out. I find it difficult to see how such an amendment can be justified.
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My noble friend Lord Coleraine was right to point out the difficulties for landlords posed by some of the proposals of the noble Lord, Lord McIntosh of Haringey, but I quite appreciate the strong feeling throughout the Committee of getting this part of the Bill right. There is no doubt that the Government have introduced new powers greater than any other Government have sought for the protection of the tenant against harassment and eviction. What is important is that we get the wording precisely right to suit all Members of the Committee without going too wide to catch innocent people, and I should be happy to discuss that between now and Report stage.
8.30 p.m.
Lord McIntosh of Haringey: I am grateful to the Minister for his explanation. I am grateful also to those on the Government Benches and to the noble Lord, Lord Monson, for their support for individual parts of my amendments although I do not claim that any of them have supported the whole series. I must point out that the amendments are framed within the context and in the spirit of the Government's own clauses and within the spirit of Chapter IV of Part I. We have not attempted in any way to change the definition of what harassment is about. The phrase,
"interfere with the peace or comfort of the residential occupier or members of his household",
is one with which we are content. We have not attempted to change it in any way. If we had done so, the Minister's criticisms of our amendments would perhaps have had more force. Similarly, we have not attempted in any way to change the concept of damages as set out in Clause 28. We believe that these are good definitions.
We think that significant changes are brought about by the concept of penalising the landlord to the extent of the financial gain which he might make from the tenant's vacating the premises. We have not criticised that and in this respect as well we do not propose any fundamental change to the series of new proposals being put forward by the Government. On more than one occasion we have expressed our appreciation of the Government's intentions in this matter. We are suggesting that, just as previous legislation has not stopped harassment, there are still significant risks that the Bill as drafted will have loopholes which will allow landlords to get away with harassment despite the good intentions of the draftsman in preparing this chapter of Part I.
The noble Lord, Lord Coleraine, made a fair point when he said that it would be necessary to ensure that the landlord was notified about what was being complained of. We have made the same point when talking about possession in other parts of the Bill. I am glad that the noble Lord thinks that a similar concept is appropriate to protect landlords. I hope that he will also support us when we use that concept in respect of tenants to ensure that they should be properly notified of what complaint there is as a basis for the landlord seeking to gain possession of the premises by law.
The noble Baroness, Lady Gardner, whose efforts in this matter are well appreciated by her neighbours and friends, made valid points about the adequacy of

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the existing legislation. I am grateful to her for them. I am particularly interested in the arguments as to whether "calculated" means "likely" or "intended". It has occurred to me that if it does, as I thought, mean "intended", it ought to say so and that "calculated is ambiguous. Perhaps the Minister ought to think again about that. Whether or not it means "likely", my amendments are defective in not putting in "likely" and leaving it to say that it is the effect rather than the likely effect which is the true test. My amendments would have been stronger from my point of view if I had taken out "calulated" and put in "likely". To that extent I recognise that my amendments are defective.
These are complex matters on which many people both inside and outside the Chamber have far greater experience than others. However, it is common experience over the years that landlords have greater power to command legal services than tenants and that generally speaking the law tends to be interpreted by the courts in favour of landlords rather then the other way round. Therefore any additional protection which does not challenge the Government's definitions of harassment—as we are not challenging them—or the concept of damages—which we are not challenging—ought to be treated seriously. However, because of the defects in the individual pieces of wording, which we recognise, it would be better if I took the amendments away and accepted the Minister's invitation to talk to him again about how to produce something which could be acceptable to all sides of the Committee and would meet the widely expressed concerns about the drafting of the Bill.
I recognise that it is a difficult matter to get right the first time. I think we all want the same thing and I am convinced that we want this part of the Bill to be effective. I am convinced also that some of the concepts which I introduced in the amendments will in the end commend themselves to the House at a later stage of the Bill. It is on that basis that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 57A not moved.]
Lord Meston moved Lord Meston moved Amendment No. 57B:
Page 19, line 12, leave out ("shall") and insert ("may").
The noble Lord said: In moving this amendment I wish to echo appreciation of the Government's welcome concern about harassment in general and unlawful eviction in particular. The purpose of this amendment is to express certain misgivings about the provisions for additional damages for unlawful eviction and to invite a critical re-examination by the Government of the proposals.
Clauses 27 and 28 prescribe an additional measure of damages in unlawful eviction cases, the measure prescribed being the difference between the value of the premises with the tenant in occupation and the value with the tenant out of occupation. The basic concern underlying the amendment is that the Bill makes that measure of damage a mandatory head of damage, additional to the other liabilities which the landlord may very properly and rightly have to pay as a result of his wrongful act.
In looking at this section of the Bill one must not lose sight of the fact that the courts will continue—I mean the civil court in this respect—to award ordinary damages and aggravated damages to compensate tenants for whatever injuries they have suffered. They may be personal injuries; financial loss and expense; damage to property; damage for disruption and inconvenience, and so on.
Similarly, one must not overlook, as I think in some ways the Bill does, the fact that the courts have already been well used to awarding what are called exemplary damages when landlords behave outrageously. The difference between what happens now and what will happen under the provisions of the Bill is that at present such awards are made but they are made on a discretionary basis, the courts being prepared to recognise that the landlord's conduct—however outrageous—is not always designed to make a profit.
In practice, one knows this from many years of arguing in county courts and pleading such cases, wrongful evictions often arise as the culmination of years of mutual provocation—it is often six of one and half a dozen of the other. As the law stands, at least, provocation by the victim can reduce or extinguish the victim's entitlement to exemplary damages without affecting his entitlement to ordinary damages. It is not clear that that will happen under the provisions of this Bill.
Therefore the purpose of the amendment is to invite the Government to think twice about what seems to be a somewhat arbitrary and inflexible extra measure of damage which may not always produce a just result. I think that the Government should recognise what the courts are able to do at present and preserve the discretion of the courts in awarding damages.
There are several further points I should like to make. Although the expression I have used is "arbitrary", it is also fair to say that such damages will be variable to a great degree between different parts of the country. The difference between the tenanted value and the vacant possession value might be very great in London—however modest the property—especially if one looks at Clause 28(2), which requires the court not to consider the part of the property from which the occupier has been evicted but the value of the whole building. That will punish the landlord, and perhaps Members of the Committee may think, "A jolly good thing too!" However, it could—I emphasise the word, "could"—far exceed the true measure of the evicted tenant's loss, not forgetting that that person will still be able to obtain his ordinary compensatory damages. Indeed, if he is rehoused, as he may well be, by the local authority, it will be the local authority which will suffer the ultimate loss and which is arguably more entitled—or as much entitled—to damages than the tenant.
There are one or two other factors which I should like to mention. Most serious cases of eviction are likely to have been dealt with very severely—usually, that is, with a heavy fine but, sometimes, with imprisonment—in the criminal courts. However, under the provisions of this Bill the civil court seems

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to have no discretion to take that fact into account, one way or another. There is a risk of a double penalty. Indeed, it occurs to me—although I may be quite wrong about this—that if the landlord causes three occupiers to be evicted simultaneously, each of those occupiers will be entitled to the whole of the unlocked value of the property under the provisions of the Bill as I read it.
There are also other concerns. The clause may encourage tenants with perhaps rather more doubtful cases to undertake litigation because they have a lot to gain. As the Minister said, the potential range of damages under this clause is substantial. If it is true that tenants will be encouraged to litigate, when they do so landlords frequently counterclaim and the stakes will be very high. The courts will then be forced to hear a replay of years of bickering between the two parties. Indeed, if the tenant proves unjustified in pursuing his case to court and loses, it is probable that the successful landlord will be unable to recover his costs.
One other factor which should be borne in mind is that this clause, and the proposed method of assessing damages, will inevitably require both sides to produce to the court costly valuation evidence. It is likely that the Legal Aid Fund will have to pay, at least initially, for the tenant to employ a valuer to produce a figure. The landlord will then call in his valuer to produce his figure—and, if Members of the Committee think that lawyers thrive on disagreement, so, too, do valuers. The court will need such evidence in order to quantify what the Bill requires it to do.
Therefore I venture to criticise these two clauses because they take away from the courts the discretion that they presently have and they fail to recognise what the courts already do. Further, one final aspect is missing, and that is an aspect which would go a good way towards obviating the need for this particular measure. If the Bill provided a direct power in the courts to reinstate tenants without further ado—subject of course to any third party rights—then that would strike at the root of this form of harassment and take away the need for the kind of litigation which I have suggested may well arise. I beg to move.
8.45 p.m.
Lord Monson: As Members of the Committee will realise, I am not a lawyer and there is no way I could hope to emulate the brilliant and comprehensive exposition of the amendment made by the noble Lord, Lord Meston. However, as a layman, there are two things that I have always understood about the law. The first is that in every normal civil action the court is empowered to reduce the damages which would otherwise have been awarded to the extent that the plaintiff has contributed by his own irresponsibility, stubbornness or malevolence to the unfortunate situation in which he finds himself. On the latter point—that is to say, malevolence, or unscrupulous behaviour—to which the noble Lord, Lord Meston, has alluded, I am sure that even the noble Lord, Lord McIntosh, would concede that on
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occasion you can find wicked tenants as well as wicked landlords. Why, therefore, should the courts be prevented in this one instance alone from reducing damages on these rare occasions?
The second point I should like to make is this. The courts are always meticulous and painstaking and if Parliament makes it clear in the statute that it wishes courts to award full damages—except in those rare cases—to the plaintiff, then the courts will automatically act in a careful and responsible manner. It is possible that the word "may" will not adequately convey to the court the degree to which Parliament wishes full damages to be the norm, rather than the exception. Therefore it may be that the noble Lord, Lord Meston, will wish to withdraw the amendment at the end of the debate and come back at a later stage with something a little more complex to cover that point, but I hope that the Government and the Committee will concede how just and "commonsensical" the principles of the amendment are.
Lord Jenkin of Roding: As a young barrister's pupil, I was the tenant of rented accommodation and had occasion with my wife—recently wedded—to tangle with the landlady of the flat in which we lived. I suppose that for a week or so we were subject to harassment. My wife could not hang the nappies out in the garden; we were not allowed to use the indoor loo, but had to use the outdoor one, and so on. It was all a row which blew over. But the very strong impression of unfairness and of impotence which a tenant feels in such circumstances has never left me. Accordingly, when discussing the measures that were to be included in the Bill, which began when I was Secretary of State for the Environment, I was foremost among those arguing that Part I should be accompanied by firmer rules and provisions against harassment. I was therefore pleased to see not only the strength of the provisions that had been written into the Bill when it was introduced but the amendments moved and accepted in another place.
No one should for one moment doubt my determination to ensure that the law should operate stringently to prevent harassment of tenants. I listened to the noble Lord, Lord Meston—I was a pupil in chambers with his father, although he was not my pupil master—and I believe that there is something in the case that he and the noble Lord, Lord Monson, have made. I do not believe that they have the wording right. The substitution of "may" for "shall" leaves the provision too much at large and effectively waters down the stringency of the provision to make it far less effective than the Government and I would wish it to be. However, at the same time it is open to the creation of injustice if a court is to have no way of assessing the conduct of the parties in the circumstances of the case and is bound to impose exemplary damages as provided for in Clause 28.
I therefore hope that the noble Lord, in the light of what is said, will feel it right not to press his amendment to a Division. If he did, I should be unable to support him. At the same time, I believe that there is a case to be made for leaving the court some opportunity to use its discretion along the lines

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that if the damages, as assessed under Clause 28, are manifestly unjust in all the circumstances of the case, some lesser sum my be awarded. There may be some word which makes it clear that in wholly exceptional circumstances the full rigour of the clause should not apply.
I doubt whether that would ever amount to an invitation to a landlord to harass a tenant and procure an illegal eviction; but it would allow a court to take account of the other circumstances. Noble Lords have mentioned the wholly unreasonable tenant who over a long period has engaged in thoroughly provocative and anti-social behaviour. It can never be six of one and half a dozen of the other, as the noble Lord, Lord Meston, suggested, because one man will have lost his dwelling. Nevertheless there are circumstances in which a court may feel it right not to visit the full rigour of the clause on the landlord. In his discussions the noble Lord, Lord Meston, may like to embody that possibility with a view to bringing an agreed amendment before this Chamber at a later stage. Something needs to be done if fairness is to operate in this case: Although the amendment is not the way to achieve it, we may have an opportunity to look at the matter again to see whether we can achieve the objective in some other way.
Lord Trafford: I have sympathy with the amendment, because it always concerns me when a court does not have freedom of action with regard to a penalty that it imposes; in other words, the penalty is mandatory. That has two effects. The first is that a court is much less likely to find for the aggrieved party merely because in its view the penalty is totally disproportionate. It may therefore be inclined to say that it is better not to impose a massive penalty on a landlord and to leave the tenant as he is because everyone will have had a warning. Thus the purpose of the clause would be defeated and the law would be brought into disrepute, which is never a terribly good thing to happen.
My second point is that it would seem to be reasonable that, as the old saying goes, the punishnment should fit the crime. In other words, the level of damages (the penalty, so-called) should match the degree of harassment. I hear that word pronounced with the stress on the first syllable more commonly in this place. I prefer the stress to be on the second syllable, though I am told that that has an American touch about it. Be that as it may, one should, if possible, encourage a court's capacity to assess the situation on its merits. Again, like my noble friend Lord Jenkin of Roding, I do not believe that "may" is the correct word. It is too wide. I hope that my noble friend the Minister will look again at this matter. We could shoot ourselves through the foot with this type of clause as it stands, but at the same time I believe that the amendment may be drawn too widely.
Lord McIntosh of Haringey: I agree with the noble Lord, Lord Trafford, about the pronunciation of "harassment" with the accent on the second syllable. It has a much more pejorative rasp and is clearly much more effective.
Lord Jenkin of Roding: I always took the view that if Mr. Rachman had not been called Rachman but had been called McIntosh we would never have heard of him.
Lord McIntosh of Haringey: The noble Lord does not know about anti-Scots prejudice. I assure the noble Lord, Lord Meston, that I recognise that there are tenants who behave badly. That is human nature. I agree with the noble Lord, Lord Jenkin, that we must preserve the thrust of Chapter IV. We must do nothing to weaken it unnecessarily or damagingly. I fear that to change "shall" to "may" runs the risk of the courts on the whole going over to the other side. However, it is only a matter of days since I was defending strongly the concept of the court's discretion. If we reached the stage where a court would not convict a landlord because the law was too rigid, we should not achieve our objective. To that limited extent, although I do not support the amendment, there is a point at which the Government would do well to reconsider.
Lord Coleraine: The noble Lord, Lord McIntosh, referred to a conviction and my noble friend Lord Trafford talked about the punishment fitting the crime. Surely, we are here dealing with civil proceedings. It has occurred to me during the debate that there is something inherently wrong in any tenant having the benefit of what may be colossal damages. I cannot help wondering whether my noble friend will consider bringing back this provision as part of a later clause to amend the Protection from Eviction Act, because it seems to me that it is a crime rather than a civil matter.
The Earl of Caithness: The clause provides that where a tenant is eligible for damages in respect of a liability other than the loss of his right to the accommodation, he may claim separate damages for the liability. However, he may not claim damages for the loss of his right both under this clause and under other provisions. He cannot obtain damages for the same loss twice, but he may obtain damages for different reasons. That clarifies a point to which the noble Lord, Lord Meston, alluded when he said that a tenant may receive more than one set of damages for the same item.
The amendment is intended to suggest that if a tenant is eligible for damages it should be at the discretion of a court as to whether he receives them. We do not believe that to be an acceptable view. The whole point of the clause is that it introduces a penalty on the landlord who engages in harassment and illegal eviction. If the landlord's behaviour is such that the tenant finds that he is entitled to damages, then he should have them.
Although I understand what my noble friend Lord Jenkin of Roding said, one reason for choosing the word "shall" rather than "may" and allowing the court discretion is that under the present law the damages awarded have been derisory. The largest award of damages recently recorded in a case of extreme harassment was about £ 4,000. That sum simply did not reflect the tenant's loss. We want the courts to award damages which fully compensate the

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tenant, not to be able to reduce the sum to a point where every landlord can afford to harass, knowing that the gain he makes from his illegal action will outweigh the penalty imposed by the courts.
The noble Lord, Lord Meston, suggested that the tenant could obtain damages both under Clause 27 and under the present law. As I explained, that is something that he cannot do. The noble Lord shakes his head. Doubtless he will explain why I am wrong in my assumption in due course.
The noble Lord, Lord Monson, felt that the damages might be excessive for an awkward tenant. It may be the case that an awkward tenant provokes his landlord. There may be fault on both sides, but in the end the landlord who harasses a tenant out of his property has committed a criminal offence. It is a criminal offence, I say to my noble friend Lord Coleraine. The fact that the tenant may have been awkward is not relevant at that stage. I put it to the noble Lord, Lord Meston, that if we undermine the strength of this clause by providing that in certain circumstances the landlord may not have to pay this penalty, we are affecting its power as a deterrent. We do not want to weaken this clause and I suggest to Members of the Committee that the noble Lord's amendment does just that.
I understand the point made by my noble friend Lord Jenkin that there might be a case for discretion in some areas. That is obviously a point I should like to look at between now and another stage. To have the noble Lord, Lord McIntosh, agreeing with my noble friend is too much to tolerate at this hour of night!
9 P.m.
Lord McIntosh of Haringey: I thought that my measure of agreement was very limited indeed. Perhaps I may say in response to what the noble Earl has just said that I agree entirely with him. I think he has provided a very satisfactory answer to all the criticisms which have been made of this part of the Bill.
Lord Meston: I am most grateful to all Members of the Committee who have spoken on the amendment and for the authoritative, albeit qualified, support of the noble Lord, Lord Jenkin. I am glad he survived both his pupillage and his harassment—however that should be correctly pronounced.
The point I was making about not excluding other remedies is that as I read Clause 27(4), it provides that any liability arising under the clause shall be in addition to any liability arising apart from the clause. I shall of course be corrected if I am wrong but I think that is meant to provide that, although this proscribes a measure of exemplary damages, it does not rule out the ordinary damages which the evicted tenant can also recover and would not rule out aggravated damages.
The concern of Members of the Committee expressed in this debate is at the rigidity of the provisions. They provide potentially very substantial damage to a tenant. I suspect that many of these cases will be taken way out of the present county court
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jurisdiction. The provisions disregard the tenant's duty to mitigate; they will encourage litigation. As the noble Lord, Lord Coleraine, has said, we shall run the risk of overlooking the criminal nature of this measure. However, I am the first to accept that the form of this amendment is not particularly subtle and some more thought needs to go into it. For that reason, I do not press the amendment and beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Meston Lord Meston moved Amendment No. 57C:
Page 19, line 27, leave out ("begun") and insert ("concluded").
The noble Lord said: The purpose of Clause 27(6)(a) is presumably to provide an incentive to the landlord to reinstate the tenant. I have already said that I much prefer to see in this Bill an express power in the court to direct reinstatement. It would take away much of the debate, I suspect. However, this amendment is to suggest that if reinstatement occurs, not by the beginning of any legal proceedings but rather by the end of those proceedings, the landlord should in those circumstances be able to avoid the extra damages for which these clauses provide. The factual position then will be that the tenant will be back in his home, and the landlord is likely to have had to pay all his costs together with the other damages for which he is liable.
The reality of life is that it is not until the door of the court is reached that the wrongful party sees the error of his ways and sees his position with clarity. If the incentive which is presumably meant to be created by subsection (6)(a) is to be of use, it would he more useful if it were prolonged and remained in existence right up until the end of those proceedings. I beg to move.
The Earl of Caithness: To begin with I did not think that I liked this amendment very much. However, I thought that the noble Lord had a good point in his argument. It is something which I should like to look at. I do not see why a landlord should necessarily suffer a claim for damages if there has been a reconciliation during the period of the court hearing and the tenant is back in the accommodation. Perhaps I may be allowed to look at it between now and another stage and meanwhile talk to the noble Lord.
Lord Meston: I am very grateful for the noble Earl's quick response and for his open mind. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Meston Lord Meston moved Amendment No. 57D:
Page 19, line 38, after ("had") insert ("permanently").
The noble Lord said: Clause 27(7)(a) provides a defence to a landlord, as regards the liability provided by this part of the Bill, if he is able to prove,
"that he believed, and had reasonable cause to believe that the residential occupier had ceased to reside in the premises in question".
This amendment seeks to tighten up the wording so that the landlord is not allowed to get away with such a defence without being required to consider the possibility that a tenant's absence might only be

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temporary, albeit somewhat prolonged. It may be the case that tenants go into hospital, are working abroad, taking a prolonged holiday or are away for some other reason. That situation shouild not be allowed to provide a loophole if this part of the Bill is to be of value as the Government hope and the Committee should bear in mind the reservations I have already expressed in this regard. In much legislation the words "reside" or "residence" are usually qualified: examples are "habitual residence", "continual residence" or "permanent residence". It would he of use to have such qualification in this Bill. I beg to move.
The Earl of Caithness: The phrase,
"ceased to reside in the premises"
is identical to that used in Section 1 of the Protection from Eviction Act 1977 which created a criminal offence of harassment and unlawful eviction. It seems right that both the 1977 Act provision and the new one relating to civil liability should be framed in a similar way in this respect. In both cases the task of deciding whether or not the occupier generally had or had not ceased to reside in the premises is placed firmly in the lap of the courts. That is a task which they have already shown themselves well able to cope with.
The insertion of the word "permanently" would not, I submit, add anything useful to the provision. We should leave the matter to the courts and make sure that the wording of the Bill is the same as that of the Protection from Eviction Act.
Lord Meston: In view of that response I venture to think that perhaps the Protection from Eviction Act may need to be improved. I was endeavouring to close what I perceived as a loophole bearing in mind that if it is reproduced in a criminal statute, a criminal statute will be construed in favour of the defendant.
Therefore, if I am right on this point and there is a doubt about the matter, however wrongly the landlord may act he will have a chance of getting away with it. I hope that the Government will have one further look at this provision. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 agreed to.
Clause 28 agreed to.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 58:
After Clause 28 insert the following new clause:
("Aggravated damages for racial or sexual harassment.
.Where, pursuant to section 28 of this Act, damages are being awarded, aggravated damages shall be awarded if any part of the harassment for which the damages are being awarded can be shown to have been racial or sexual harassment.").
The noble Lord said: In moving Amendment No. 58 I wish to speak also to Amendment No. 59. These amendments stand in the name of my noble friend Lord McIntosh of Haringey. The Committee will understand that they are related very much to the general theme of the debates that have taken place over the past hour and 10 minutes. The amendments invite the Committee to consider the matter of
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harassment which causes terror to the individuals it affects. The amendments show that harassment has certain connotations in specific situations.
Amendments Nos. 58 to 59 seek to call the attention of the Minister and his noble friends to two specific areas. I hope to convince the Committee that in those two areas harassment is an even more obnoxious problem than it is in other areas. Amendment No. 58 is concerned with aggravated damages as a consequence of racial or sexual harassment. Amendment No. 59 deals with the consequences when a person is found guilty of racial or sexual harassment. I believe that the Committee is united in its detestation of cases where it is clear beyond any doubt that individuals in wretched housing are, in addition, subjected to racial or sexual harassment. Reference has been made to some people who subject tenants to racial or sexual harassment. I am not saying that racial or sexual harassment is a universal practice of landlords, but incidents of such harassment are not isolated events either.
Sadly the reading that I have done in preparation for this debate shows that the problem is very bad. The Home Affairs Committee of another place concluded in its report on racial attacks that such attacks had,
"received less attention than other forms of violence, such as football hooliganism, although the long-term damage they do to our society is, we believe, much greater. Given the immense importance to Britain of improved race relations and the suffering caused by racial violence, we would wish to see much more emphasis from the highest political levels on the unacceptability of racial violence and the need for effective action against it".
I equate the words "highest political levels" with the Government.
We want the Government to write on the face of the Bill that in the special (although not unique) circumstances in which it may be held by a court that harassment which has led to wrongful eviction for which a landlord has been convicted causes the court to hold, on the evidence, that there has been a special type of harassment which is racial or sexual, and particularly of women who head one-parent families and where children are involved, special and aggravated damages may be awarded.
I have a pamphlet entitled Homeless in Earls Court. It states:
"Racial harassment. Reports from Black and Asian people of harassment are common. They are vastly over-represented amongst hotel residents. 50% of Lambeth and 90% of Tower Hamlets hotel residents are from minority ethnic groups".
Perhaps I may quote from the report of the London Housing Inquiry. As has been said more than once, London is not unique. However, the bad aspects of the housing situation are particularly acute in London. The circumstances are not unique and they may be seen in any large urban area which suffers from the problems which we are discussing.
The evidence upon which the report of the London Housing Inquiry is based has come from a wide range of organisations. They include Age Concern, CHAR, the Central Council for Jewish Social Service, the Children's Society, the Docklands Forum, the London CAB Service, the UK Institute of Ethnic Minority UK/India Welfare Society, the London Islamic Turkish Associations, London Women's Aid, Paddington Churches Housing Association, and

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many more. The evidence did not come from one political or geographical source. It has come from a wide range of organisations which I believe the Committee respects for what they are attempting to do in assisting people in wretched circumstances.
As regards the situation of women in poor housing in London, the report states:
"35% of households accepted as homeless are single parent households (a disproportionate number are from Black and Ethnic Minorities) and 9 out of 10 single parents are women…Black and Ethnic Minority women and disabled women are further disadvantaged as they face higher rates of unemployment and are more likely to be lower paid. These facts show the lack of economic power held by women. This is fatal in an economy where owner occupation is growing and income determines access into housing".
We know that the greatest violence to women occurs within the household and involves other members of the family, primarily husbands. Women may be subject to harassment in a variety of ways as regards domestic violence. The report states:
"One London borough estimates that women fleeing domestic violence accounts for 80% of those in temporary accommodation".
As regards the aspect of race, in almost every area throughout London black people and those from ethnic minorities tend to live in worse housing conditions than do white households. Black people and women are very vulnerable as regards housing problems. When they are at the mercy of the housing market, they may have very great difficulty. The report states:
"The results of the London Housing Survey 1986/7 show that only 13% of Black households in council property in London live in houses rather than flats, as against 33% of white households".
The Report 'Black and White Britain' (1984) found that 11% of West Indian households lived in blocks of flats with 4 or more floors as against only 2% of white households".
I know that those Members of the Committee who are still here and taking an interest are as familiar as I am with the generally wretched circumstances in which many hundreds of thousands of people find themselves. We are saying, not least because of the evidence which my noble friend Lord McIntosh has produced about the activities for example of Mr. van Hoogstraten and many others, that there are practices which ought to be stamped upon as hard as possible and stamped out. These amendments invite the Government to use their authority to say that practices such as racial and sexual harassment should be especially singled out in the statute. I beg to move.
Lord Renton: I must apologise to the noble Lord for not having been here at the beginning of his speech introducing these amendments. However, I have read the amendments and I heard the last part of his speech. Therefore I hope that I may be forgiven for what I am about to say.
In our law the principle of aggravated damages, especially as a form of statutory injunction, has not been well received and is indeed very rare. So far as concerns sentencing, we have not accepted the principle at all. However, I have some experience of continental criminal codes, especially the Italian Penal Code. It is a terrible headache dealing with all the aggravations and extenuations which arise under it. They fetter the discretion of the courts and give rise to the most complicated situations. One could almost
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say that a man might be sentenced to an extra five years' imprisonment through the misplacing of a comma. Therefore I hope that such a precedent will not be created by our accepting Amendment No. 59 tonight.
I appreciate the motive of the noble Lord, Lord Graham of Edmonton. We all dislike racial or sexual harassment; we are all against them. But I think that we must leave it to the courts to deal with these matters in the cases that come before them in ways that seem appropriate using their discretion rather than try to impose specific instructions upon them in the ways that these two amendments do.
The Earl of Caithness: As my noble friend Lord Renton has just said, we on this side of the Committee share the abhorrence of Members opposite for racial or sexual discrimination and for criminal behaviour with a racial or sexual motive. However, I am afraid that we believe that this does not justify awarding aggravated damages automatically where racial or sexual harassment was involved in a case which has resulted in damages being awarded under Clause 27. I repeat what was said in another place, that deplorable though racial and sexual harassment are, they are not necessarily worse than other forms of behaviour such as ill-treatment of the elderly or the disabled.
Nor do I think that the new clause is actually necessary. The damages which are awarded under Clause 27 are already exemplary, but I say to the noble Lord, Lord Graham, that it is open to a plaintiff to claim additional damages where there has been an offence of the type for which aggravated damages may be awarded, such as trespass against the person, which might often be relevant in cases of racial or sexual harassment. Clause 27 does not remove the right of a plaintiff to claim under another head. The plaintiff may have grounds for proceeding under the Race Relations or Sex Discrimination Acts, and these claims will not be disallowed because of the award of damages under this clause.
With regard to the second new clause, it is up to the courts to decide what factors they shall take into account as aggravating or mitigating factors when they are sentencing. It is already open to them to consider racial or sexual motives as aggravating factors in sentencing under this section of the Protection From Evicition Act if they choose, and it is not for government to dictate that they should always consider these factors in preference to any others.
Of course we are in sympathy with Members opposite in deploring the evils which they wish to tackle through these amendments, but I put it to the Committee that these amendments are not the acceptable means of doing so.
Lord Graham of Edmonton: To say that I am disappointed in what the Minister has said is the understatement of the evening. Without wishing to give offence, perhaps I may say that I genuinely believe that the Minister and most of his colleagues on the other side of the Chamber do not grasp,

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because they have not experienced, the wretchedness, despair and terror which exist among thousands of people who find themselves in the kind of circumstances that these two amendments seek to redress.
First of all, I believe that housing per se is an element in life and relationships which is quite unique. The ability to enjoy the quietude of one's own home and the security of a house are unique features among the many facets of what one might call the good things of life. We are therefore talking about a unique factor.
When it comes to the question of racial harassment, the Committee will not be surprised when I take the view that there is much racial prejudice in Britain—as indeed there is in the world—and, to be fair to the Government, they seek to take account of it. The Minister may be right in saying that there are other forms of redress, but, rightly or wrongly, our amendments are an attempt to show to a great many people who feel aggrieved and badly done by because of their inability to obtain fair treatment in housing, that the Government recognise their problems in housing and the unfair treatment meted out because of the colour of people's skin. It may very well be a case of a black landlord who carries out racial harassment against a white tenant or equally a white landlord who is harassing a black tenant. When the courts find that there has been harassment with a racial overtone or purpose, then it should be capable of redress.
There is also the situation of very many women who find that they are harassed because they are women and are vulnerable. Together with other Members of the Committee last week or the week before I listened to the wretched tales told by members of the Bayswater Project. They came to us and we listened to them. I do not believe that it would have been possible for any Member of the Committee to have listened to those women and come away other than utterly depressed at the circumstances in which they find themselves, circumstances in which racial and sexual harassment form part of their daily life and that of their children. These amendments seek to address that situation.
I am disappointed at what the Minister has had to say. We shall look again at the remedies that he has pointed out. I must emphasise that our sympathy is not a synthetic one. We accept that the Government acknowledge that there is a problem which needs to be addressed. The Minister's solution is to point to other ways in which it can be dealt with. We shall examine it further when we come back at a later stage. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
Clause 29 [Further offence of harassment]:
[Amendments Nos. 60 to 63 not moved.]
Clause 29 agreed to.
9.30 p.m.
Clause 30 [Variation of scope of 1977 ss, 3 and 4]:
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 64:
Page 21, line 38, leave out subsection (1).
The noble Lord said: With this amendment I speak to Amendments Nos. 65, 66, 67, 68, 72, 74 and 75.
The amendment that I move seeks to continue the present application of the Protection from Eviction Act 1977 and the need for a court order where repossession is sought for the type of letting excluded from that protection by Clause 31 of this Bill.
Clauses 30 and 31 exclude certain tenants and licensees from the Protection from Eviction Act 1977. We do not feel that the proposals included in these clauses strengthen the rights of tenants against illegal eviction.
To put the Government's proposals, as laid out in these clauses, into perspective, it must be realised that they intend to decriminalise certain evictions. In reality this will remove from the protection of the law people who are likely to be the most vulnerable. This part of the Bill is about the vulnerability of certain groups of people who are living in wretched circumstances. As we understand it, the groups which will be removed from the protection of the law consist of people sharing living accommodation with their landlord, where the landlord was an owner/occupier before the tenancy or licence began, licences granted as a temporary expedient to a trespasser, holiday lets, hostels of statutory bodies, housing associations, or anybody else whom the Secretary of State decides upon. A closer look at these groups shows the serious flaw in the Government's claims that they are giving greater protection against unscrupulous landlords.
On hostels, I ask this serious question. Are the Government saying, for example, that people who are living in hostels—possibly having been discharged from psychiatric hospitals, having drink or drug dependency problems, or being very young or very old—should be allowed to be evicted on to the streets without any protection from the courts? The Minister needs to answer that question, yes, or no. Already it is common for hostel dwellers to be evicted unceremoniously at short notice. As the reason for their being in such accommodation is usually because they are vulnerable and need support, basic rights are rarely enforced.
The NFHA proposed that hostel dwellers should be treated in almost exactly the same way as other housing association tenants when possession was sought, but that the right of security should be qualified by the introduction of new grounds for possession to cover gross misconduct in shared accommodation and the situation where a resident no longer requires special accommodation. These additional grounds adequately cover any problems which may arise in tenancies where there is a communal aspect to the accommodation not usually present in housing association tenancies, while allowing hostel dwellers a reasonable level of security.
Holiday lets form the largest category of abuse and sham lettings. Genuine holiday lettings are already exempt from security of tenure. To remove the need for a court order for eviction will make sham lettings even more attractive to landlords wishing to abuse the system, as the court hearing is usually the only point at which the sham can be tested. For instance, nurses working at the Royal Free Hospital in Hampstead were let rooms in the street opposite the hospital on holiday let agreements. At the end of the six months' period the letting was extended for a further six months. After taking advice the nurses applied for fair rents to be registered on the premises. The landlord then applied to the courts for possession but the courts upheld the nurses' claim that the device was a sham and that they had a protected tenancy.
There are other aspects of the amendment that I have moved on which I have more details, but I am conscious of the pressure of time on the Committee and of other amendments to which we need to give attention. I hope that the Minister—who I am certain has given close attention to what we are trying to do—will say something helpful to me before I decide what to do with the amendments. I beg to move.
Baroness Gardner of Parkes: I have very strong views on this subject. They are quite different from those expressed by the noble Lord, Lord Graham of Edmonton. In the first place this lack of protection is to be in a place with a resident landlord. That was the first category that he covered. I believe that the intention in taking away the present condition is to encourage people to let a portion of a property which they are not willing to let at present because of the restrictions and the problems that they would face. If through this change in the law we bring about a great increase in the number of people willing to share their accommodation, I believe that is good.
At Second Reading I suggested that if this is to create a whole new quantity of housing, even if someone is required to leave by his resident landlord he will have somewhere else to go because some other resident landlord will be willing to have him. That is the first issue about resident landlords.
In the last year I have been to see a great many hostels dealing with short-term tenants. I have been very impressed with the work that they do, but what interested me greatly was a point made by people running the hostels. It is essential for them to have a process, a pipeline, whereby people stay in the hostel but do not remain there permanently.
I call to mind immediately a place which had 17 residents, each requiring special rehabilitation after psychiatric treatment, perhaps for problems involving alcoholism or drugs. There were different problems in each case. The work that the hostel was doing was fantastic, but the staff were concerned to have further places for people to move onto when they no longer needed the rehabilitation process. It was said that unless there was a wider variety of housing available they could rapidly find themselves with 17 permanent residents and no hope of continuing the good work they were doing because
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the hostel would stagnate with those same 17 people in possession of the property. The Committee will agree that 17 residents is not a very large number.
These are not instances in which I agree with the noble Lord, Lord Graham, at all. However, I have one point that I should like the Minster to answer. At present if a local authority is to help someone who has been asked to leave somewhere where there is a resident landlord, it will not do so until it sees a court order for possession. With that court order the local authority considers that the person is officially and legally homeless and the council then undertakes an obligation to look after them.
What will happen if a resident landlord just asks someone to go and that person has no documentation to prove that he left willingly and without regret? What obligation would the local authority then have to do anything? I see a problem there, but the other aspects of this amendment I do not agree with and I shall oppose it.
Earl Russell: The noble Lord, Lord Graham of Edmonton, knows that I go along with a very large part of the general framework of criticisms that he and his colleagues have developed, but there are occasions, of which I believe this is one, when I find it necessary to say that landlords are people too. I do not believe that there is a large amount of housing in London about to be brought onto the market. I do not think there are many more houses to be found in London.
One area in which there is a possibility of bringing more houses or at least rooms on to the market is the areas of holiday lets. I appreciate that that can be abused and often is. I am certain that I should not contemplate a holiday let of my premises were the amendment on the statute book. On this occasion I hope that the Minister will resist the amendment.
The Earl of Caithness: Support from that quarter of the Committee is always welcome. The noble Lord, Lord Ross of Newport, was active earlier in the Bill and the noble Earl, Lord Russell, is no less welcome in joining our considerations.
As my noble friend Lady Gardner of Parkes indicated, behind these amendments lies a fundamental disagreement with some of the changes we are making to the Protection from Eviction Act in this Bill. We believe that that Act needs to be strengthened, and we are extending its provisions to give greater protection to licensees. It will in future be necessary to get a court order to evict a licensee, but not every licensee. There are amendments here which delete the references in Clauses 30 and 31 to excluded licences, so it should be necessary in every case to get a court order to evict a licensee. But that would make the management of residential accommodation impossible. Even a short consideration shows that some licences are such that it would be quite unreasonable to expect the licensor to get a court order to evict. Clause 31 sets out the categories of tenancy or licensee which should be excluded from the new provision.
Amendment No 67 deletes another important provision. The Bill excludes some tenancies, and then

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excepts some from the exclusion. This amendment removes the exceptions from the exclusion. Amendment No. 65 is a consequential amendment.
Amendment No. 72 would have us require landlords and licensors issue notices in prescribed form giving four week's notice to excluded tenants and licensees. The whole point about such excluded agreements is that they are not to be subject to the same formal notice requirements as tenancies and licences which are within the scope of the amended Act. We contend that it would be a nonsense for there to be a formal notice requirement for a squatter or a holidaymaker, for example. I am sure that the noble Lord, Lord Graham of Edmonton, will appreciate the difficulties that the amendment would cause to the holiday industry. The noble Earl, Lord Russell, indicated an example where he would be reluctant to let his house or part of it as a result of the amendment. It would run contrary to our wish to increase the amount of property on the market available for letting.
Amendments Nos. 74 and 75 seek to delete parts of Clause 33, not only a reference to excluded tenancies and licences. Among the deletions are those subsections which provide that where a landlord or licensor increases the rent payable by an existing tenancy or licensee, then that tenancy or licence is treated as a new tenancy or licence for the purpose of the amended sections of the Protection from Eviction Act. We do not want to undermine the security of existing tenants or licensees. Let me emphasise that we do not want landlords to evict their present tenants so that they can put in new tenants subject to a different and less stringent security of tenure regime. By providing that new tenancies and licences are created when the rent is increased we are protecting the position of existing tenants, and of landlords who must of course be entitled to increase the rent.
We have created a logical system designed to give extended protection to licensees, and we believe that these amendments would undermine this at crucial points.
My noble friend Lady Gardner of Parkes asked me about a specific matter. Where a landlord has a right to possession the advice which my department has given to authorities is that they should not insist on a—perhaps I had better write to my noble friend.
9.45 p.m.
Lord Graham of Edmonton: I am prepared to wait. I am bound to say that I am disappointed not only with the Minister's reply but with the attitude of the noble Baroness, Lady Gardner of Parkes. We are talking of people who, if they had any other option than to be a tenant in the kind of establishment about which we are talking, with a resident landlord, or any other option than to be in a hostel for a special purpose, would not in general want that to be their place. We are not arguing that there should be any permanence of tenure. We are arguing that these people, one of the most vulnerable groups in society, who have had some protection should not have it removed.
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The Committee should be aware that members of the National Federation of Housing Associations, who are the landlords of many of the hostels in which the people stay whom we are trying to protect, certainly do not wish to see their position strengthened, if that is what the Bill says, and ipso facto the position of their tenants weakened by this. The association told me that it wrote to William Waldergrave, who at that time was the Housing Minister. June McKerrow, the Chair of the NFHA, said:
"Residents of housing association hostels and shared housing should enjoy a limited form of security… This can be achieved by amending the Bill so that licensees of housing association hostels are subject to the provisions of the 1977 Protection from Eviction Act".
I hear what the noble Baroness, Lady Gardner of Parkes, is saying, that in the philosophy of the Bill we are loosening up, widening and encouraging greater flexibility. The people who are closer to the problems than either the noble Baroness or myself—that is those people who are daily in contact with and are having to work the system— are telling us that the situation is not as she sees it but the way that I have attempted to portray it.
I am very sorry that the Minister has already allowed landlords to get easier access to courts for possession proceedings and that the required notice periods have been reduced. In this series of amendments we are not seeking full security for tenure. We are just seeking to ensure that the courts are still involved before eviction takes place.
I believe that the Minister's friend is saying to the Minister that perhaps he might want to intervene.
9.45 p.m.
The Earl of Caithness: Indeed, I should like the opportunity to intervene, just to continue the answer to my noble friend Lady Gardner of Parkes.
Lord Graham of Edmonton: We can hardly wait.
The Earl of Caithness: Well, here I am with the answer. The advice that we have been given to authorities is that they should not insist on a court order before rehousing a tenant who has to leave and is in priority need, and that will continue to be our advice. But if my noble friend would care to listen to what I have to say in more detail on Amendment No. 71 of the noble Lord, Lord McIntosh, which deals specifically with hostels, perhaps we may go into that point again.
Lord Graham of Edmonton: I repeat my disappointment. As is the convention, I simply say that when those outside the House have discussed with me what the Minister has said we may come back to this matter at a later stage. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 65 to 68 not moved.]
Clause 30 agreed to.
Clause 31 [Excluded tenancies and licences]:
Lord Ross of Newport Lord Ross of Newport moved Amendment No. 69:
Page 23, line 36, leave out ("only") and insert ("for a period not exceeding two months and the tenant or licensee has not been in occupation of the premises for more than two months.").
The noble Lord said: I am conscious of the fact that I have a fairly long brief and I do not wish to keep the House for too long, but I have great sympathy with the noble Earl in his predicament during the last amendment. I recall when I was first in the other place the then Secretary of State for Energy, the right honourable Tony Benn, being interrupted by my honourable friend the Member for Rochdale. He said that he hoped to carry the honourable Member with him, which brought the House down, since he weighed 29 stone.
I am hoping that in this case I shall be able to carry my honourable friend on these Benches with me, because I am hoping to define in this amendment what actually is a holiday let. I have had a quick word with him, and he tends to agree with me that perhaps two months is a reasonable period for a holiday let. It seeks to obviate the predictable use of sham holiday labels, referred to by the noble Lord, Lord Graham of Edmonton, on the previous amendment, for what will be quite extraordinary residential tenancies.
The blanket nature of the exclusion, as the Bill now stands, from even the basic protection of the requirement for eviction through the court of residential occupiers who have been obliged to enter into so-called holiday agreements to get a roof of any kind over their heads has horrified housing advisers. The amendment comes from tenancy relation officers active in this field in London—it is not an experience to my knowledge in my part of the world—who have seen numerous cases in which prospective occupiers have had to provide employers' references and have then been granted the right to occupy premises in such well-known "resorts" as Tottenham and Crouch End for holidays of a year or so at a time.
That was bad enough when the "holiday" description was to avoid or evade the security of tenure and right to register a fair rent consequent upon protected status under the Rent Act 1977. However, at least those occupiers could rely on Section 3 of the Protection from Eviction Act 1977 and could test their position in court if they took advice rather than just accepting a landlord's orders. In their view it will be far worse in future because the mere description of an occupation agreement as "for a holiday only" will be used by many unscrupulous landlords and agents to save the time, trouble and expense of repossession through the court even after guaranteed possession is available to them through the assured shorthold tenancy. Thus even the very limited rights of this new style of tenure will be denied to many people who have no choice but to look for a rented home in the private sector. I repeat my support for the assured shorthold tenancy. It is a move in the right direction. The amendment is an endeavour to ensure that it is not greatly abused by those who try to get round it with holiday tenancies.
Many people will end up being unceremoniously and even forcibly evicted after paying exorbitant
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rents for substandard homes if they try, for instance, to insist on their rights to standards of repair that the Government rightly intend to strengthen. The police will usually be powerless to intervene even if summoned while the eviction is taking place. It is idle to say, as the Minister for Housing and Planning has said in another place, that there seems to be no need to prescribe a maximum length for an excluded holiday because we can leave the meaning of the word to the discretion of the courts. I think, as was said earlier, that it is up to us to define the limits that we believe to be fair and reasonable—in our view, two months. There will not be any reference to the court, or certainly not until well after the eviction, and then only if the dispossessed occupiers can somehow manage to fund civil legal action and produce credible witnesses who will not be deterred by fear of being similarly treated themselves.
It is surely reasonable to restrict the length of any holiday agreement that might take an occupier out of the protection of the court to a time that is rather more than the total of holiday that most working people have in a year, let alone at any one time. We are talking here about a significant departure from the principle only recently established in the minds of most people that it is nearly always unlawful to deprive anybody of what might be called his or her home other than by proceedings in the court. If it is contended that any persons threatened by this holiday exclusion as it stands would not be occupying
the premises "as a residence"—in other words, it is not their home—then it is reasonable to rejoin that the rejection by the occupiers of the holiday label and any attempt on their part to assert a continuing right to reside must cast doubt at the very least on the accuracy of the label from the first. That doubt should be—indeed, must be—resolved in the court.
The second part of the amendment is necessary because the courts have often upheld "working holidays" of a year or more in length as a valid use of the holiday exception from Rent Act protection. If this line of authority is not statutorily ruled out for the future, it will be almost impossible for wrongly dispossessed tenants to get legal aid or even to find a solicitor who feels able and willing to take civil action against the landlord. Criminal proceedings by the local authority would hardly ever be feasible because of the difficulty of showing, on the criminal burden of proof beyond reasonable doubt, that the landlord or agent had had the necessary guilty intention to evict without recourse to the law someone entitled to be evicted only through the court.
I am told that the Minister for Housing and Planning said in another place, and the Under-Secretary of State has repeated it in correspondence with the Association of Tenancy Relation Officers, that there is no issue of principle that goes against an amendment such as this. There would appear to be every reason in principle and for the sake of social harmony and upholding the rule of law that it should be accepted.
Genuine holiday landlords will still be protected if this amendment is accepted. Sham holiday landlords

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who impose their terms willy-nilly on persons searching desperately for somewhere, almost anywhere, to live will be frustrated. Surely that is devoutly to be desired.
In moving this amendment I mention one other point. It has been drawn to my attention that Clause 30 brings all residential licences into the protection of the requirement for a court order for eviction by saying that Section 3 of the Protection from Eviction Act applies to,
"any premises occupied as a dwelling under a licence"
as it applies to,
"premises let as a dwelling under a tenancy".
That wording means, I am told, that so-called bare licencees—I have not heard that word until recently—who are persons who have never paid a penny for their use of the property and who are genuinely intended by the owner to enjoy it free of charge, are included in the requirement for a court order unless excluded under Clause 31.
I am referring to a person who is perhaps going abroad for a short period and who has a friend who has sold his house and wants temporary accommodation. Those people who abuse the trust put in them by the person who has let them the house in fact have the protection of the courts until they can he evicted. That seems to be wrong when we are at the same time talking about people in so-called holiday lets. It is obviously an omission in error which has recently been brought to the attention of officials of the Department of the Environment, who have said that it is intentional and that no government amendment is planned. I think that is a shame. I now bring it to the attention of the Minister because I believe it is wrong. People enter into such agreements on trust and those agreements should be honoured.
I go back to my original amendment which seeks to define what is a holiday let. I hope the Minister will agree that two months is a reasonable period. I beg to move.
Lord McIntosh of Haringey: In general I support the amendment but I must protest, as a resident on the borders of Crouch End and as one who represented Tottenham for 10 years on the Greater London Council, at the slur in the noble Lord's speech about those delightful neighbourhoods. He ironically suggested that they could not be resorts. Let me assure him that there are few more delightful places in which to live and work than Tottenham and Crouch End.
Lord Ross of Newport: I apologise to the noble Lord. I was brought up in North Finchley. I am going to Crouch End next week for a fortnight.
Lord Renton: Perhaps I should declare a contingent interest. Although the family property to which I shall refer is in Scotland, and Part I of the Bill does not refer to Scotland, I am very much afraid that if this amendment is accepted it will create a precedent for Scottish law which I believe would be unwelcome.
The amendment is misconceived. So many holiday lettings are not for two months. There are not many
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people who can afford two months' holiday. In our experience with the house and the cottage on our property in Scotland which from time to time we let, it is nearly always let for two weeks at a time. That is what is wanted. I do not think there has been a single example of the properties being let for two months. Some of the lettings for the cottage are for only one week.
If the amendment is accepted we would find a strange position which, frankly, would be unfair to the owners of the property. The amendment says that that holiday letting is,
"for a period not exceeding two months".
That may be a letting for only one week. It continues by stating that in effect the tenant or licensee can stay on for two months. Having agreed to a letting for one week, then to stay on for two months would be wrong if this amendment were accepted. The Bill as it stands is much better, and it is right. It states:
"A tenancy or licence is excluded if it confers on the tenant or licensee the right to occupy the premises for a holiday only".
That covers all likely circumstances. It would be a very artificial and unfair distinction to make if this amendment were accepted. Therefore I very much hope and expect that my noble friend will resist it.
10 p.m.
Lord Graham of Edmonton: Before the noble Lord sits down, does he not appreciate that this amendment is an attempt to achieve some clarity over the period which the Bill regards as a holiday? Is he not aware that there are sham holiday lets? They are called holiday lets as a device for the landlord to avoid the responsibilities which he would have if they were otherwise classified.
Lord Renton: That may be the motive behind the amendment, but I am speaking of the effect of the amendment, which is as I have said.
Earl Russell: I wish to reassure my noble friend Lord Ross that he has succeeded in carrying me with him. It is not as difficult a task as carrying with him his honourable friend the Member for Rochdale. This is such a good amendment that I have no doubt that he would have succeeded. It seems to distinguish with a discrimination which is characteristic of the approach on these Benches as regards landlord and tenant relations as between use and the abuse. That distinction needs making. I do not believe that the amendment has the effect suggested by the noble Lord, Lord Renton, because it is creating an excluded tenancy; that is a tenancy in which the landlord can recover possession without the difficulties characteristic of other tenancies. I do not believe it is the effect of this amendment to give guaranteed possession for two months for a tenancy which was supposed to last for two weeks. I believe that it does what it is intended to do, and I am happy to support it.
Lord Coleraine: I wonder whether the noble Earl, who is a noted academic, will agree with me that there are many cases when academics from other countries take sabbatical leave, come to London on holiday and rent a house for six months.
The Earl of Caithness: As the Committee is aware, sham holiday lets are essentially a device to evade the rent and security regime of the Rent Act. With the new shorthold tenancy we are offering landlords a method of using short lets at market rents which gives them a guaranteed right of possession. This has to be attractive to the landlord whose main aim in setting up sham holiday lets is to set market rents for his property. The landlord who sees the attraction of sham holiday lets as being the power to evict without a court order is running a serious risk. If he uses a sham holiday let rather than shorthold he runs the risk that if the tenancy is examined in court he will be found to have created a full assured tenancy.
I am sure that, like me, the noble Lord, Lord Ross of Newport, sees the danger of any definition which includes a time limit as being that the unscrupulous landlord will grant lets of just shorter than the time limit, in this case the two months suggested in his amendment. Landlords of houses in multiple occupation, for example, would simply offer tenants successive holiday lets of different rooms in their property, which would be disruptive for tenants. The amendment would also bite on the admittedly rare but known creature, the person who is lucky enough to take a holiday for more than two months. I appreciate that Members of the Committee are trying to tackle a known abuse with this amendment, but I believe that it is an abuse which will die out in a healthy, flourishing market in which shorthold becomes the norm for short lets.
The noble Lord, Lord Ross of Newport, referred to Clause 31 bringing all residential licences into its scope and particularly the bare licences. He cannot have it both ways. He wants every residential licensee to have protection except the bare licensee who does not pay for his accommodation. There will be few bare licensees who are not in fact licensees of resident landlords. Where they are licensees of resident landlords no court order is needed. They are not in principle different from other licensees, so the licensor should give them notice and get an order if there is a dispute about possession.
Lord Ross of Newport: The noble Earl seems to be well briefed about bare licensees. I was trying to be even-handed, so there was a case the other way round. However, I accept what he has just said. The answer to the noble Lord, Lord Coleraine, is that anybody wanting to take a property for six months or more enters into a shorthold tenancy under the Bill; and I totally support that. I bow to the knowledge of the noble Lord, Lord Renton. He and I used to sit in another place and I would not want to take issue with him. I remember that long ago the first real holiday I ever had was in Scotland. I took a cottage for a whole month right up in the North-West of Scotland. The lady who let the cottage said that if I took it for more than a fortnight I could have it a lot cheaper; so I did, and thoroughly enjoyed it. We were trying in the amendment to define what is a holiday let. I fail to see the noble Lord's argument against adding at the end of subsection (7) the words,
"the tenant or licensee has not been in occupation … for more than two months".
It certainly was not the intention to stop the holiday let to which the noble Lord referred. If it were to have
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that effect, which I still cannot see—the noble Lord has far more knowledge of legal matters than I do—it certainly was not intended.
I realise that this is a late hour and hardly the time to divide the Committee but we have at least debated an issue which the noble Earl himself has admitted causes concern in London and about which I admit, being in the Isle of Wight, I do not know very much. However, I am told that sham holiday lets are an issue and therefore if we have at least aired the subject it may have some effect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 70:
Page 24, line 7, at end insert ("or Housing for Wales").
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 71:
Page 24, line 8, leave out paragraph (h).
The noble Lord said: In speaking to an earlier amendment, the Minister promised the noble Baroness, Lady Gardner, that all would be revealed about hostels when he came to reply to this amendment. I hate to disillusion him but this is a limited amendment. It refers only to hostels under housing associations and it refers only to licences, rather than tenancies, in those hostels.
The effect of the amendment is to remove housing associations from the list of landlords to whom Clause 31 applies and therefore to give some degree of security of tenure to licensees under housing associations. No criticism of housing associations as landlords is implied by the amendment. There have been various reasons why housing associations with the highest of motives have not only set up hostels but as well as tenancies have had residents in hostels who have licences. However, because of the way the Bill is drafted at the moment, those on licences rather than on tenancies could be evicted without the need first to obtain a court order. I am not saying that most housing associations would have any intention of doing so as they are charitable housing associations.
The difference between licences and tenancies in housing association hostels is or ought to be of historical interest rather than of real interest. The only argument that I can think of as to why there should be any difference is when there is a risk of having disruptive tenants, or disruptive residents, in these housing association hostels.
It is certainly the case that there are some disruptive residents, and housing associations must not have any ability to deal with such tenants taken away from them. But surely that should happen by calling in the police, rather than by using housing tenancy legislation. If it is a problem, having called in the police, to get the courts to act quickly enough, then I suggest that it is up to the Government to propose an expedited court procedure and not to have legislation which continues and intensifies the difference between tenants and licensees in housing association hostels.
I do not think that this is a particularly controversial amendment. I do not know whether it

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covers the points which the noble Baroness, Lady Gardner of Parkes, wished to refer to, but I hope that the Committee will feel that it is a reasonable approach to cutting out a difference which no longer has any real significance. I beg to move.
The Earl of Caithness: Under the existing law it is not necessary to obtain a court order to evict a licensee whose contract has ended. That seems to the Government to be anomalous, and in Clause 30 we have extended the requirement in the Protection from Eviction Act to obtain a court order so that it covers most residential occupiers. Moreover, in, Clause 32 we have extended the notice to quit provisions of Section 5 of the Protection from Eviction Act. There must, however, be some exceptions and those are set out in Clause 31. They include licensees whose agreements have expired living in hostels provided by the bodies listed in subsection (8).
The amendment deletes from that list housing trusts which are charities and registered housing associations. I can see the argument for giving all residents of hostels, not just tenants, a safeguard against arbitrary eviction. But the requirement to give four weeks' notice and to obtain a court order in every case could bring, I contend, real operational problems. The pressure on the county court is such that it commonly takes six to eight weeks for a case to be heard and, regrettably, in some areas it can take rather longer. So an association wishing to remove a resident who was disruptive, because of alcoholism or behavioural disturbance, might have no way of doing so quickly even though that resident was making life intolerable for the other occupants of the hostel.
That seems to me to be a very severe practical drawback in what the noble Lord, Lord McIntosh of Haringey, is proposing. It can certainly be argued that a way of helping to deal with this problem is to have an expedited court hearing. There are precedents for that. But even in these cases it can still take a week or two to get to court, and allowing some cases to go to the front of the queue means that others have to wait longer.
There is also the point that much of the accommodation with which we are concerned here is intended for short stays, not permanent residence, and that it is inappropriate to have formal and possibly lengthy procedures of this kind to remove an occupant who no longer has any contractual right to remain there and who has no statutory security either.
We are therefore not convinced that this amendment is sensible from the point of view of the practical operation of hostels. We believe that housing associations are responsible bodies and can be trusted to treat their hostel residents reasonably. They can grant contractual security and minimum periods of notice if they wish. We have, however, been discussing these issues, and others related to the status of hostel residents, with the National Federation of Housing Associations. Those discussions will continue. I cannot give the Committee any undertakings, but I can say that we are prepared to look at the whole issue with an open mind.
Lord McIntosh of Haringey: I must take note of the Minister's last remarks and of his assurance that the National Federation of Housing Associations has been consulted on the matter. I shall certainly look to brief myself better than I feel I have been briefed at the moment about the consultations which have taken place. I welcome what the Minister said about the open mind with which he approaches the matter. If I think it is necessary to come back at a later stage with an amended proposal, then I am sure that I shall have an opportunity to persuade the Minister that there is a kernel of truth behind what we are saying, even if we have not covered all the possibilities. For example, I was particularly impressed by what he said about the danger in our proposals for short-stay hostels. I agree that it would not have been our intention to include short-stay hostels in our proposals. In those circumstances, it is best that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31, as amended, agreed to.
Clause 32 [Notice to quit etc.]:
[Amendment No. 72 not moved.]
Clause 32 agreed to.
10.15 p.m.
Lord Ross of Newport Lord Ross of Newport moved Amendment No. 73:
After Clause 32, insert the following new clause:
(".—(l) All local housing authorities to which this section applies shall appoint and retain a proper officer whose functions shall include those set out in subsection (3) below.
(2) This section applies to the following local housing authorities—

(i) district councils and London borough councils;

(ii) the Common Council of the City of London;

(iii) the Council of the Isles of Scilly.

(3) The proper officer for the purposes of subsection (1) above shall receive, acknowledge and investigate any complaint made to the local housing authority by a person aggrieved that an offence under the Protection from Eviction Act 1977 as amended has been committed within the area of that authority and shall prepare a recommendation in writing for that authority on whether or not that authority shall commence a prosecution or other action against any person arising from those investigations.
(4) For the avoidance of doubt, it is hereby confirmed that a person aggrieved under subsection (30) above shall have sufficient interest in the matter to bring appropriate proceedings to enforce the duties established under this section.").
The noble Lord said: The clause seeks to give teeth to the Government's proposals and their manifesto promise to strengthen the law against harassment and unlawful eviction. The Government have drafted Clauses 27, 28 and 29 to honour their manifesto promise, and all credit to them for that.
No law will be of much practical help unless residential occupiers who feel that they have been unlawfully treated can find a ready and reliable source of help in their local council. Despite the Government's wish to abolish local authorities, when people are in trouble they turn to their local authority. The police, under instructions, can find themselves preventing or dealing with breaches of the peace. They send a report in due course to that local authority. Far too many of those reports have been

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investigated too late to do any good, with the inevitable result that the police in some areas have become less astute at identifying the cases that should be reported.
I hasten to say that in the amendment I do not seek to add to the establishment of local authorities. I pick up the point that the Government look upon the local authority of the future as a type of agency which will perhaps push people in certain directions. Many people will not have too much to do. Even in the Isles of Scilly, one officer could be appointed as the harassment officer.
Legal protection is useless without effective enforcement machinery. The new clause seeks to ensure that every local housing authority has an officer, not necessarily specially appointed, who might be called the tenancy relations or harassment officer and who must and will receive and investigate any complaints alleging harassment or unlawful conviction. Seventeen years ago the Francis Committee recommended that local authorities should employ tenancy relations officers to ensure observance of what was then the fairly new law against harassment and unlawful eviction. However, until now local authorities have had only a power and not a duty to investigate and prosecute alleged offences. The application of the Protection from Eviction Act is haphazard, to say the least. In practice, few authorities have an officer appointed for the purpose of enforcing the Act. Many which have had such officers in the past no longer have them. For example, I am told that the London Borough of Camden had four tenancy relations officers two years ago; it now has none.
By accepting the new clause, the Government can show that they intend that no more such cases can or will occur, and that the law against harassment and unlawful eviction will be enforceable and regularly enforced. If the new clause is not accepted, and local authorities continue to have no duty in that respect, the Protection from Eviction Act is unfortunately likely to continue to be the dead letter it so often is today.
At the request of county council social services departments I put through the Housing (Homeless) Persons Act. I was assured that when that Bill was on the statute book, social services would co-operate completely with housing authorities in the implementation of that Act and that they would play a part in helping to decide cases which should be given priority treatment. I was horrified, I have to admit to the Committee, after 1977 when an Act was on the statute book to find that social services departments wanted nothing whatever to do with it. It was left totally to the housing authorities; I left them with the problem. They had to appoint their own social service officers to interview people who were claiming to be homeless. I think in this case totally the same applies as regards harassment. I take on board that the Government have honoured their pledge to write provisions into the Bill about harassment. They are concerned about it but they have not provided the manpower to carry out the provisions. I ask them to do so now. I beg to move.
Lord McIntosh of Haringey: I rise to support the amendment to which my name is added. I am bound to say that when I first saw the text I was concerned about the inclusion of the Common Council of the City of London and the Council of the Isles of Scilly. I thought that in the rarified atmosphere of the City of London, this sort of thing was hardly likely to happen. Certainly in the salubrious surroundings of the Isles of Scilly it would never happen. I have to say that I am wrong.
In May 1986 a case was brought to the attention of the Council of the Isles of Scilly where a landlord had removed the front door of a tenanted cottage with a chainsaw. He had smashed all the windows and pulled out all the electrical wiring. There had been other harassment. Although it would have been within its powers to do so, the council and its solicitors decided to take no action. The council was had up before the local authority ombudsman, who said that the complainants had sustained an injustice through the council's administration in what he called a very serious case. So even in the Isles of Scilly there are cases of harassment which require the intervention of local authorities to protect the tenants. If that is so even there, how much more is it so in other local authorities on the mainland of this country?
It may seem draconian to enforce the appointment of tenancy relations officers, but this is by no means a theoretical or abstract problem, as I think Members of the Committee will recognise from some of the cases which I cited last Thursday when talking about Mr. Hoogstraten's associates. One of his associates is now in prison for grievous bodily harm—throwing a lump of concrete at the Westminster tenancy relations officer. It is a problem which is happening every day, particularly in our cities and towns and even in the Isles of Scilly. There is an obligation placed on local authorities, I admit. In general one would like to rely on the discretion of local authorities, but the need is so great that I believe this is a case when such an obligation should be placed on local authorities.
Lord Renton: I hope that my noble friend will not accept this amendment because it is quite unnecessary. Housing authorities have powers to appoint whatever officers are needed to fulfil their statutory obligations. If we accept this amendment it is purely administrative and we shall create a precedent. The statute book will be cluttered up with one section after another in Acts of Parliament, placing responsibilities on local authorities and telling them to appoint officers to fulfil those duties. I hesitate to use the word in the courtesies of the Committee, but frankly this would be ridiculous.
The Earl of Caithness: We believe that it would be wrong to require every local housing authority to appoint such an officer, as this new clause proposes. I agree with my noble friend Lord Renton on that. Perhaps I may tell the Committee that we intend to write to all local authorities drawing their attention to their duties under the Protection from Eviction Act and the remedies available to them where serious harassment is taking place.We shall point out to them

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that even if they do not create a new post of tenancy relations officer, there are advantages in identifying an existing officer, probably a housing officer, to take on the functions of advising private tenants on their rights.
Different local authorities will cater for the advice needs of private tenants in different ways. Some with a large number of privately tenanted properties in their areas will think the best approach is to appoint a tenancy relations officer with special responsibilities for investigating allegations of harassment. Others will prefer to leave this to housing advice centres or law centres.
As the Committee knows, local authorities have complete freedom to appoint such officers as they choose to discharge their statutory functions. I do not think that they would welcome the Government prescribing how they should discharge their functions, and we do not propose to do so in this area.
Although I am sympathetic to the intentions behind the new clause, as I said, we do not propose to prescribe to local authorities the best way of fulfilling their statutory duties. I thought that I would have the support both of the noble Lord, Lord Ross of Newport, and of the noble Lord, Lord McIntosh of Haringey, on that point.
Lord Ross of Newport: The noble Lord, Lord Renton, has walked out of the Chamber. For someone on the opposite side of the Committee to say that it is wrong to impose this and that on local authorities is a bit rich, when the present Administration impose all kinds of restrictions on local authorities. However, I must say that the reply of the Minister was rather better than that of his noble friend.
I was not asking for particular extra appointments. If the Members on the opposite side of the Committee did not watch the television programme that was shown the other day, I ask them to have a look at it. I want the idea of bringing back rented accommodation to succeed. My family never lived in a house that it owned. My father always rented property. But I am sure that there will be problems with rented property. I think that the Minister accepts that. Serious problems already exist in our inner cities, particularly in London.
Therefore, it would strengthen the Government's hand if they were seen to be giving instructions to local authorities as regards harassment and if they were seen to be at least allowing local authorities to have a harassment officer to deal with such problems. I made the point about the implementation of the Housing (Homeless Persons) Act. The noble Baroness, Lady Faithfull, will probably shake her head at what I am about to say. But it is a disappointment to me that the co-operation that used to take place no longer happened after the implementation of that Act. Social services no longer co-operated with the housing authorities as they had in the past. The boroughs found that they had to employ a social worker to interview families who were in distress of one kind or another.
Baroness Faithfull: The situation in the country as a whole must have been uneven. That is the impression I gained from what the noble Lord said. Certainly in my authority and in the authorities with which I worked there was co-operation between the two departments.
Lord Ross of Newport: Perhaps I should have exempted Oxford and authorities in that part of the country. But even in my own authority the cooperation did not work, or at least not after a certain time. Therefore I think that the idea that someone should have responsibility to deal with harassment has merit. I accept the answer that has been given nevertheless, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [Interpretation of Chapter IV]:
[Amendments Nos. 74 and 75 not moved.]
Clause 33 agreed to.
Clause 34 [New protected tenancies and agricultural occupancies restricted to special cases]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 76:
Page 25. line 35, leave out from ("granted") to the end of line 37, and insert—
('either by the person who at that time was the landlord (or one of joint landlords) under the protected or statutory tenancy or by a person who at that time was connected with the landlord (or with one or more of the joint landlords) under the protected or statutory tenancy").
The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 77, 78, 79, 81 and 82. We turn now to Chapter V of Part I of the Bill, which is concerned with the phasing out of the Rent Acts and other transitional provisions.
I remind the Committee of the Government's intention in this respect as expressed in their White Paper and in the consultation paper which they issued on the private rented sector proposals. The White Paper stated:
"The Government does not propose to make any substantial changes in the regime for existing tenancies subject to the Rent Acts. It would not be right to disturb these existing tenancies".
The consultation paper says:
"Existing tenants will retain their right to security of tenure under the Rent Act".
Those are fine words, with which we agree. Our amendments to the chapter are intended to strengthen the Government's hand in the objective they have set themselves. The amendments are in no sense destructive or wrecking amendments. They are intended to help and relieve anxieties expressed about the effectiveness of this part of the Bill.
The first difficulty we see with the Bill as drafted—I say straight away that substantial improvements were made to this part of the Bill at the Committee stage in another place—is that there is still the problem that alternative accommodation, if offered by the same landlord at the same address, achieves the same Rent Act protection but it will be easy for a landlord to get round the protection by offering

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what would otherwise be alternative accommodation which is not under the control of the same landlord or not at the same address. It is not unknown for landlords to meet and know one another. They may seek to persuade tenants that something is genuinely an acceptable alternative, although it is in another building or owned by a different landlord or the same landlord operating through a different holding company.
There are many examples of that which are known to the various housing action centres in London. Property negotiators may persuade tenants that that is acceptable. However under the Bill as drafted, tenants will lose their rights and find themselves with assured rather than existing protected tenancies.
That is the case with relatively honourable landlords. I am not going back to the case of Mr. Hoogstraten. He had connections with at least 45 companies and used 15 aliases. Unless he and others like him are caught, the provisions of the Bill as drafted are not adequate to deal with the cases where such a landlord may be using different companies, addresses or aliases in order to achieve the loss of controlled status for his tenants. The protection in the Bill, although clearly rightly intended, does not achieve what is intended. We believe that our amendments make the situation clear and provide more effective protection for tenants.
Turning to Amendment No. 77, the Bill provides that a letting granted by a new landlord as suitable alternative accommodation under a possession order will only be a protected tenancy if the court so directs. That weakens the provisions of the 1977 Rent Act. It means that a court could hold—it is only too likely that in a number of cases it would hold—that an assured tenancy is suitable alternative accommodation for a protected tenancy. I hope the Government will assure us that in their view an assured tenancy cannot be regarded in any circumstances as a suitable alternative to a protected tenancy. If the Government are able to do that, I shall not move Amendment No. 80, which deals with that specific point. I hope that that will be seen as a different issue. The amendments are intended to help in a matter on which we share the Government's objectives in this part of the Bill. I hope that the amendments will be seen as helpful and that they will contribute to the effective implementation of the Bill's objectives. I beg to move.
The Earl of Caithness: Amendments Nos. 76, 78, 79, 81 and 82 together raise the issue of how far we can reasonably expect to go in safeguarding the position of those who at present have protection under the Rent Act. It is, as the Committee is aware, a basic principle of our approach that existing Rent Act tenants should remain unaffected by the new proposals. Thus, anyone who has a Rent Act tenancy when the Bill becomes law will retain his existing rights in terms of both rent and security for as long as the tenancy continues.
But we have also recognised that it is right to go further than this and provide that in certain circumstances a tenancy created even after commencement of the Bill can be a Rent Act tenancy.
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We have, in particular, accepted the need to ensure that existing tenants do not lose their protection by virtue of the landlord persuading them to accept a new tenancy, either of the same or different accommodation. Accordingly, under Clause 34(1)(b), any new tenancy granted to an existing Rent Act tenant by the same landlord—whether the accommodation is the same or different—can also be a Rent Act tenancy.
The noble Lord, Lord McIntosh of Haringey, has argued that we ought to extend this safeguard still further so as to take in the situation where a tenant with Rent Act protection accepts a new tenancy from someone other than the landlord under the previous tenancy—specifically, someone who either had a connection with the previous landlord or made an arrangement with him regarding the new tenancy. The noble Lord's main concern is to ensure that a landlord cannot enter into collusion with a third party in order to deprive a tenant of his existing protection.
I do not lightly dismiss the noble Lord's concern in this matter. However, it seems to me that in seeking to extend the circumstances in which a Rent Act tenancy can be created after commencement of the Bill, he is casting the net unreasonably wide. His proposals could involve penalising the landlord in perfectly innocent circumstances. For instance, a new landlord might in good, faith grant a new tenancy without any knowledge of the previous protected status of the tenant under a landlord with whom he happened technically to be associated, and thereby find that he was committed to a Rent Act letting. Then there are the practical problems of how to define a connection between landlords and how to establish beyond doubt whether there had genuinely been an arrangement of the kind referred to in Amendment No. 79.
The noble Lord's solution in the first case would be to import the definition in the Income and Corporation Taxes Act. But there must be doubt, even with a provision of this complexity, whether we would succeed in thwarting the operator who was absolutely set on circumventing the safeguards we had provided.
The Government's view is that we have gone as far as we sensibly can in this matter of new tenancies granted to existing protected tenants. We want to provide effective safeguards against blatant abuse. On the other hand, we cannot realistically hope to cover every possible angle. If we cast the net wider than we have, we risk producing legislation of fearsome complexity, full of traps for the unwary and perfectly responsible landlord, yet still not guaranteed to catch the person who is set on abusing the system. I am sure that the Committee will agree that there comes a point at which we have to ask the tenant to safeguard his own position. We must remember that no protected tenant can be compelled by a landlord to exchange his existing tenancy for a new one. As I made clear at the outset, so long as he retains his existing tenancy, he will continue to enjoy the full protection under the Rent Act.
I turn now to Amendment No. 77. Under Clause 34 a tenancy entered into after this Bill comes into

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force can be a protected tenancy under the Rent Act only in limited circumstances. These are set out in subsection (1). One of them is where a court has granted possession under Section 98 of the Rent Act of a dwelling let on a protected tenancy because the landlord is providing suitable alternative accommodation and the court directs that the new tenancy of the alternative accommodation shall be a protected tenancy. By removing the requirement for the court to have made a direction, Amendment No. 77 would mean that whenever a court granted possession under Section 98 the new tenancy would be protected if it met the usual qualifying conditions for a protected tenancy.
We do not think that that is acceptable because it conflicts with the provisions of the Rent Act itself. If a court is to grant possession under Section 98, it has to be satisfied either that the new tenancy will he a protected tenancy or that the security of tenure afforded by the new tenancy in the alternative accommodation offered by the landlord is reasonably equivalent to that provided by a protected tenancy. So the new tenancy does not have to be a protected tenancy. Some other form of tenancy—-for instance, an assured tenancy with contractual terms similar to the statutory safeguards provided by a protected tenancy—may be sufficient. We have sought to preserve this position in Clause 34 by giving the court the power in future to determine whether the tenancy of the new accommodation is to be protected.
So in that respect the Bill is consistent with the Rent Act. This amendment conflicts with that Act and therefore I cannot recommend it to the Committee.
Lord McIntosh of Haringey: I must express my gratitude to the Minister for explaining my amendments far more lucidly than I did. Certainly in his expose of the situation he leads me to think that the loopholes that I suspect exist in the government drafting are in fact quite serious ones. Even if I have the drafting wrong now—and I think it is highly likely—this is a matter to which I must return at a later stage.
I do not think that the extent to which the present drafting of the Bill leaves the way open for actions by landlords which would not be harassment in the normal sense is fully appreciated. I do not suggest that anything illegal would be done; but the value to a landlord of converting from a protected tenancy under the Rent Act to an assured tenancy is so great that there are many things that landlords could do which could not be classed as harassment, even under the amendments that I sought to move earlier this evening, but which might well persuade a weak-willed or insecure tenant— or perhaps an elderly tenant—to make a move that would be very much to his or her disadvantage.
For example, it would be perfectly legally possible for a landlord to send successive agents or solicitors to discuss alternative offers. That could be done with such frequency that the tenant was never sure what would come next, what opportunities were being offered or what threats were implied in the offer of other opportunities.
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I am not suggesting that the law on harassment can be made so watertight that that kind of activity could be covered in that respect, but if the advantage to the landlord of a change in tenancy is so great and if there is any real weakness in the drafting of the clause, this must be a possibility which should be taken seriously.
As regards Amendment No. 77, the Minister quite rightly said that when the landlord has obtained a possession order on the grounds that the new letting is suitable alternative accommodation the matter can be dealt with by the courts. But is it really desirable to force this matter into the courts? Is it right to force litigation when it is possible that the landlord and tenant could be in perfectly good agreement about the matter so long as the protected tenancy is to continue in the new circumstances?
I think that I shall have to study quite carefully the various remarks that the Minister has made in his response. He appeared to me to recognise some of the difficulties that we were attempting to address in this series of amendments. It may well be that we shall want to come back to this point at a later stage, perhaps after further discussions with him. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 77 to 79 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 80:
Page 26, line 30, at end insert—
("() In Part IV of Schedule 15 of the Rent Act 1977 there shall be added after paragraph 4(2):—
'(3) For the purposes of sub-paragraph (1)(b) a tenancy which is an assured tenancy within the meaning of Part I of the Housing Act 1988 shall not be treated as affording the required security by reason only of the fact that the tenancy is an assured tenancy within the meaning of the Housing Act 1988.' ").
The noble Lord said: I think it is necessary to move this amendment because it deals with a point that is sufficiently different to be teased out if there is any possibility of doing so. I gave the Minister the opportunity to do that, if he thought fit, in his reply to the previous group of amendments.
As the Bill is drafted, there is the possibility that an assured tenancy could be classified as being reasonably equivalent to a protected tenancy. They could be the same in every other way. However, I wish to suggest to the Committee that if the form of tenancy is different—if there is a difference between the protected status and the assured status—then they cannot be reasonably equivalent. The courts ought not to be able to find them reasonably equivalent because the difference between them is so great. It is a fundamental principle of the Bill that it is creating in the new assured tenancy a different and very much lower degree of security. That is the basis on which the Government hope to revive the private rented sector. Without entering into that broader issue, it is clear that the Government see that there is a very great difference.
If we have the drafting of the amendment correct—and I offer no assurance on that—we seek to ensure that no change of accommodation can be regarded as being reasonably equivalent if the form of the tenancy moves from being protected to being

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assured. If the Government can give us assurance that that would not be called reasonably equivalent there is no difficulty in withdrawing this amendment. I beg to move.
The Earl of Caithness: There is no doubt that the noble Lord has hit on a good point here. We accept the principle behind the amendment. If he will withdraw it at this stage, we can deal with the point at a later stage.
Lord McIntosh of Haringey: I am grateful to the noble Earl. I could not ask for more than that. I am certainly willing to withdraw it, and to make myself available for discussion if he would find that helpful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 81 and 82 not moved.]
Clause 34 agreed to.
10.45 p.m.
Clause 35 [Removal of special regimes for tenancies of housing associations etc.]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 83:
Page 27, line 39, at end insert—
("(4) If, on or after the commencement of this Act, the interest of the landlord under a protected or statutory tenancy becomes held by a housing association, a housing trust, the Housing Corporation or Housing for Wales, nothing in the preceding provisions of this section shall prevent the tenancy from being a housing association tenancy or a secure tenancy and, accordingly, in such a case section 80 of the Housing Act 1985 (and any enactment which refers to that section) shall have effect without regard to the repeal of provisions of that section effected by this Act.
(5) In subsection (4) above "housing association" and "housing trust" have the same meaning as in the Housing Act 1985.").
The noble Earl said: I speak also to Amendment No. 177. We have been at pains in drafting Part I of the Bill to ensure that tenants with Rent Act tenancies or with housing association tenancies which are both secure under the Housing Act 1985 and subject to Part VI of the Rent Act do not lose their rights. These amendments fill a lacuna which we have noticed in their protection. I beg to move.
On Question, amendment agreed to.
Clause 35, as amended, agreed to.
The Deputy Chairman of Committees (Lord Renton): Unless any noble Lord objects, I propose to put Clauses 36, 37 and 38 together.
Clauses 36 to 38 agreed to.
Clause 39 [Statutory tenants: succession]:
Lord Dean of Beswick Lord Dean of Beswick moved Amendment No. 84:
Page 30, line 10. leave out subsection (1).
The noble Lord said: In moving Amendment No. 84 perhaps I may speak also to Amendments Nos. 85 to 91 inclusive.
These amendments deal with the rights of succession for people whom we know as carers. It would be fair to say that in the main they are women
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who have given up their future careers in order to care for elderly relatives. Sometimes this is not of long standing because people's health can deteriorate very quickly, but someone has to take the responsibility for caring for them.
But under Clause 37 and Schedule 4 in Part I, on the death of the original tenant (or of the first successor) other family members can succeed only to an assured tenancy at a market rent. If a family member has been living with his relative for less than two years he or she will not be allowed to succeed to any tenancy and may be forced to find alternative accommodation. Currently, under the Rent Act 1977, family members who have been living with relatives for more than six months can succeed to the same regulated tenancy enjoyed by the original tenant.
A Report stage amendment reducing the residential qualification from the Bill's original proposal from five years to two years was most welcome, but succession will still be to an assured tenancy only. Many carers on low or even modest incomes are unlikely to be able to afford a market rent and may have to leave the accommodation, yet their chances of finding alternative housing are not high. Only assured tenancies will be available in the private and housing association sectors and most local authorities are probably unable to help because of long waiting lists. Carers who have been living with relatives for less than two years may be made homeless when their relative dies. Many may have made the decision to give up their own home to care for a relative whose health has deteriorated. Organisations, especially Age Concern, know of no evidence of people abusing the current succession laws to gain accommodation unfairly.
The proposals on succession contradict the Government's care in the community policy, which relies heavily of course on family carers. Speaking in October last year, at a Conservative Party conference fringe meeting organised by the National Council for Carers and their Elderly Dependants, Mr. Anthony Newton, the Minister, emphasised the Government's commitment to supporting informal carers, recognising that they are the bedrock on which community care provision is based. The lack of available alternatives to family carers further underlines the Government's dependence on these informal carers.
In the Commons Committee stage on 2nd July 1988, Mr. Waldegrave stated:
"We believe that succession rights have been as important as rent control in driving rented property off the market. It would be easy to seem caring by reinstating the right, but it would lead to further drying up of rented property".—[0fficial Report, Commons, 2/7/88; col. 614.]
Age Concern believes that the number of carers who will be affected by the new succession laws in forthcoming years will be relatively small and amending the Bill further should not greatly reduce the future supply of assured tenancies, but the consequences for those people may be very serious. We therefore urge the Government to reduce the residence qualification to six months and to allow qualifying tenants to succeed to the same regulated tenancy as that originally accorded to their relative.
It is late in the evening and there is a lot more that one could say on this issue, but I believe I have said enough in saying that people who do make a sacrifice on the basis of going into accommodation with an elderly relative in order to care for him or her do not take this decision lightheartedly, nor is it taken on a commercial basis. It is mainly and overwhelmingly taken on their desire to care for a member of the family who is in some distress. Obviously in doing so they save the community as a whole a tremendous amount of money and prevent a lot of people being taken into care or hospitalisation with all that that involves. I believe on that basis that the amendments, mainly sponsored by such organisations as Age Concern, are worthy of serious consideration. I beg to move.
Baroness Seear: I want strongly and briefly to support the amendment. I am president of the National Council for Carers and their Elderly Dependants and I am very well aware of the problems which arise over succession in these cases, as the noble Lord, Lord Dean, has said. People who take on caring and move in with their parents or elderly relations in order to do so make a very great personal sacrifice. It is a severe hardship if they cannot then succeed to the house.
Baroness Faithfull: I ask my noble friend to look sympatheticaly on the amendment.
The Earl of Caithness: The theme behind these amendments is that succession to a Rent Act tenancy is a right and that any qualifying member should be able to accede to one on Rent Act terms after a short qualifying period as set out in the Rent Act. It is indeed entirely reasonable that the surviving partner of a couple should take on the tenancy on the same terms enjoyed by his or her spouse. Many Rent Act tenants are elderly couples who have passed a large part of their married lives assuming that when one of them dies the other will be able to take over the tenancy.
It is also reasonable that a family member who has a real stake in the property, established by long residence, should be able to take over the tenancy. But the landlord has rights too, and for many of these tenancies the landlord has been receiving a fair rent which is manifestly unfair to him. Since we are not doing away with succession altogether, we offer him the prospect of a market rent if he chooses to ask for one, except where a spouse inherits. I contend that that is not unreasonable—though there are many landlords who regard it as unreasonable because it goes a lot less far than they would like us to go.
Although we have made substantial concessions on the residence qualification, I accept that there may be individual hard cases—people who do not quite fulfil the two-year residence requirement. This means they do not have an automatic right of succession to the tenancy, but it does not mean that the landlord will not necessarily grant them another tenancy. In some cases a landlord may well be prepared to grant a new-style tenancy to a member of a family he knows.
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These changes to the succession rules are not uncaring. The noble Lord, Lord Dean, rightly said that in the other place we amended the succession rules from a five-year period to a two-year period of succession. They say to landlords that they cannot have their property back where there are qualifying family members who have a good claim, but they also enable them to charge a market rent in such cases except where the family member is a spouse.
It is right that I should comment on carers because the point was raised by the noble Lord, Lord Dean. the noble Baroness, Lady Seear, and my noble friend Lady Faithfull. I well understand the arguments put forward by those who say that changes we are making to the rights of succession under the Rent Act, and the absence of right of succession to assured tenancies for a member of the tenant's family, are hard on carers—the son or daughter who gives up a home to move in with an elderly parent. As regards the Rent Act, carers will still have the right of succession where they have lived with a tenant for two years at the time of his death. There are transitional provisions to protect people who at the commencement of the Bill had already lived with the tenant for the old qualifying period of six months under the Rent Act. They will succeed to an assured tenancy at a market rent, not a regulated tenancy. We have made this change because we believe it to be inequitable that under the present rules a landlord can lose possession for up to three generations while receiving only an artificially low rent.
As regards new assured tenancies, although we have provided a statutory right of succession for a spouse or common-law partner, we did not think it right to give others such a right. To those Members of the Committee who criticise us for that I say that they must face the fact that if the terms are not attractive to private landlords they will sell their property rather than let it. We cannot force them to let. If we want the private landlord again to provide much-needed rented homes we must create the right conditions. Many landlords find the statutory rights to succession intolerable because they limit their flexibility to dispose of their property as they think best.
It is not that we are against carers; quite the contrary. It is rather that we must also be fair to landlords. Certainly as regards future lettings, landlords will simply stop letting if we are not. That would be quite against the intentions of everyone in this Committee.
Lord Dean of Beswick: I am grateful for the sympathy which the Minister expressed for the position of carers in his opening remarks. However, it saddens me that the Government are not now to be convinced that there is a case to go forward. I do not wish to delay the Committee any longer than is necessary, but I tried to point out the fact that, because of the responsibility and onus they place upon themselves, the carers are saving the community—which means the taxpayer and the Government—a considerable sum of money by the job that they are undertaking which is very often unpaid. They are skimping and even denying themselves any form of social life in order to care for

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people unable to care for themselves. I hazard a guess. which I think would be more than a guess, that organisations such as those to which the noble Baroness and the noble Lord, Lord Seebohm, belong. Age Concern and local social services departments, could list not isolated cases, but hundreds of cases, of people who are looked after by carers. If they did not accept that responsibility there would be a very difficult problem.
I find it rather disturbing, when the Government are already being criticised for releasing people into the community, that somebody is going to have to accept responsibility for those people in the community. It may well be the eldest son or daughter of a family who has to come back into the community; so a younger son or daughter moves back to help to care for them. If the handicapped or disabled person succeeds to the tenancy and then some tragedy happens, the carer is left without any security of tenure whatever.
I should like to think that the Minister may—I say -"may"—ask the Secretary of State to review the situation. because I am not convinced that the majority in your Lordships' House would take the same view as that of the Minister and the Government so far. The Minister has shown sympathy and on that basis I hope that he will read what I have said and try to make the case. I shall certainly read what he has said. I should like to take away this group of amendments and come back at a later stage. I am sure that there is overwhelming individual case evidence to support our arguments. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11 p.m.
[Amendments Nos. 85 to 89 not moved.]
Clause 39 agreed to.
Schedule 4 [Statutory tenants: succession]:
[Amendments Nos. 90 and 91 not moved.]
Schedule 4 agreed to.
The Deputy Chairman of Committees (Lord Renton): Unless any noble Lord objects I intend to take Clauses 40 to 44 together.
Clauses 40 to 44 agreed to.
Baroness Faithfull Baroness Faithfull moved Amendment No. 92:
After Clause 44, insert the following new clause:
("Extension of the provisions of Part VI and Part XI of the Housing Act 1985 Relating to Repair Notices and to Houses in Multiple Occupation.
. The Secretary of State shall make regulations on or before the coming into operation of this part of this Act providing for—

(a) failure to comply with sections 189 or 190 of the Housing Act 1985 (repair notices) to be a criminal offence;

(b) improved provisions for local authorities to serve repair notices in respect of communal parts in blocks of flats;

(c) power for local authorities to serve repair notices under section 190(1)(b) of the Housing Act 1985 without prior representations by tenants;

(d) expedited powers for local authorities to carry out work in default of compliance with a repair notice;

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(e) wider powers for local authorities to recover expenses incurred in carrying out work in default of compliance with a repair notice;

(f) applying minimum management standards to all houses in multiple occupation as defined by section 345 of the Housing Act 1985.").

The noble Baroness said: In moving this amendment may I thank my noble friend the Minister for writing to me very fully on 20th July 1988. I apologise to him that I have been unable to discuss this letter and my amendments before today's debate.
In his letter my noble friend accepted Amendment No. 92 with the exception of (b) and (f). I am particularly interested in (f) which concerns,
"applying minimum management standards to all houses in multiple occupation as defined by section 345 of the Housing Act 1985".
In particular, I am concerned and deeply worried about the bed and breakfast arrangements in this country.
In his letter my noble friend the Minister pointed out that a consultation paper was issued on 18th July to local authorities and to others. I congratulate my noble friend for what is an extremely good consultation paper. It makes the very point that I wish to make in the amendment. It asks everybody to make their views known by 1st September.
The bed and breakfast situation in the country is very serious. I submit that every effort should be made to deal with it as soon as is possible and practicable. If it proves possible for everybody to submit comments by 1st September, will my noble friend consider bringing in an amendment in the final stages of the Bill to deal with the management of houses in multiple occupation?
The question of premium was discussed under Amendment No. 51. In no circumstances can those living in bed and breakfast accommodation ever receive a premium. As a result, families in bed and breakfast accommodation have to remain there for a certain amount of time, and their social, education and health situation becomes very serious.
I hope that my noble friend will consider the possibility of bringing in an amendment at a later stage. I shall not of course press the amendment at this time of night, but perhaps the noble Lord, Lord Seebohm, could talk to my noble friend with a view to incorporating an amendment into the Bill at a later stage.
Lord Seebohm: I strongly support the amendment. In view of what the noble Baroness, Lady Faithfull, has said and the fact that the consultative document has now been issued, it may be better to hear what the Minister says before considering whether it is worth pressing the matter tonight.
Lord Dean of Beswick: I should like to refer briefly to the homeless people in relation to what the noble Baroness said in moving the amendment. The stage is being reached where accommodation for them is costing local authorities so much, certainly in the centre of London, that it may well pay the Government to take on board the initial payments referred to as key money. It may well be in the interests both of the Chancellor of the Exchequer and

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of the community as a whole to consider that before the results of the consultative document are forthcoming.
The Earl of Caithness: I am grateful to my noble friend Lady Faithfull for the manner in which she introduced the amendment. She is quite right to say that I wrote to her on 20th July and met many of the points covered in the amendment. I draw attention to Amendments Nos. 143 and 153 in my name, in which I cover most of the points raised in Amendment No. 92. I therefore hope that my noble friend may feel able to withdraw the amendment.
My noble friend raised one important point which we have not yet covered relating to houses in multiple occupation. The reason we have not yet tabled an amendment is that, as the Committee will be aware, we have just issued a consultation document and invited responses. Clearly it will take some time to receive those responses, although we hope they will he in by 1st September. It will take further time to consider them, analyse them and draft the necessarily fairly complicated provisions.
Therefore, it is most unlikely that we shall be able to do that in time for the Bill, but I am sure that my noble friend is fully aware of the Government's commitment to do something in future legislation, which is foreshadowed by the fact that we have put out a consultation paper. However, I shall be happy to see my noble friend, or any other noble Lord who wishes to speak to me on this matter, between now and later stages of the Bill.
Lord Graham of Edmonton: The Minister is certainly optimistic about making progress. Those of us who have taken a special interest in this matter cannot help but be amazed at the fortitude of the people who are faced with living in the conditions which this amendment seeks to put right. It is the absence of rights that concern us. Those tenants are bereft of any belief in their ability to do anything about their circumstances. Of course, at the end of the day all they want is a decent place in which to live and bring up their families.
The Minister said that there will be consultation. Can he say whether it will extend to groups such as the Bayswater project, which has produced an excellent document? Will the consultation include the homeless in Earls Court, who form another group? Will it be with the primary organisations such as the councils and the national agencies? Will it seek to get right down to the roots; that is, those groups seeking to help the people affected?
The Earl of Caithness: Copies of the consultation document have been sent to every local authority in England and to organisations and individuals interested in multiple occupation problems. Copies have also been placed in the Library and my right honourable friend the Secretary of State for Wales will be consulting separately the Welsh local authorities and those interested in Wales.
If the noble Lord knows of an association which would like a copy of the consultation paper perhaps
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he will let me know and we shall make sure that it gets one, because the wider the consultation, the better. However, the wider the consultation the longer it will take to analyse the problems and the less chance there will be of provisions being included in the Bill.
Lord Seebohm: Before the noble Baroness replies, I should like to add that I believe the whole situation relating to bed and breakfast accommodation, and the condition of the houses in London in particular, is so serious that I hope it will not be said that an amendment will not be put forward at a later stage. We must do something rather than wait for a year or two years.
Baroness Faithfull: I am grateful to all who have spoken to this amendment. I fully appreciate that my noble friend is well aware of how serious is the situation. The consultation paper itself says that currently about 4,000 management orders are made each year and that the number of houses in multiple occupation which are in poor condition, as the department's research has shown, far exceeds that figure. Clearly the research department within the Minister's department is well aware of the seriousness of the situation.
I hope that it will be possible to discuss the matter with the Minister and, as the noble Lord, Lord Seebohm, said, perhaps have an amendment to the Bill at a later stage. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 [Interpretation of Part I]:
11.15 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 93:
Page 34, line II, after ("sub-tenancy") insert ("and a rental purchase agreement as defined in Regulation 10(1)(i) of The Housing Benefit (General) Regulations 1987, for so long as the title to the property has not been transferred to the rental purchaser").
The noble Lord said: In moving Amendment No. 93 I speak also to Amendment No. 172. This amendment deals with rental purchase. I believe that the Minister will be aware from his advisers that this is a phenomenon specifically related to conditions in the North. It is not exclusively related to the North, but from the evidence that I have read many of the councils have been very concerned at the plight of those who live in their areas and who have been induced to take up what appears to be a sensible arrangement but which has proved to be a nightmare for the poorer section of the community. It believes that it is undertaking a legitimate form of house purchase, but in fact it has been found that is not what it is.
In essence this amendment is seeking to add to that part of the Bill that relates to definitions. We are saying that a
"'tenancy' includes a sub-tenancy and an agreement for a tenancy or sub-tenancy; and".
We then insert,
"a rental purchase agreement as defined in Regulation (101(1)(i) of The Housing Benefit (General) Regulations 1987".

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The regulation states:
"Rent. Subject to the following provisions of this regulation, the payments in respect of which housing benefit is payable in form of a rent rebate or allowance are the following periodical payments".
Under (i) the regulations state:
"payments under a rental purchase agreement, that is to say an agreement for the purchase of a dwelling under which the whole or part of the purchase price is to be paid in more than one instalment and the completion of the purchase is deferred until the whole or a specified part of the purchase price has been paid".
We all understand that in essence the way in which this scheme has been operated, it is nothing more than a hire-purchase agreement. That worries a great many people. I shall be grateful if the Minister will either accept the amendment or explain to those outside the Committee who are very worried that there is no need for this amendment and that they can retain or obtain better protection than they have from the operation of the law as it stands. I beg to move.
The Earl of Caithness: I believe that the noble Lord is also speaking to Amendment No. 172.
Lord Graham of Edmonton: That is correct.
The Earl of Caithness: Amendment No. 93 would give all rental purchasers who entered into agreements after this Bill, the status of tenants under this Bill, with all that that implies. But practically a rental purchaser is not an assured tenant. He is someone purchasing his property in instalments whose rights and obligations under his contract to purchase are different from those of a tenant under a lease. Amendment No. 93 would not help him very much. A rental purchaser enters into a fixed term contract with the vendor of the property he is purchasing. Therefore, he will not have the right to go to the rent assessment committee for it to consider the sum that he is paying for his property until the end of the fixed term, by which time he will own the property and it is already necessary to go to court to evict a rental purchaser, so he has some security.
Amendment No. 172 will bring rental purchasers within the scope of Section 11 of the Landlord and Tenant Act 1985. Section 11 is a very important section which sets out the repairing obligations of the landlord in relation to most leases of seven years or less, particularly periodic tenancies. I believe that many rental purchasers take on full repairing obligations in their contract and this amendment will put the liability on their vendors. However, I believe that many rental purchase agreements are for longer than seven years and this gives them a stake in the property greater than that of tenants on short or periodic leases and consistent with full repairing obligations.
Also, when an occupier takes on full repairing obligations this is normally reflected in the amount he pays by way of rent or charge, and in an agreement when this has happened it would be wrong to put the repairing obligation on the landlord. We believe that it would not be sensible to make a rental purchaser an assured tenant under the Bill when he has little to gain by it. We do indeed realise that there have been
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problems with rental purchase for some people, and we are awaiting with interest the results of the AMA survey. However, I do not believe that these amendments are the way to help rental purchasers. I believe the main provisions of this Bill in enabling landlords to charge market rents will go a long way to changing the situation.
I can assure the noble Lord, Lord Graham of Edmonton, that the Government are alive to the problems; but, in view of what I have said, I wonder whether it might not be wise to withdraw the amendment until we see what the AMA has to say on the matter.
Lord Graham of Edmonton: I shall certainly do that. I note that the Minister has made no commitment until we see what the AMA survey throws up. I know from looking at the correspondence I have received in preparing for the debate that the residents of many—indeed most—local authorities in the North are very concerned. We think that this solution as a security measure would be the answer. We do not say that it is the only answer. I hope that those outside the Committee will think of this as an ongoing matter which has not been closed, dropped or killed by the Minister. However, he has given me sufficient hope to enable me to say that I doubt whether I shall be coming back to it during discussions on this Bill. Like the Minister, I shall await the findings of the survey. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 94:
Page 34, line 30, at end insert—
("For the avoidance of doubt, in this Act, tenancy means:
Any grant of a right to occupy a dwelling-house as a residence, for occupation with exclusive possession at a term, whether or not at a rent, made between distinct parties intending to create legal relations.
There shall be a tenancy notwithstanding that in the case of an agreement which amounts to joint exclusive possession, the lawful joint occupants have entered into possession at different times.
In construing documents which purport to represent agreements to grant rights to occupy dwelling-houses, courts shall have regard to the true nature and effect of the transaction and shall determine from all the circumstances, including the conduct of contracting parties, the true nature and effect; the courts shall be astute to detect cases where documents do not reflect the true nature and effect of the agreement.").
The noble Lord said: This amendment deals with the position of licensees. Not for the first time, people outside the Chamber believe there is a problem while those inside the DoE believe that there is not a problem. That is because those in the DoE do not live in the real world. In this amendment we seek to define "tenancy" on the face of the Bill.
Landlords will not make use of the assured tenancy scheme unless there is an incentive for them to do so. There is every incentive for landlords to let on licences rather than to use the assured tenancy scheme or even the assured shorthold scheme. The creation of the excluded licence gives them even more incentive to do so. If the Government want to deal with the problem, they must make a clear ruling that is a disincentive to the use of licences.
In Committee in another place on 4th February the Minister stated that the courts were dealing with the problem. Although this was probably largely true in 1984 when the House of Lords decided the case of Street v. Mountford, in a series of cases since then the Court of Appeal has consistently undermined that judgment and made of the state of the law an inconsistent morass in substance and a narrow and pettifogging approach in method. I wish I had coined those words myself. They sound very good. I am happy to repeat them. They have been written for me by somebody else.
Those outside the Chamber consider there is a real problem that is not addressed in the Bill. If the Minister tells me that this is not the way to address the problem and that there is some other means, I shall be happy to listen to him. I beg to move.
The Earl of Caithness: This amendment deals with a very complicated issue which has preoccupied distinguished legal minds for many years. The judgment in the case of Street v. Mountford, was believed by many to be conclusive in this issue. In its wake many landlords and tenants recognised that they had entered into agreements which would be construed as tenancies in the courts, even though they were called licences. Since then the Court of Appeal's decision in the case of Antoniades v. Villiers has added further complications to the issues.
I think that it may just surprise the noble Lord, Lord Graham of Edmonton, to know that we in the DoE are aware there is a problem, the reason being that we are humans. We live in the real world. We have been, or are, tenants and we have been licensees. Therefore we understand some of the problems which exist. I know that it is difficult for some people to realise that fact, but we try to be as realistic as possible.
However, I am afraid that I must say to the noble Lord that we shall not solve the problems before us by this amendment. Indeed, I do not think that we shall even solve them by the provisions in the Bill, because a housing Bill is not the place to deal with a fundamental issue of landlord and tenant law—certainly not this one, which is one of the most complex.
The problem of non-exclusive occupation licences has come into sharp focus because of the different outcomes in the Court of Appeal decisions in the recent cases of AG Securities v. Vaughan and Antoniades v. Villiers. I understand that in the AG Securities case leave has been granted to appeal to this place and that the case should be heard in the autumn. It would be wrong for me to anticipate the outcome of the judgment, but I believe that we can expect a decision on the case which will be conclusive and enduring.
I believe that sham licences such as this amendment attempts to tackle are a product of a regime which has held down rents and made it difficult for landlords to repossess their property. We are tackling both those problems in this Bill. We offer the landlord in shorthold a guaranteed right of repossession for a tenancy at market rent. There will be no need or incentive for landlords to resort to
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sham licences. If they do, I believe the courts will be astute to detect such shams, as they already are and as this amendment enjoins them to be, and some landlords will find they have created assured tenancies and given their tenants security of tenure.
Although I fully understand the point of the amendment moved by the noble Lord, Lord Graham of Edmonton, I cannot for the reasons I have given accept it. I hope that one day we shall be able to deal with the matter in its proper place; namely, in a Bill on landlord and tenant law. In the meantime, we hope that this Chamber, in another capacity, will sort out the law for us.
Lord Graham of Edmonton: I am most grateful to the Minister. He rests his case on the possibility of dealing with the issue in a landlord and tenant Act. However, we have not been without such Acts over the past three or four years, and though this problem has been in existence for longer than that the opportunity was not found to include it.
Nevertheless, I have heard what the Minister has said and those outside this place will read what he has said. If they prompt me to take some action in the future, I shall be most willing to listen to them. As I say, I am grateful to the Minister for having put on record what he has said on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 95:
After Clause 45, insert the following new clause:
("Conditions in houses in multiple occupation.
.—(1) Subject to) section 126 below, this section shall have effect in relation to protection for assured tenants in houses in multiple occupation in the private rented sector.
(2) The relevant provisions of the Housing Act 1985 (as specified in Schedules 14 and 15 below) shall be amended to—

(a) repeal the requirement for a local authority to make a management order in respect of a house in multiple occupation before enforcing the management regulations;

(b) secure a standard procedure for the serving of notices requiring improvements by enabling authorities to serve all notices on the person responsible for the management of the house;

(c) provide for a single notice to the landlord of a house in multiple occupation whereby any of the powers of the local authority may be enforced; and

(d) place a duty on local authorities to enforce amenities notices in houses in multiple occupation.

(3) For the purposes of this section, the 'relevant provisions' shall be those provisions of the 1985 Act which relate to the matters specified in subsection (2) above and which are subject to amendment in Schedules 14 and 15 below.").
The noble Lord said: In moving this amendment it may be for the convenience of the Committee if I speak also to Amendment No. 170A.
The Earl of Caithness: Is the noble Lord not speaking also to Amendments Nos. 161 to 169 and to Amendment No. 179?
Lord McIntosh of Haringey: I must apologise to the Committee; it was indeed my intention to speak also to those amendments. With these amendments we return to the question of houses in multiple

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occupation, which has already been raised by the noble Baroness, Lady Faithfull. In bringing forward the amendments we recognise that the Government have indicated—as the Minister of State indicated on Report in another place—that there are further amendments to be brought forward by the Government and, as the Minister said here today, that there are amendments which cannot be tabled now but which may have to be introduced later, perhaps after the passage of this Bill.
There are certain things here which we consider it necessary to deal with now, because we believe that there are improvements in repairs notices, in addition to those which have already been placed on the Marshalled List by the Government, which could be made relatively simple and which would enormously strengthen the Bill's ability to deal with that great problem. I say "great problem" advisedly. Houses in multiple occupation in the private rented sector are at the heart of some of the country's worst housing conditions. Four out of five houses in multiple occupation lack a satisfactory means of escape from fire.
Surveys have shown that nearly half of the houses in multiple occupation would justify a management order under the Housing Act 1985. In 61 per cent. of houses in multiple occupation tenants lack access to a full range of basic facilities. In Amendment No. 95 we propose to simplify the provisions of the 1985 Act. In other words, we want to repeal the requirement that a local authority go through the formality of making a management order before enforcing management regulations.
We are looking for a standard procedure for serving notices requiring improvements so that notices can be served on the person responsible for the management of the house. We are not looking for different people or for someone who is not responsible for managing the house.
In subsection (2)(c) we provide for a single notice to enforce any of a local authority's powers. That is again referred to in Amendment No. 170A, which provides that all the notices under the 1985 Act can be made part of a single notice. In other words, a notice relating to the power to require the execution of works to render premises fit, a service and contents of overcrowding notice, and notices relating to means of escape from fire, powers to limit the number of occupants of a house, and so on, could all be made part of one notice instead of there being separate notices. Subsection (2)(d) places a duty on local authorities to enforce amenities notices in houses in multiple occupation.
I have forgotten the numbers, but the amendments to which the Minister referred when he corrected me cover a number of other points about houses in multiple occupation which are of great significance.
The defects in houses in multiple occupation to which we have referred—the lack of basic amenities, frequent overcrowding, unsatisfactory means of escape from fire and the general poor management—are problems which are readily understood by government and have been understood by all governments over a period of years.
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We do not feel that it is good enough for government to continue to put off all the simplifications of the law which are necessary to deal with the problems. It is not satisfactory to put them off to subsequent legislation. We are grateful for the improvements in the drafting of the Bill which have been made. We believe that the simplifications now proposed will make the law more effective. We hope that they will find favour with the Government. I beg to move.
The Earl of Caithness: These amendments deal with a subject which is only tangentially related to the subject matter of the Bill but is one about which the Government are concerned. Much research, including some by my department, has been done into houses in multiple occupation. It has revealed that the conditions in many of them are poor. The department appointed an environmental health adviser who has been visiting local authorities all over the country, finding out about their problems. His visits have confirmed the research findings and also confirmed the Government's view about local authorities' powers to deal with houses in multiple occupation.
Most local authorities accept that the powers they have under Part XI of the Housing Act 1985 are very extensive and generally suitable for the task of improving HMOs and bringing them up to standard. However local authorities have made the point that they would like to see the powers streamlined in certain respects. Accordingly, my honourable friend the then Minister for Housing and Planning made an announcement in another place on 9th June that the department would be consulting local authorities about ways in which their present powers could be strengthened. As I said, a consultation paper was issued on 18th July.
Members of the Committee will be aware that some of the proposals in that paper are very similar to the proposals contained in these amendments. The paper proposes that the management regulations should apply to all houses in multiple occupation automatically, as Amendments Nos. 95 and 165 and the subsequent repeals in Amendment No. 179 would provide. It proposes that there should be a common single notice procedure, as does Amendment No. 95 and in some respects Amendment No. 170A. It proposes appropriate changes to the definition of the person having control, as do Amendments Nos. 161 to 164 and 167 to 169. The paper invites comments by the beginning of September. One important issue on which it invites local authority views, and an issue not addressed by these amendments, is the definition of a house in multiple occupation, since there is evidence that local authorities differ widely in their interpretation of the term. It is important that we should get an agreed definition before we start changing the powers applicable to an HMO.
I am sure that the noble Lord, Lord McIntosh of Haringey, will accept that the Government share his objectives of improving the condition of HMOs and that matters are very much in hand. I hope that as a result of those assurances he will be able to withdraw this amendment.
Lord McIntosh of Haringey: The Minister's reference to the former Minister for Housing and Planning confirms what had only been rumour up till now, that he himself has changed his responsibilities to include I think at least housing, or some additional responsibilities within the department. He seems unable to confirm that; I thought it was now confirmed. I was about to congratulate him on his increased responsibilities; if that is true, I congratulate him sincerely.
I listened carefully to what the Minister said. There is a very difficult problem here. We do not want any further delay. We should like these protections, which have not been adequately argued against, I am afraid, put into the Bill now rather than waiting for a later stage. I appreciate the virtues of consultation, the work that is being done within the department and the appointment of the environmental advisers. But these are urgent matters; they will not brook further delay. If we have these amendments wrong, I should like to talk to the Government about them. However I should not like there to be any delay later than the Report stage of the Bill before we see something better on the statute book to deal with the evident abuses which have taken place and are still taking place in houses in multiple occupation.
I accept the sincerity of' the Minister's response. I know that he is concerned with the matter and that he recognises that this is one of the worst areas of housing provision in the country. If together we can work for a better way of overcoming the problem here, I think we should do so. But in order to do so it is right that I should beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 96:
After Clause 45, insert the following new clause:
('Notification to tenant of change of landlord
.—(1) If the interest of a landlord under a tenancy of premises which consist of or include a dwelling is assigned, both the person who was the landlord immediately before the assignment ('the old landlord') and the person who is the landlord immediately after the assignment ('the new landlord') shall give to the tenant notice in writing of the assignment and of the new landlord's name and address in accordance with paragraph 28A of Schedule 14 below.
(2) Section 3 of the Landlord and Tenant Act 1985 shall he amended in accordance with that paragraph.").
The noble Lord said: In moving Amendment No. 96 I should like to speak also to Amendment No. 174 which perhaps contains the meat of this pair of amendments. The problem here has been referred to on a number of occasions in Committee over the last week. It is that many tenants do not know who their landlord is. That is not simply because of the very complicated abuse of the law by people such as Mr. Nicholas van Hoogstraten. It is true of a very large number of landlords who may not even be trying to evade the law, but who leave their tenants in a position where they cannot effectively exercise their rights.
When one looks at the Landlord and Tenant Act 1985, one could be forgiven for thinking at first sight that all of the problems had been resolved by that Act. But unfortunately that is not the case. Section
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3(1) of that Act requires the new landlord to tell the tenant his name and address. But of course if the tenant does not know who the new landlord is how can he institute the criminal proceedings which are made possible by Section 3(1) of the Act? It is a Catch-22 situation as regards the tenant. Unless he knows who the new landlord is and is informed by the person who is in a position to tell him, he will find it very difficult to implement his rights under Section 3(1).
Section (5)(1) of the Act states that the rent book should contain the landlord's name and address. That sounds all right, but it only applies to weekly rent. If the tenant has not been told in the first place of the landlord's name and address, how can he see that his rights are enforced? Section 3(3) of the 1985 Act, as inserted by Section 50 of the 1987 Act, states that the old landlord is responsible for breaches of the tenancy until the tenant has been told of the landlord's new name and address. But, in practice, if he has not been told it is no good the tenant pursuing the old landlord because the old landlord does not have the control over the property to do any work that is necessary to correct a breach of the tenancy. If he is not worth suing, the right is worthless.
Section 47 of the 1987 Act states that any demand for rent or service charges is invalid unless it contains the name and address of the landlord. But that only applies to variable service charges and not to fixed service charges. Therefore, we need corrections in that respect as well.
Finally, Section 48 of the 1987 Act states that the liability for rent or service charges is suspended unless the landlord gives the tenant notice of an address on which notices can be served. That again sounds all right because it covers rent as well as service charges, but still tenants who do not know their rights are in danger of paying the rent demanded, even if Section 48 has not been fully complied with.
No one doubts that the 1987 Act, like the 1985 Act, was designed honourably to deal with the problem of property changing hands to the detriment of the tenant's interest. But we are saying that that Act has not worked yet and that more action is required to tighten up the law. That is what the amendments are intended to do. If the Minister says that this is only tangential to the purpose of the Housing Act, as he said in response to an earlier amendment, I can only say that the protection of tenants in private rented accommodation, which is what we are talking about, should be central to the Government's housing policies whether or not it is central to the stated purposes of this Bill.
If the Bill is to be a coherent attack on housing problems, these problems should be tackled. We suggest in these amendments a particular way of tackling a particular, very serious problem. I beg to move.
Lord Ross of Newport: I wish to support very strongly the amendment moved by the noble Lord, Lord McIntosh, who has highlighted the problems that still exist. There are anomalies; the situation should be tightened up. I used to live not very far from this Chamber in rented accommodation. I

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finally bought the accommodation as a tenant on a long lease, but I never knew who the landlord was. When I bought it, the landlord was Legal and General Insurance. Then it was sold on to somebody in the Channel Islands, the United States or heaven knows where. I never knew, to the day I sold it, who owned the property. I might have been able to find out under the 1985 and 1987 legislation. If that is so, I was remiss in not doing so. There are still anomalies which have been highlighted by the noble Lord. I strongly support the amendments. I believe that tenants should know who is their immediate landlord.
The Earl of Caithness: I entirely agree that it is important for tenants to know who is their landlord and how he can be contacted. Those points were forcefully made in the analysis of the Nugee Committee, whose report on the management of privately owned blocks of flats provided a basis for the Landlord and Tenant Act 1987. The noble Lord, Lord McIntosh, has used most of the answers that I was going to give him. He looks at it from one side and I look at it from the other.
The noble Lord asked how a tenant can discover the name of a new landlord. The Landlord and Tenant Act 1985 already contains provisions concerning the disclosure of a landlord's identity on request to the person demanding the rent or the landlord's agent; about the disclosure of the names and directors of corporate landlords; about the duty of a new landlord; and, if the tenancy of premises consisting of or including a dwelling is assigned, about the duty to inform the tenants of his name and address. Failure to do so is a criminal offence.
The provisions were strengthened in the Landlord and Tenant Act 1987. Section 50 of the Act provides that, in addition to the duty on the new landlord, the former landlord should remain liable to the tenants for any breach of covenant or obligation to the tenants until the tenants are notified of the assignment and of the new landlord's name and address.
Contrary to what the noble Lord has said, I believe that that gives a powerful incentive to a former owner to ensure that the necessary information is supplied, since no one wishes to remain liable for matters over which he has no direct control. In addition, Section 47 of the 1987 Act provides that a written demand for rent or service charges must contain the landlord's name and address, and, if the address is outside the jurisdiction of the High Court, an address in England or Wales at which notices and proceedings may be served on him. If that information is not provided, the tenant is not liable to pay unless and until it is forthcoming. Those sections and Section 48, which requires a landlord to notify tenants of an address for service of notices, have significantly strengthened the tenant's position as regards his ability to identify and contact his current landlord. It makes no difference to the tenant who provides him with that information. Therefore, I can see little advantage in imposing a duty on the former landlord after he has assigned his interest.
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However, as this is the last amendment and as the noble Lord, Lord Ross of Newport, has supported so much of what we want, perhaps I may be allowed to consider the matter between now and another stage.
Lord McIntosh of Haringey: The Minister is as disarming as ever. I am not entirely satisfied with his analysis of the situation. He has already agreed that there are obligations on the old landlord—for example, in respect of breaches of tenancy agreements. The obligation which we propose—that the old landlord should have the responsibility of notifying the tenants of the last known address of the new landlord—is not particularly onerous. It ought not to cause the kind of difficulty which the Government appear to see. However, in view of the Minister's undertaking to take the matter away and look at it again, which I assume implies recognition that the matter is one which could and should be dealt with in the Bill if a suitable way can be found for doing it, I think it is proper for me to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Brabazon of Tara: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at ten minutes before midnight.