Housing Bill

HL Deb 18 June 1996 vol 573 cc256-308

House again in Committee

Clause 113 [Proceedings for possession]:

Baroness Hamwee moved Amendment No. 255D: Page 73, line 36, at end insert ("and subject to subsection (2) below, sections 83, 84 and 85 of the Housing Act 1985 shall apply to such proceedings as if the word "introductory" were substituted for the word "secure" ").

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 255E and 258. I thought for a moment that I might achieve acceptance of these amendments extremely quickly but perhaps I have too much of a sense of fair play.

Although the amendments may appear to be quite long and rather complicated, their purpose is relatively straightforward; it is, that tenants shall not lose their tenancies without recourse to the courts except in cases of neighbour nuisance.

In its current form, the scheme of introductory tenancies gives local authorities extremely wide powers to terminate the tenancy and to evict the tenant during the first year of the introductory period. There are no restrictions on the local authority's discretion and the involvement of the court is purely procedural. For example, it would be open to a local authority to terminate a tenancy for minor breaches of the tenancy agreement: failure to maintain a garden, small amounts of rent arrears and other matters which might not even constitute breaches of the tenancy agreement at all. The tenant has no recourse to the courts other than by an application for judicial review. That is a matter which has been touched on more than once in our discussions today. I am sure that the Government do not wish to encourage even greater use of that remedy, if one can even call it a remedy as it is merely a review of procedure rather than a review of the outcome.

I suggest that the scheme of introductory tenancies is wider than the consultation process proposed. The Government's paper consulting on anti-social behaviour expressed concern about the major drain on resources and time caused by tackling neighbour-nuisance cases and was concerned to identify the minority whose lifestyle and behaviour is incompatible with the quiet enjoyment of neighbours.

The scheme which is now proposed is far broader than is necessary to address those concerns. Under the new scheme, in, for example, a rent arrears case, there would be no inquiry by the court as to whether the alleged arrears exist or why they had arisen. It is the experience of housing practitioners that often it is only when a matter comes before a court that the tenant's situation becomes clear. There may be a breakdown in the relationship with the housing officer. There may be language difficulties giving rise to a misunderstanding. A relatively high proportion of those in local authority accommodation are vulnerable for one reason or another and may face special difficulties. Dealing with local authority bureaucracy is a challenge to them.

The amendment seeks to provide that in the first year of the tenancy, the local authority may seek a possession order on the same basis as for a secure tenancy. I have referred to cases of neighbour nuisance which perhaps stand on a different footing from other reasons for eviction, in that the interests of other people are very directly at stake. I accept, at any rate for the purposes of this amendment, that it is important for the local authority to be able to act swiftly against tenants as soon as they start to cause problems for other people. With this amendment and in those limited circumstances, I am therefore suggesting that it is perhaps easier to justify bypassing the court procedure, although from the way in which I put the matter the Committee will understand that I am not even wholly enthusiastic about that one exception. I beg to move.

Baroness Hollis of Heigham

I accept that anti-social behaviour on council estates can be a major problem and is probably a growing nuisance. But I am not sure that introductory tenancies are the right way forward. From my experience of 25 or 26 years as a ward councillor, in only a few cases that I recall did anti-social behaviour manifest itself within the first year of a tenancy. I found, from my own experience, that it tended to be associated with established families where there was a marital breakdown, where there was shouting, screaming and fighting and disturbed children, or possibly where you had a lone parent and as the children grew into their teens they became out of control or started inviting in other youngsters from outside the estate. In all such cases anti-social behaviour was from well-established tenants and had nothing to do with first-year tenants.

Secondly, those who exhibit anti-social or inappropriate behaviour in the first year tended, from my experience, to be people with some form of mental illness or mental health problem. That does not mean that one should not protect adjacent residents against someone whose home, for example, has become a fire risk because he insists on keeping every newspaper, which he has piled high, or against someone who perhaps has learning difficulties is keeping open house for every child on the estate and children from outside the estate. The right approach is to assess the tenant and bring in support, and a move may very well be necessary to a more sheltered environment.

Similarly, it worries me that one could appear to license streets ganging up on an ethnic minority family living in a white street, especially if tenants have recently exercised their right to buy and are trying to go in for up-grading the estate, which they wrongly believe means getting certain other families out of the estate in order to keep up the property values.

I do not think that introductory tenancies address the problem of anti-social behaviour; nor are they particularly relevant, either one way or the other. The right way forward is in the amendments which we will be discussing later today that will grant local authorities mandatory possession where the courts agree that there has been serious anti-social behaviour. From my experience, this is much more likely to occur in an established tenancy than in the first year of a tenancy.

Some local authorities want this power and others do not. I would reluctantly acquiesce to a voluntary scheme, which of course this one is. We need stronger safeguards than currently exist against abuse. The next series of amendments may deal with some of the safeguards against abuse that we need to see in place. But before any scheme is adopted there must be consultation with tenants.

I do not believe that introductory tenancies are a relevant solution to the problem of anti-social behaviour. It seems to me that they could license inappropriate behaviour by the local authority or, more possibly, result in pressure being exerted on the local authority from other tenants. We need convincing that not only are introductory tenancies relevant, but that there are proper and adequate safeguards to ensure that there is no victimisation.

Lord Lucas

I share many of the concerns expressed by the noble Baroness, Lady Hollis. I hope I shall be able to convince her, in not too long a speech, that we have taken the right measures to introduce the appropriate safeguards.

The purpose of introductory tenancies is to get trouble-making tenants out quickly. To that extent the amendments, particularly Amendment No. 255D proposed by the noble Baroness, Lady Hamwee, would effectively drive a coach and horses through the new regime by putting introductory tenancies on exactly the same footing as secure tenancies when it comes to eviction. Only a minority of cases will ever come to court because the vast majority of new tenants will, like most secure tenants, keep the peace and their tenancies too will become secure after a year. But where eviction is thought necessary—and such action should never be undertaken lightly by an authority—it is important that it takes place quickly and with the minimum of fuss.

Introductory tenancies are designed to send a clear message to those who engage in persistent anti-social behaviour that such behaviour will not be tolerated and that tenants will lose their homes as a result.

We know that Manchester City Council, with 13,000 new tenants a year, and Gateshead, in particular, are looking forward to bringing in these provisions as soon as they are able to. They clearly think that their problems will be addressed by these provisions. As the noble Baroness, Lady Hollis, said, this is a discretionary and voluntary scheme. For those, like her own council, which are lucky enough not to suffer from these problems, it would not be necessary; and it would be an expensive scheme to introduce if it was not needed.

Towns like Manchester and Gateshead would not introduce this scheme; indeed, there would be little point in introducing it if they were saddled with the same eviction procedures as they have to go through now with their secure tenants. Those are authorities that have put anti-social behaviour at the top of their housing agenda and want to embrace introductory tenancies. We must not shackle their ability to get rid of the hooligan element which has contributed to the spiral of despair in some estates.

A secure tenancy is a lifetime tenancy and introductory tenants can only earn that right by behaving themselves during the trial period. That is the message authorities like Manchester wish to hammer home to some of their tenants.

It may give comfort to the noble Baroness, Lady Hamwee, to know that those authorities which bring in an introductory tenancy regime must have in place fair and rigorous procedures. The Department of the Environment will be issuing guidance to local authorities and housing action trusts on the matter.

Landlords—that is, local authorities and housing action trusts—are already aware that tenants can challenge their decision to evict by applying for judicial review in the High Court, and so they cannot evict a tenant on a whim or for a reason totally unconnected with the occupation of the dwelling. Before making a decision to evict they should undertake investigations to ensure that the action they propose to take is reasonable. For example, they would want to be sure that the complainants are reliable people. They would also assess the seriousness of the complaint to ensure that the annoyance is such that it would annoy a reasonable neighbour and not just one who is unreasonably sensitive.

Vulnerable tenants are an issue with which landlords are fully familiar and particular attention to their needs is essential to ensure that no injustice occurs. We will return to the matter on a later amendment. To achieve that aim the landlord should liaise with the welfare services. I believe that all of these are matters with which landlords are already familiar and our guidance on the subject will be crystal clear.

Turning briefly to Amendments Nos. 255E and 258, we feel those would be too prescriptive and would tie the hands of local authorities unnecessarily. The Government want local authorities to have a free hand in deciding what sort of behaviour could lead to an introductory tenancy being brought to an end. There might be frequent breaches of a tenancy agreement or rent arrears. It must be right that authorities can act to get rid of a tenant in such circumstances. But neither of these would fall within the scope of Ground 2. In fact, they are covered by Ground 1 of the 1985 Act. I hope that what I have said will be enough to persuade the noble Baroness to withdraw her amendment.

9 p.m.

Earl Russell

I believe that the noble Lord, Lord Lucas, was not in the Chamber before dinner. I listened with great interest to his opposition to the attempt to bring in prescriptive powers on the grounds that they were not necessary because the power of judicial review existed. However, the noble Lord will not know that I was arguing before dinner that the absence of statutory restraint tended to multiply the number of judicial reviews. If the noble Lord were setting out to illustrate my argument, he could not have done it better.

Lord Lucas

The noble Earl is quite correct. I believe that I was in the Chamber for most of the time before dinner, but of course I missed that particular argument. If I had heard it, I should have been able to repeat it. I also take the opportunity to apologise to the noble Baroness for not having been present right at the beginning of the introduction to her amendment. I was rather taken aback by England's third goal and, as a consequence, was not watching the clock.

Baroness Hamwee

The reason for me being a little late this afternoon was due to the number of Dutchmen circulating in central London; I knew that they were Dutch because they were wearing inflatable clogs on their heads.

My noble friend is quite right about judicial review. I do not believe that the Minister's answer stands up. Certainly, it cannot be a remedy to be recommended. The noble Lord said that my amendment would "drive a coach and horses" through the provisions regarding introductory tenancies, but of course that was part of the idea. I entirely share the feeling expressed by the noble Baroness that the message which will be sent out to introductory tenants is not that they have to earn the right and show that they can behave well, but that they should not behave badly for the first year.

While I accept that we are discussing an elective procedure, I have considerable reservations about the whole proposal. However, points have arisen as a part of this group of amendments to which we shall return later this evening. Therefore, I think it best to review—non judicially, in my case—the totality of the debate and possibly return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 255E not moved.]

Lord Swinfen moved Amendment No. 256: Page 73, line 38, at end insert ("or it is unreasonable to make such an order").

The noble Lord said: In moving the above amendment, I shall, with the leave of the Committee, speak also to Amendment No. 257. During the 12-month period of the introductory tenancy, a landlord will be able to evict a tenant at any time. The landlord will have to obtain a possession order from a court but, as I understand the Bill, there will be no defence to the possession proceedings and the landlord will not have to prove to the court that tenancy conditions have been broken. There is nothing in the Bill to indicate on what grounds a landlord would issue such proceedings, but debate around the Bill has indicated that the introductory tenancy is intended as a method to enable the speedy eviction of anti-social tenants.

The concern about the introductory tenancy regime is that it gives considerable power to landlords to make decisions as to which tenants are behaving anti-socially and gives the tenant no defence against proceedings which may be unreasonable. There are particular concerns among representatives of disability organisation that people with unusual behaviour due to mental illness or disability may find themselves summarily evicted by a landlord who is under pressure from other residents, or who is unwilling or unable to try to resolve any problems in a more constructive manner.

I turn specifically to Amendment No. 256. As I have already said, in order to evict an introductory tenant, a landlord will have to obtain a court order. Under the proposed legislation there will be no grounds on which the court can refuse to give a possession order to enable a landlord to evict an introductory tenant. The amendment seeks to ensure that, if the court does not feel it to be reasonable to make such an order, it will not have to do so. It would thus ensure that in cases in which eviction was not in the eyes of the court the most appropriate way to deal with a problem a tenant could not be evicted. As the proposals are currently set out, there is no incentive for a landlord to first try to solve problems more constructively because he will have the total power to evict an introductory tenant in all circumstances.

The concept of "reasonableness" in courts issuing court orders for possession is already well established. There are at present a number of grounds for possession of assured and secured tenancies where the court must be satisfied that it is reasonable to make an order. These include possession due to a breach of the conditions of the tenancy and for rent arrears in certain circumstances. The courts are, therefore, experienced in making decisions as to whether it is reasonable to grant possession orders.

Amendment No. 257 goes one step further than the previous amendment. It states that the court must order a possession order only where it is reasonable and, in addition, lays down criteria which the court must take into account in determining reasonableness. The amendment would help ensure that local authorities which establish introductory tenancies have fair procedures for taking action against such tenants. While the Government have indicated that it is their intention that that should be the case, in the Bill as constituted there is no legislative safeguard for a tenant whose landlord does not act reasonably or follow the Bill's procedures.

It is important, for example, that in the interests of natural justice an introductory tenant who is threatened with eviction should be given ample warning of the fact that such action is to be taken and given the opportunity to correct his behaviour. It would also seem appropriate that, in the case of tenants with disabilities or mental illness which may be leading to perceived anti-social behaviour, the landlord should take that into account and make every effort to liaise with the social services department or any other body involved in providing care and support to the individual. The amendment would also ensure that any action taken against the tenant was not discriminatory on the grounds of a person's race, sex, sexual orientation or disability. I beg to move.

Baroness Darcy (de Knayth)

I should like to express my support for the amendments to which I have attached my name and which have been so clearly explained by the noble Lord, Lord Swinfen. The introductory tenancy scheme is new; it gives much power to landlords and provides very little comeback to tenants. As the noble Lord said, disability organisations are genuinely concerned that people with mental illness or disabilities may find themselves evicted peremptorily for supposed anti-social behaviour, either because their landlord is unsympathetic or because of a lack of understanding on his part; or, indeed, because of pressure from other tenants, as mentioned by the noble Baroness, Lady Hollis of Heigham.

Amendment No. 256, whereby the court does not have to grant a possession order if it feels that that is unreasonable, and Amendment No. 257, which describes the yardstick by which to judge reasonableness, would ensure that the landlord considers carefully before taking action against a tenant. I hope the Minister will feel that these modest amendments have value. I look forward to hearing his reply.

Baroness Hollis of Heigham

I have much sympathy with the purpose of these amendments—they are consistent with what we were discussing earlier on the previous amendment—particularly as I do not like the concept of introductory tenancies. However, I hope that the noble Lord, Lord Swinfen, will not disagree with the point I am about to make. In a sense the provision is slightly the wrong way round because noise from a tenant suffering from schizophrenia, for example, is no more tolerable to the nextdoor neighbour than if the noise is being made by a teenager who will not turn the hi-fi down and who is not under the control of his parents and who has no such mental illness. The right response is not necessarily to say that the landlord should not be granted possession, either under an introductory tenancy or under any other tenancy, but that the requirement should be on the landlord to produce more satisfactory alternative accommodation; that is, accommodation with appropriate support structures and the like.

In other words, where this sort of situation blows up—if I may use that phrase—it is usually because there has been an inappropriate placing of a vulnerable tenant on an estate or in a property where there are no support services. The right answer is not necessarily for that tenant to remain there, or for the courts to decide whether that tenant should remain there. However, an obligation should be placed on the local authority as regards seeking possession of a property where the tenant has mental or physical health problems. There should be a duty—not merely a permission—on the local authority to provide more suitable alternative accommodation. That would seem to me a more helpful way forward because it then makes it appropriate for the other tenants to have quiet enjoyment of their property. It also ensures that the tenant who may have mental or physical health problems continues to enjoy proper and decent, but now supported, accommodation.

Earl Russell

I wish to support these amendments. Legislating is a little like firing a shotgun. One is aiming to hit something. It may be a perfectly legitimate purpose to want to get rid of anti-social tenants. It may be a perfectly legitimate purpose to want to get rid of pigeons. However, in both cases some of the pellets are likely to go to places where they are not intended. We create powers; quite rightly we do not thereafter have a continuing control over how those powers are exercised. They may be exercised in all sorts of ways. As we in this Chamber cannot sit down and decide whether each several tenant is anti-social—and if we did, we would never do anything else—the restraint of reasonableness, as proposed by the amendment of the noble Lord, Lord Swinfen, is very much the right one.

I take the point that the noble Baroness, Lady Hollis of Heigham, made; namely, that noise made by a schizophrenic is just as annoying to the neighbour as noise made by a careless teenager. But the fact that it is just as annoying may be compatible with it being rather more tolerable. In most decent roads—certainly including my own—people feel that there is a balance to be struck between the reason a disturbance is made and the amount of nuisance it creates. To take an example from my memory, I remember when my nextdoor neighbour at school decided to learn to play the tuba. I decided that I had to make a great effort to tolerate that when he was playing it himself, but when his friends came to exercise their lungs upon the instrument I did not feel the need to extend the same tolerance. This is where it may be relevant that the tenant may have some form of mental handicap. He may be schizophrenic, for example. The pacing late at night can be trying but because we know this sort of thing can happen to any of us we stretch a point and tolerate it. That is an important part of common humanity which I would not want these introductory tenancies to destroy.

It is also a vital point, one that has been made before in this Chamber many times—I repeat it only quite cursorily—that where one is dealing with tenancies for people with physical disabilities, there may be a question of purpose building which would be entirely wasted if one thought that the person might be chucked out after a year, and where one may have to have a process of learning to live and let live which may take a little longer. The reference to grounds for writs is of course also well taken.

A power which is as uncontrolled as the power created by Part V of the Bill could be dangerous in future in the hands of someone with prejudice. The reference to the power is important, but the test of reasonableness which is implied in Amendment No. 256 is right.

Therefore, again, we need to have restraints on the exercise of power. One cannot have absolute power without restraint. It will come in under judicial review if we do not put it in the statute. However, I believe that it is tidier, more limited, more specific and more predictable if the provision is put in statute.

9.15 p.m.

Lord Lucas

As with the previous group of amendments, we do not wish to fetter the way in which the power works in practice, to reduce it to the level of existing powers. We want it to be quick and easy in operation.

It is, of course, of vital importance that tenants who are in some way vulnerable, have adequate safeguards under the new system. I am thinking here particularly of the disabled—those individuals receiving community care, and those who do not speak English as a first language.

Councils will already be aware of the needs of those of their secure tenants who are vulnerable and that they will also need to act fairly and reasonably with regard to every aspect of the introductory tenancy regime. The Department of the Environment guidance, which will be sent to all local authorities, will reinforce this message and will contain advice on the special arrangements that need to be made to protect vulnerable introductory tenants. The initial information given to prospective tenants should be easy to understand so that tenants are aware of their duties under the tenancy. Where a tenant has special needs (for instance, people with learning disabilities), the authority should choose communication methods carefully to get across what is required of them and what support services are available. Carers and helpers should also be involved.

Liaison with social services will be essential. Authorities should make arrangements for automatic notification to social services at an early stage once any problems arise. Liaison should be on a formalised basis with each party (the housing department, social services, NHS and the tenant) aware of their role.

Vulnerable introductory tenants should be visited regularly either by the staff of the housing department, or by a care agency involved. Regular visits will enable any problems to be highlighted quickly.

I cannot emphasise too strongly how important it is for authorities to ensure that vulnerable people are fully protected. It will he essential that local authorities are fully alive to the needs of those tenants and to their relationship to the community as a whole.

The points made by the noble Baroness, Lady Hollis of Heigham, about support and placement are particularly relevant. However, I think in particular of the point just made by the noble Earl, Lord Russell. He spoke of the importance of our living as a community with people who suffer from disabilities which neighbours may find a little upsetting. We must make sure that councils are vigilant in ensuring that neighbours are not able to make a case for eviction against a vulnerable tenant whose behaviour they find upsetting. Such situations will require sympathetic but firm handling by the local authority. Eviction of the vulnerable tenant in those circumstances is not an acceptable result.

Clearly, as drafted the amendments suffer from the same deficiencies as those from the first group and we would not be able to accept them. With the assurances that I have given to the noble Lord, Lord Swinfen, of the attitude that we take to the problem, which will be communicated to landlords through our guidance, and which we would expect to be echoed through the application of judicial review should that prove necessary—given the general practice of local authorities and housing action trusts in this matter we would not think it to be necessary in all but the very occasional case—I hope that he will feel able to withdraw the amendment.

Baroness Hollis of Heigham

The Minister answered one of two questions that I would have asked. He confirmed that, as currently drafted were the Government not to accept the amendments, the Bill provides that the decision of the local authority to evict on the basis of an introductory tenancy was subject to judicial review. That was good.

May I put another question. If someone with mental or physical health problems made himself or herself the object of an eviction order, would he or she be regarded as having made himself or herself intentionally homeless? Where someone was vulnerable and in priority need, some of our concerns would be overcome if there were a continuing duty on the local authority to continue to have a duty to rehouse under the Act. In other words, I refer to the case of the schizophrenic where the noise level was intolerable. In a 1950s or 1960s flat, the sound levels between the second and third floors can be intolerable for the people underneath, perhaps with children trying to sleep. Possession is sought. In that situation would that person be regarded as having made himself or herself intentionally homeless; or could we hope that the local authority would continue to have a duty under the Bill to provide perhaps more appropriate accommodation?

Lord Lucas

I find myself in total sympathy with the noble Baroness but unable to be sure of giving her an accurate answer. If she will allow me, I will write to her.

Baroness Hamwee

It is something that we need to know very quickly. If it is not possible to have the answer later in the debate tonight, perhaps we may have it in time for us to take it into account when we debate these matters later in the Committee stage.

On another point, it is suggested that it is inappropriate to place too much reliance on judicial review. As I understand it, judicial review is a review of the process, not of the reasons for a decision being made. Without amendments, or without a local authority having adopted publicly known guidelines of the sort we have debated, the process can be quite unrelated to what we agree are all appropriate reasons.

Earl Russell

I listened with very great interest to the Minister's reply. I am in entire sympathy with the ideas he wants to put into guidance. I have no argument with his intentions. However, he is leading local authorities into temptation. Housing stock is scarce in many local authority areas. Many people want it. So the temptation to get rid of a tenant may, on occasion, be acute for a great variety of reasons. The Minister is creating a temptation and then telling people not to succumb to it. He is telling them not to eat the apple. I think that is beyond his powers.

Baroness Fisher of Rednal

I came in late to the debate, but I believe the problem arises from a health authority being able to re-house people that it wants out of the hospitals but without the back-up to go with that. In other words, the local authority is carrying the can for another area of government. The authorities have no back-up. People suffering from all kinds of mental problems should not be penalised for that. The local authority should be able to say to the hospital authorities: "Will you please come in with your workers to see whether, through resettlement, we can keep them in housing, instead of putting them through this gamut which might mean eviction?". Better co-ordination is preferable to a strict requirement that they be got rid of, which is detrimental to them and to all the people they have disturbed.

Lord Swinfen

Before my noble friend responds to the points made, can he tell me what is the cost of judicial review? He mentioned it on a number of occasions in relation to different amendments. Would the introductory tenant be likely to receive legal aid to obtain a judicial review? What would be the cost of introducing reasonableness into the Bill as against the cost to tenants and local authorities of having to apply for judicial review?

Lord Lucas

To deal with the latter point first, the cost would be that the system of introductory tenancies would thereby become ineffective. The key remedy that the provision gives to landlords is the ability to get rid of a tenant quickly without having to go through lengthy court procedures.

As to the cost of judicial review, I shall chance saying that this is a matter for which legal aid could clearly be obtained. If not, it is not likely to be a very effective defence available to local authority tenants. The High Court, on judicial review, has the power to quash a decision if there are procedural errors in the decision-making process. It can also do so if the decision is one which no reasonable council would make. That is the level of test at which we are looking.

I do not believe that the noble Baroness, Lady Fisher, missed anything by coming late to the debate. Perhaps she was watching England's fourth goal. Clearly, we all share the same concerns. I have listened and will read with great care what has been said this evening. We want to achieve the same result, which is to make sure that the considerable new power that we are giving to local authorities, fettered only by the right of judicial review, is not one which, in practice, will be abused as this evening people feared that it might be abused. It is a concern that we all share. We believe that we have taken the necessary steps but we are not so arrogant as to say that we are sure about it until we have listened very carefully to what other noble Lords have to say.

Baroness Hollis of Heigham

I am sorry to delay the noble Lord, Lord Swinfen, again. It would help enormously if the Minister were able to come back, perhaps at Report stage, with an amendment to the Bill in relation to certain defined categories of vulnerable people—particularly those with mental health problems, learning difficulties and the like—to the effect that if the local authority, whether under an introductory tenancy or a secure tenancy, seeks possession of that property by virtue of alleged anti-social behaviour, nonetheless the person in question should not be judged to have made himself intentionally homeless and therefore the local authority should continue to have a duty to house. That would meet some of our worries. Otherwise, we leave local authorities very vulnerable to unpleasant pressures.

Baroness Hamwee

Let me prolong the discussion for just one short moment. I understand that for secure tenants, the practice of the courts in the case of intolerable nuisance by people who are mentally ill is to make an order for possession on condition that an offer of suitable alternative accommodation is made. I wonder whether the Minister could give an assurance—possibly not at this moment—that there is nothing in the Bill that would restrict the court in imposing a similar condition in the situation that we have been discussing.

Baroness Gardner of Parkes

Like the noble Baroness, Lady Fisher, I too came late to the debate. I am not sure about the last statement with regard to suitable alternative accommodation. Some cases are extremely difficult. From my own housing experience, I recall a tenant who constantly set fire to the wastepaper bin and therefore the flat. It was terrifying for everyone who lived within reach of that flat. What suitable alternative accommodation is available for such a person? Such problems can be extremely difficult.

Let me respond to the point made by the noble Baroness, Lady Fisher. I am chairman of a hospital trust where there are a great many psychiatric and mental health cases. We provide care in the community—continuing care. Now there is a new register, which is also a continuing register. One of the difficulties is that accommodation suitable for people suffering from mental illness is limited, particularly if one wants to put them not into secure housing or individual housing but into a place within a building where they are supported by other people. The minute that the building is filled and there is nowhere to move people on to the next stage, the whole system becomes gummed up. So it is not a very easy situation.

Lord Lucas

I can reply briefly to the noble Baronesses, Lady Hamwee and Lady Hollis. Perhaps they will permit me to look at the problems on the questions that they raised with a view to returning to them at Report stage or earlier.

Lord Swinfen

I thank everyone who has taken part in this short debate. Possibly I agree with the noble Baroness, Lady Hollis, that this situation has been put the wrong way round and that suitable accommodation should be given in the first place. I have a series of amendments that we will be dealing with at a later stage of the Bill, and I hope that when we come to them, even if the noble Baroness does not support the actual amendments because she does not like the wording, she will support the idea behind them.

Guidance is all very well, but I feel that the court should be able to use the test of reasonableness in the Bill on this occasion with introductory tenancies. I quite agree that judicial review is possible. It sometimes takes time to get to court and it costs a great deal of money. It would be much better if reasonableness were there in the first place, and the court could deal with the matter at a much lower cost then than having to go on to judicial review, which is going to come out of the tax and ratepayers' as well as the tenants', pockets.

I am not very happy with the response of my noble friend Lord Lucas on that point. I will, however, read the debate with care. At this stage of the evening I beg leave to withdraw the amendment, but I may well come back to it at a later stage.

Amendment, by leave, withdrawn.

[Amendment No. 257 not moved.]

Clause 113 agreed to.

Clause 114 [Notice of proceedings for possession.]

[Amendment No. 258 not moved.]

Clause 114 agreed to.

9.30 p.m.

Clause 115 [Right to request review of decision to seek possession.]

Lord Swinfen moved Amendment No. 260: Page 74, line 18, leave out ("a") and insert ("an independent").

The noble Lord said: I beg to move Amendment No. 260 and to speak at the same time to Amendment No. 261. I see that Amendment No. 261A in the name of the noble Lord, Earl Russell, is also grouped with these amendments; no doubt he will wish to speak to that amendment in due course.

The only safeguard given to an introductory tenant who is faced with possession proceedings is that he is entitled to a review of his case. The Bill proposes, however, that such a review shall be carried out by the landlord. Clearly, a review carried out by the landlord who has instigated the possession proceedings is unlikely to be impartial and is certainly unlikely to be seen as such by the tenant.

This amendment suggests that an introductory tenant faced with possession proceedings should be entitled to an independent review by someone other than his landlord. An independent review panel could be made up of lay people from the local community, in a similar way to the use of lay people who sit as justices of the peace, school governors or on social security tribunals. It would be possible to ensure that there was one representative from the local authority if this seems suitable. It would also seem appropriate to have tenant representation on such a body.

Given the very strong powers which introductory tenancies will give to local authorities—in essence, the right to evict any tenant with whom they are dissatisfied—it seems vital to me that there is at least some independent safeguard of the tenant's rights. The landlord is unlikely to be seen as giving an impartial review of the case. This may lead to introductory tenants choosing to challenge evictions via the judicial review process, causing expense to local authorities, individuals and, potentially, to the legal aid system, clogging up the court system. Some of this might well be avoided if the tenant felt that his appeal had been considered by a truly independent review panel as I propose in this amendment. I beg to move.

Earl Russell

I support the amendment. In speaking to my amendment, I would not like necessarily to suggest that it is in any way better than that of the noble Lord, Lord Swinfen. I do not intend to push my amendment to a Division, first, because it was drafted at home late on a Sunday night and, secondly, because I have some doubts about attempting to import the common law concept of natural justice into statute.

The point to which I wish to draw attention is the same as that made by the noble Lord, Lord Swinfen; that is, the need for an independent panel for review. It is in effect a judicial panel and somebody is being given something which is certainly in effect a punishment. Judging by much of what has been said about the purpose of the introductory tenancy, it may even be construed to be an intentional punishment.

It is a fundamental breach of the principles of natural justice for anyone to be judge and party in their own cause. The noble Lord, Lord Irvine of Lairg, recently gave a lecture on the judiciary, which attracted a good deal of attention and was the subject of a debate in this Chamber. In that lecture he referred, with some disapproval, to what is commonly taken to be the last case in English history when a judge attempted to strike down the provisions of an Act of Parliament in the reign of King James I. That was done on precisely this ground of natural justice, but in that case it made the Royal College of Physicians judge and party in its own cause.

The clause before us is the absolute carbon copy of the clause which was struck down by the judge in the reign of King James I. Drafting statutes in that way tends to lead Her Majesty's judges into temptation. Not only does the Bill make local authority judge and party in its own cause, it also purports, in Clause 115(2), to free the landlord from all the normal procedural safeguards which are also associated with natural justice. It says, the landlord shall carry out the review in such manner as it considers appropriate". That is the same style of drafting to which I have been referring all evening. It says in effect that the landlord may do whatever it likes. But one cannot do that at common law, even if one is permitted to do it by statute. So again it is something which invites the intervention of the courts.

As my noble friend Lady Hamwee pointed out, judicial review can only be concerned with the procedure of a decision. It is a great mistake to legislate in a way which substitutes a judicial review of the procedure for a judicial examination of the merits. That is why we would be so much better advised, as the noble Lord, Lord Swinfen, suggested, to have something which lays down guiding principles which local authorities shall observe rather than purporting to give them an absolute power to do what they like, which is something which, under common law, the courts will not leave to them, in spite of the statute. Therefore it will not achieve the effect it intends. It will bring the legislature and the judiciary into conflict and it will not work.

The noble Lord, Lord Swinfen, has gone most of the way to showing how it should be put right and I hope that the Government will listen to him.

Baroness Darcy (de Knayth)

I too support the amendment which will ensure that the review is independent and not carried out by the landlord. That seems to me to be essential if we are to protect the rights of tenants. It is essential that it should be unbiased, and visibly so.

I waited to hear the noble Earl explain his admirably worded amendment. I wondered whether it was the sort of thing one put into statute. However, I agree totally with what he said. I hope that the Minister will agree with the amendments and provide the necessary counterbalance to the strong powers the introductory tenancies give to the landlord. Originally I had intended to say that I hoped that he would accept the amendments or bring forward something of his own at Report. I am not sure that that is not Cloud-cuckoo-land, having heard his reply to the previous batch of amendments. However, I am ever optimistic and hope that he will at least give an encouraging reply.

Baroness Gardner of Parkes

I oppose these amendments. As I read this section of the Bill, I understand that it applies only to local housing authorities or a housing action trust. Therefore we are not talking of private landlords; we are talking about social housing. The setting up of an independent process would be a costly affair and may not work very well.

At the present time local authorities have methods of review for all sorts of things and they call upon serving councillors to sit on those committees. They try to detach themselves completely from any view and deal with the cases in an impartial way. That is very correct. In theory the suggestion of my noble friend Lord Swinfen sounds delightful that one might have people who are on local school boards or those who are helping in some other way in society such as local justices of the peace. That is all very well in theory, but in practice it would take a great deal to set up. It is extremely difficult now to get enough people to serve on school management committees and as JPs who are unpaid in this country. These people are already giving a tremendous amount of their time for nothing in order to help the community. It will be very difficult to get them to take on this added responsibility. It could so slow the process down or snarl it up that the whole purpose of the introductory tenancy could be lost. That is a point that we are overlooking.

One of the real arguments in favour of an introductory tenancy is that people will be more likely to get a tenancy of that type much earlier than they might otherwise because it is of an introductory nature and subject to review. I consider that the allocation of points, for example, might enable one to give an introductory tenancy at an earlier stage than a secure tenancy. If one is going to introduce tremendous disincentives and great bureaucracy and make it almost impossible for the local authority to operate the scheme in terms of cost and logistics, I do not believe that it will be wise to do so. For that reason I oppose the amendment.

Lord Swinfen

Before my noble friend sits down, perhaps I may say that I do not want to make everything costly. I appreciate the point that she made. I also appreciate that local authorities have set up reviews already, but do they set them up when they are either the plaintiff or the defendant in a case?

Baroness Gardner of Parkes

I am unable to answer that specifically. I believe that they do, but someone currently involved in local government might be able to give a more accurate answer.

Baroness Hamwee

I intended to raise a question on that very point. As regards school admissions there are appeals procedures. The local education authority will set up the procedure providing, according to my experience in my own authority, a panel to deal with the appeal. My question to the Minister is this: Is there any other situation where the statute calls for a review, using the term "review"? I share with other Members of the Committee a concern that this matter should be dealt with in a proper, quasi-judicial manner.

Earl Russell

I listened with care to the noble Baroness, Lady Gardner of Parkes. I take her point about the difficulty of getting people to go through this process. I cannot help feeling that that argument does not help the Bill. Unless we can get people to do the review work, who are independent of local authorities, the whole procedure of the introductory tenancy cannot work at all. That is a conclusion which the Government may wish to resist. The noble Baroness used at one point the phrase, "slow down or snarl up". In my experience it is much more often speed that snarls you up rather than slowness.

Lord Lucas

The noble Earl is quite correct in that we are here dealing with another part of the Bill where the backstop is judicial review. We have in place procedures which are intended to be quick and where those operating them are bound by statute to be reasonable. If they act in a way which is not reasonable the backstop to that is judicial review. We believe that in adopting that structure we have a combination of a quick process which in the vast majority, if not in all cases, is likely to be fair and effective with the power of the court to review that available as a backstop.

I begin by setting out the reasons why we prefer the system that we propose rather than that proposed in these amendments. Clause 115 gives an introductory tenant the right to request a review of the landlord's decision to seek possession. Amendment No. 260 would require this review to be independent. Amendment No. 261 is consequential. We cannot see the advantage of an independent review over an internal review by the landlord. The local authority or housing action trust will have been involved in the case from the beginning and will have access to all the information on which the decision was based. Moreover, an independent review would take longer because of lack of familiarity.

Let us consider the system as set out in the Bill. The tenant receives a notice to quit and has 14 days to exercise his right to ask the landlord to review his case. The landlord must complete the review and notify the tenant of the result by the earliest date on which proceedings against him could begin, which would be at least 28 days after serving the notice. There are good reasons for a prompt timetable. We fear that the inevitable consequence of an independent review would be to drag the whole affair out interminably. Introductory tenancies are intended to help landlords to deal promptly and effectively with tenants who prove to be troublemakers and make other tenants' lives a misery. Hence, quick but fair procedures are required. Landlords will want to have in place fair and rigorous procedures that enjoy the support of tenants. Guidance from the Department of the Environment will not dictate how a landlord should conduct such a review, but will point out the need for impartiality—for instance, officers involved with the eviction should not be involved in the review. We can see no advantage in an outside body reviewing the local authority's actions. The obvious alternative to the local authority itself conducting the review is for the courts to do so. I have already addressed that matter. We believe that it would slow down the process to the point where it had no advantage over the existing system.

Amendment No. 261A in the name of the noble Earl, Lord Russell, does not, as the noble Earl points out, belong in statute. That safeguard is there ultimately in judicial review. We rely on the availability of the courts through that process to ensure that, should there be an abuse of this system, it is properly corrected.

9.45 p.m.

Earl Russell

The Minister's last remark about reliance on judicial review is extremely interesting. It will not have escaped the Minister's attention that recently Ministers of the Crown in other departments have complained bitterly about the growth of judicial review; indeed, in one or two instances they have complained about the existence of the power itself. I cannot help feeling that that sits a little oddly with the Minister's frank admission that he is creating a power that leads people to exercise the power of judicial review. I was also a little taken aback by the Minister saying that he could not see the point of an independent review. He is flying in the face of one of the basic principles of English law for at least the past five centuries—that a person shall not be judge and party in his own cause.

Before we return to this matter at another stage, I ask the Minister to look at the debates on the Child Support Act 1991 when a procedure was introduced to allow another officer in the agency to conduct a review of a decision taken by the first officer. In particular, I ask him to look at the speeches made on that proposal by the noble and learned Lord, Lord Simon of Glaisdale. If he refers to those speeches he will appreciate the shock that some of the things he has said tonight may create in those who read them in the Inns of Court. This is a very unwise series of remarks, and I hope that the Government will think better of it.

Lord Lucas

I shall look at that precedent and others that I can find. With reference to the question posed by the noble Baroness, Lady Hamwee, I am sure that there are quite extensive review procedures in social security, although I am not familiar with them. Certainly, I am familiar with the schools procedures, some of which are not totally independent and involve appeals to a panel of governors who happen not to be the governors who took the first decision. There are precedents and parallels, perhaps, in previous practice, but given what has been said I shall certainly look carefully at those and, in particular, at the ones drawn to my attention by the noble Earl, Lord Russell.

Turning briefly back to the subject of judicial review and the comment by the noble Earl that reliance on judicial review is odd—not at all! Judicial review will be very much a backstop. We expect local authorities to act fairly in all matters concerned in introductory tenancies. Recourse to judicial review, we are confident, will be very unusual.

Lord Swinfen

At the beginning of his speech my noble friend said that the landlords have to act reasonably as laid out in the Bill, yet on my last group of amendments he resisted strongly my wish to put into the Bill that they should not act unreasonably. Where in the Bill do they have a duty to act reasonably?

Lord Lucas

It is not in the Bill; it is a basic duty.

Lord Swinfen

I am not very satisfied with my noble friend's response. The feeling I get from what other Members of the Committee have said is that a number of them are not satisfied either. We should not be relying solely on judicial review. There should be some form of independent review. In the long run it will be cheaper, appear to be a great deal fairer and, I suspect, more effective.

I also suspect that if we go down the route that we appear to be travelling at the moment according to the Bill, it will not be over-long before some tenant who is removed from his tenancy is funded by someone to take the matter to the European Court of Justice. I would suspect that the local authority, the housing authority, would lose in that court because there would not be effective justice given or certainly not seen to be given.

It is late and therefore I will not divide the Committee on this matter tonight, but I reserve my right to come back at a later stage. I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Baroness Hamwee moved Amendment No. 260A: Page 74, line 18, leave out ("a") and insert ("an independent").

The noble Baroness said: I beg leave to move Amendment No. 260A and speak to Amendments Nos. 262 and 262A, which are still concerned with the matter of review. The Minister said in that last exchange that the Government were relying on the remedy of judicial review but were certain that it would not often be required. There seems to be an inconsistency in that approach. However, as the noble Lord, Lord Swinfen, said, no doubt we will come back to this matter.

My first amendment proposes the addition of a sub-section requiring that a date before which the tenant is to be notified of the outcome of the review will be specified. Clause 115 assumes that the local authority has specified in the notice of proceedings a date before which the tenant will be notified of the outcome of the review, but none of the clauses actually requires the landlord to specify a date. If it did not specify a date it would be quite hard to apply Clause 115(4) in particular. I wonder whether the Minister can explain how that is to operate without the requirement that I am proposing.

Amendment No. 262 adds a requirement for written notice. My concern that notice should be written is greatly strengthened by the exchanges that we have had over the past hour or so. Whatever mechanism there is to be for review, unless reasons are given in writing it will be very hard to pursue the matter. I hope that the Government, if not agreeing to put this small amendment on the face of the Bill, can at least give some assurance as to the guidance that they will provide.

Finally, Amendment No. 262A proposes that a period of not less than 14 days be inserted into Clause 115(4) as the date to be specified which: shall be earlier than the date specified in the notice of proceedings as the date after which proceedings for the possession of the dwelling-house may be begun". In other words, a decent period of notice shall be given.

Perhaps I may, in a slightly unorthodox fashion, ask that my noble friend Lord Redesdale make an important announcement to the Committee when I have moved the amendment. I beg to move.

Lord Redesdale

I support my noble friend Lady Hamwee, and I must ask the Minister whether he is aware that England has beaten Holland four to one?

Lord Lucas

Among many other things, no, I was not aware of that. Unusually for this evening, I am delighted to find out.

Clause 115(4) already requires the review to have been carried out and the tenant notified of the outcome before the date specified in the notice of proceedings as the one after which proceedings can begin. There is no question, therefore, of a tenant being evicted before a review of his or her case has been carried out, or before the tenant has been informed of the result of that review. For that reason Amendment No. 260A is unnecessary.

Amendment No. 262A would require the tenant to be notified of the outcome of the review at least 14 days before the date after which possession proceedings may be begun. That too is unnecessary. The Bill already requires the local authority to complete the review and notify the tenant before proceedings may be begun. The requirement to have at least two weeks' grace between the outcome of the review and the beginning of possession proceedings will merely drag out the procedure, which would be of no benefit to either the local authority or the tenant. If the review reverses the decision to evict, all well and good for the tenant, but if it does not, the need for a prompt eviction remains. If we were to accept Amendment No. 262A, other tenants affected by the anti-social behaviour would have to ensure an unwarranted additional two weeks of aggravation.

Under Amendment No. 262 the noble Baroness wants the tenant to be told of the outcome of the review in writing. I believe that is too prescriptive. It will be sensible for local authorities to write and I believe in the vast majority of cases they will do so. That is normal good practice for local authorities dealing with eviction cases. However, if they choose some other method of communicating that is rightly a matter for them.

I have no illustrations to offer of how else they might convey the decision to evict. Perhaps a couple of heavies turning up and dumping the tenant over the balcony might suffice. However, they may do it, the legislation already requires them to notify the tenant, and that is the key point. With those words, I hope that the noble Baroness will be able to withdraw the amendment.

Earl Russell

The Minister suggests that allowing two weeks for the people to find somewhere else to live might drag out the proceedings. Might it not be preferable to drag out the proceedings rather than to drag out the tenants?

Lord Swinfen

I feel that the notice to tenants should be given in some way that they have a record of it. I agree that it is not always appropriate to do it in writing. It may be necessary to use an alphabet sign language for people who have profound hearing problems or a tape for those who have visual problems. There should be some record that they can have in front of them if they need it.

10.00 p.m.

Baroness Hollis of Heigham

I support that. I cannot believe that a local authority would not give notice in writing. It may be that the Government will cover this matter through a code of practice or guidance. However, if there is any doubt, it should be written onto the face of the Bill.

Lord Lucas

I shall certainly consider what has been said.

Baroness Hamwee

On the basis that it will be considered, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 261 to 262A not moved.]

Clause 115 agreed to.

Clause 116 agreed to.

Clause 117 [Persons qualified to succeed tenant]:

Earl Russell moved Amendment Nos. 262AA: Page 75, line 20, leave out ("resided") and insert ("been normally resident").

The noble Earl said: I hope that we can dispose of this briefly. In moving this amendment I should like to speak also to Amendment No. 262AB, which basically covers the same point.

This concerns the conditions for a successor tenant. The Bill states that a person is qualified to succeed the tenant if: he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months". It occurred to me that that may tend to rule out a child of the previous tenant who was, at the relevant time, a student. That is why I seek to insert the words "normally resident" and to substitute the word "during" for the words "throughout". It may be that my concerns are unnecessary and, if so, I should be happy to be told that. I beg to move.

Lord Lucas

I had not addressed myself to the particular concern raised by the noble Earl, Lord Russell. As a matter of general principle, if a particular place is a person's main residence, he is resident there despite the fact that he may be on holiday or away for short periods of time. Obviously that will depend on the exact circumstances.

However, as I said, I had not addressed myself to the question of whether a student away at university would or should qualify for those purposes. I hope that the noble Earl will allow me to write to him on that matter.

Earl Russell

That is precisely the reply for which I had hoped. I am aware of the point which the Minister made about main residence. In view of the way in which my children have been treated in relation to the electoral register, I am aware that people are in great confusion as to whether they normally reside with us or at their universities. That confusion has become much greater over the past five years.

I am merely concerned to suggest that succeeding one's parents in a tenancy is not improper. Therefore, I shall await with great interest the Minister's answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 262AB not moved.]

Clause 117 agreed to.

Clause 118 [Cases where the tenant is a successor]:

Baroness Hamwee moved Amendment No. 262B:

Page 75, line 33, leave out subsection (2) and insert— ("(2) A tenant to whom the tenancy was assigned in pursuance of a family order is a successor only if the tenant who assigned him the tenancy was a successor.").

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 263, 263ZA, 263ZAA, 263ZAB, 263ZAH, 263ZA 270C and 270D, and, for good measure, although it is not in the grouping, Amendment No. 276A.

The explanation is probably shorter than reading the list of amendments. They are designed to cover transfers of tenancies in all forms of matrimonial and family proceedings where the effect of the transfer is to assign the tenancy from one spouse or former spouse to another, or from a parent for the benefit of a child under the Children Act 1989, or from an estate.

These are drafting amendments intended to provide a comprehensive definition of "family order", although my noble friend suggests that once the Family Law Bill completes its passage there may need to be yet another revision of the matter. I beg to move.

Lord Lucas

These amendments seek to extend references to cover assignments made under other pieces of matrimonial and family legislation which Amendment No. 270C defines under the heading of "family order". I do not propose to dwell on the detail of these amendments now. Amendments with a similar intention but restricted to the Children Act 1989 were debated in another place. An undertaking was given to introduce amendments to this effect at a later stage. As we pointed out then, and as the amendment demonstrates, there are several complex pieces of legislation involved. We wish to ensure that each of these and the consequential effect on both this Bill and existing housing Acts is correctly reflected in any amendment which we bring forward. We will be tabling amendments on Report and in doing so we will reflect on the amendments. I hope that is sufficient reassurance for the noble Baroness to be able to withdraw her amendment.

Baroness Hamwee

Of course, I am perfectly happy to return to the matter at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 263 not moved.]

Clause 118 agreed to.

Clause 119 [Succession to introductory tenancy.]

[Amendment No. 263ZA not moved.]

Clause 119 agreed to.

Clause 120 [Assignment in general prohibited.]

[Amendment No. 263ZAA not moved.]

Clause 120 agreed to.

Clause 121 [Right to carry out repairs.]

On Question, Whether Clause 121 shall stand part of the Bill?

Earl Russell

I assure the Committee that my concern with this clause is only probing. I have no objection whatever to the carrying out of repairs. In fact, I am strongly in favour of it. My concern is with the effect of the one year introductory time limit on the carrying out of repairs. It is my experience—and it may be that of some others among Members of the Committee—that builders are occasionally dilatory. If we require people to conduct repairs, perhaps in the last three months of their tenancy, they will be conducting repairs which will be completed in time for the arrival of a new tenant. We may find people showing a little reluctance to repair a property at great expense in ways in which only their successor will benefit. There will be a good many technical problems in pro-rating the cost and, indeed, on occasion in dividing the responsibility which may exercise people quite considerably.

I put down the opposition to the clause in order to find out whether these problems have been foreseen. If they have been foreseen, I wonder whether there is any solution prepared for them, or whether the Government will suggest that it will all be all right on the night. Alternatively, I wonder whether they are going to take the line that this is all the responsibility of the local authorities and that somehow they are bound to solve it. I should like to think that there were some constructive ideas available on how this should be done.

What was once described by the former leader of another place as the process of osmosis, by which information reaches a Minister in this House, is occasionally rather slow in operation so one does have to exercise one's soul in patience. I wait with great interest to know what the Minister is going to say about this. I beg to move.

Lord Lucas

I hope I can give some rapid comfort to the noble Earl. On the first point—the effect of the one year period—we expect the vast majority of introductory tenants to go on to secure tenancies. Secondly, what we are dealing with in the right to repair, as at present envisaged, is concerned with things like blocked sinks, unsafe power or light fittings and toilets that do not flush—items that have to be repaired very quickly. The time-scale given for some of those is of the order of 24 hours and really quite short even in relation to an introductory tenancy.

Earl Russell

That is a reassuring reply but if the noble Lord has found that items that have to be repaired quickly are always repaired very quickly he has been luckier than I have, and I congratulate him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 121 agreed to.

Clauses 122 and 126 agreed to.

Schedule 12 agreed to.

Clause 127 [Index of defined expressions: introductory tenancies]:

[Amendment No. 263ZAB not moved.]

Clause 127 agreed to.

Clause 128 [Extension of ground of nuisance or annoyance to neighbours, &c.]:

Earl Russell moved Amendment No. 263ZABA: Page 79, line 13, leave out (or illegal").

The noble Earl said: I cannot help thinking of this amendment as zabaglione. It is only a probing amendment, as, indeed, is Amendment No. 263ZAGB which is grouped with it and to which I should also like to speak.

The amendments cover the phrase in paragraph (i) of the clause which refers to, using the dwelling-house or allowing it to be used for immoral or illegal purposes". I am sure that the Committee will take it for granted that I have no wish to encourage illegal purposes. However, I should like to know quite how widely the clause extends. Obviously, if the dwelling is used to organise a drug pushing racket, that will not do; similarly, if it is used by a den of thieves, that will not do. However, let us suppose that we are talking about the property of a journalist who happens to be unsuccessful in a libel case. I should have thought that such a situation would have been outside our intention as Parliament. However, I would welcome the Minister's reassurance that that sort of situation would not be covered under the clause as drafted. In the sure hope that I will receive that reassurance, I beg to move.

Lord Lucas

Clearly I share the noble Earl's opinion as regards the meaning of the word "illegal". However, rather than chancing my arm by offering a reassurance now at this stage, perhaps I may do so by letter. I do not expect that our answer will be otherwise—nor, indeed, that we would wish it to be otherwise—than the noble Earl supposes.

While I am on my feet, I should like to record the fact that I have been told by my Bill team that another place uses a different method of numbering amendments in Committee which is altogether easier to understand. I must say I find that very hard to believe.

Earl Russell

I share the Minister's scepticism and I welcome his answer, which is everything that I hoped to hear. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Baroness Hollis of Heigham moved Amendment No. 263ZAC:

Page 79, line 15, at end insert— (" When considering whether conduct is likely to cause a nuisance or annoyance under this Ground the court shall take into account evidence provided by the local authority that witnesses are or may he intimidated and possession may be granted notwithstanding that there is no direct evidence that any person has actually caused a nuisance or annoyance and that the only evidence available is from police officers or employees or agents of the authority.".").

The noble Baroness said: In moving the above amendment I shall, with the leave of the Committee given the time of night, group with it Amendments Nos. 263ZAD, 263ZAE, 263ZAF, the substantive Amendment No. 263ZAG, and No. 263ZAGA. I must say that it is somewhat difficult trying to recite those numbers. I should also like to notify the Committee of something which may be of interest. The amendment almost at the bottom of the groupings list, Amendment No. 263ZAGDA, has failed to get its number printed on the Marshalled List. However, I can assure your Lordships that it will actually be moved, even though it has become temporarily invisible.

The amendments raise the issue of grounds for possession not for those on introductory tenancies but for those on secure tenancies. Some of those arguments have already been rehearsed on introductory tenancies, but perhaps I may try a little bit of scene-setting before turning briefly to the original amendments.

One of the most troubling problems on local authority estates is anti-social behaviour which may be caused by problem neighbours when tenants act against other tenants, perhaps because teenage sons are out of control or perhaps even because daughters may be on the game, with customers lingering outside the dwelling. It can also be caused by thugs and hooligans coming into the estate from outside to peddle drugs, to pick a fight, to break a window or, indeed, to harass a particular family, especially if it belongs to an ethnic minority group or has a disabled member. The perpetrators of such problems may be under 18 and, therefore, the law can do little to control them, even though they may be the worst offenders. They make life intolerable for those living on such estates. We should not tolerate it.

At present, I believe that we would all accept—and certainly the Government do—that a local authority is poorly equipped by law to deal with such problems. As regards its own tenants, a local authority finds it difficult to regain possession of a property. Neighbours and witnesses are intimidated and threatened and are reluctant to give evidence. It takes a long time to bring a case to court—a minimum of 34 weeks, as far as we can tell, and it can be as long as two years—during which time the tenants have to endure continued nuisance and continued intimidation. When such a case finally does come to court, the courts do not always grant possession. In any case the local authority has power only as landlord over its own tenants. It has no powers to regulate the behaviour of thugs or hooligans coming in from outside the estate looking for trouble, and of course it cannot use an injunction on anyone under 18, and they are often in my experience the worst offenders.

We shall move a series of amendments which we hope the Government will seriously consider. I believe that the concerns are shared by noble Lords around the Chamber. I hope, if these amendments cannot be accepted, similar amendments will be supported by the Government, or perhaps even introduced by them at Report stage. The major amendment in this group seeks to give a local authority mandatory rights of possession in defined circumstances against the most severely anti-social tenants. There is an amendment to give victims and witnesses protection from threats and intimidation. Without such amendments, the more serious the violence, the less likely it is that it will come to court because of the fear felt by witnesses.

There is also an amendment to bring young people under the age of 18 within the law. They are often the main culprits. There are also some amendments to clarify Section 222 of the 1972 Local Government Act to make it clear that it can be used by the local authority to exclude non-residents from sections of its council estates; in other words, so that a local authority has a public order as well as a landlord power. Finally, there are amendments which provide for information to be shared with the police and to ensure that information does not fall foul of the Data Protection Act.

We believe that this package of amendments will transform the ability of local authorities to check criminal and serious anti-social behaviour on council estates. After all, council tenants, like everyone else in the country, are entitled to quiet enjoyment of their homes. Those of us who are fortunate enough to live in semi-detached or detached houses, or houses which were built long enough ago to have thick walls and enjoy reasonable sound proofing, or who have generous gardens, are not always aware of the nightmare that can arise when one shares a thin party wall with someone else.

The first amendments I wish to address seek to give the local authority mandatory grounds for possession against tenants guilty of serious anti-social behaviour. Since 1985 council tenants have enjoyed security of tenure. To get possession a local authority has to prove to the courts that one of 16 possible grounds for possession applies. The grounds range from anti-social behaviour of the tenant to regaining a house that is tied to a shop or a school, or perhaps because the property needs to be demolished for whatever reason. When dealing with anti-social behaviour as the ground for possession, a local authority has to show that there has been a breach of tenancy, nuisance or annoyance to neighbours or damage to property. I remember vividly having to seek possession against one tenant who burnt his floorboards to keep warm until he was restricted to a fairly narrow area of the house in which he could move around. In all possession cases local authorities must give four weeks' notice to tenants. Courts in all but a few cases have discretion to grant or refuse possession to the local authority. In all cases so far where possession is mandatory, the local authority is required to rehouse the family.

The second group of amendments to which I am speaking would do three things. First, they would allow a local authority to have a fast-track procedure for serious cases of anti-social behaviour. A serious case would involve violence, threats of violence, damage to property or drug dealing. In that situation the local authority could go to court without first serving four weeks' notice on the tenant. Why is that necessary? Let me give one example. One local authority served a notice in July, 1993, following complaints of harassment including fire bombing. Between October 1993 and October 1994 the defence failed to serve a certificate of readiness to proceed to trial despite several requests that it do so. The local authority had to request the court to proceed to trial and the case was eventually heard in February, 1995, 18 months after the fire bombing incident. In all that period the tenants who were the victims were living in real fear of what might next happen to them. Therefore the amendment would grant a fast track.

Secondly, the granting of possession would be mandatory if, but only if, the judge were satisfied that the new grounds for possession exist—that is, serious anti-social behaviour including violence, threats of violence or drug dealing. If the local authority cannot establish that such serious anti-social behaviour exists, the judge would not grant possession. But if the local authority has established it to the judge's satisfaction, then the judge must grant possession.

Again, why? Let me give another example. During 1994 one local authority received a litany of complaints against the 17 year-old son of a tenant, including excessive noise, chopping up the neighbours' fences, throwing bricks and scaffolding at windows, threatening neighbours with an air rifle which he occasionally fired off, directly threatening a disabled witness, and damaging the disabled witness's car to the extent of £2,000 worth of damage. In August 1995 an injunction gained no improvement in behaviour. At the possession hearing in December 1995, by which time he was over 18, the court would grant only a suspended possession order.

In another case the local authority detailed 110 cases of nuisance involving drunkenness, violence and excessive noise. When the case came to court the judge intervened after only one witness had been heard, even though many witnesses had summoned up the courage to bring evidence, and gave a suspended possession order. When that was breached, possession was finally secured in April, 1995, 15 months later. Through all that time the witnesses, including disabled witnesses, were harassed and threatened.

The second part of the amendment would establish that where serious anti-social behaviour had been established to the judge's satisfaction, mandatory possession would be granted. Thirdly, in these circumstances, the local authority would not be required to rehouse.

Such a group of amendments to some degree fetters judicial discretion. But the experience of local authorities represented by associations across the country suggests that when local authorities take possession proceedings in very serious circumstances—possession proceedings are relatively rare given the difficulties of obtaining evidence, of persuading witnesses to take the stand and of securing charges against those under 18—it is a matter of utter chance whether or not they gain possession, especially when the case depends on the willingness of neighbours who have been intimidated and threatened.

If neighbours know that following their evidence, and establishing that such violence has occurred—we are talking about virtually criminal violence—the local authority will be granted possession, they are more likely to give evidence. At present—I exaggerate not at all—the most serious offenders are never brought to court because neighbours are frightened to give evidence. Other noble Lords who have been councillors will know that time and again they have been given information but the people giving that information have begged to be kept anonymous because their house, windows, car or children would not be safe if their name were mentioned, if they were brought into the matter, or if they were asked to give evidence.

Finally, Amendment No. 263ZAC offers a protection for victims. I repeat that it is difficult for neighbours living in a nextdoor flat, or in the flat underneath or above, to give evidence against a threatening or violent neighbour knowing that it may take at least six months before the case is finally heard in court; and that even then the judge may not grant the local authority possession and they will have to continue to live with such violence and intimidation.

In some cases local authorities have tried to protect tenants by using professional witnesses, including their own rent officers, environmental health officers on grounds of noise, and the like. But some judges, I am sorry to say, have refused to accept their evidence and the cases have been dismissed.

I shall give another example. A local authority began to receive complaints of very loud music, shouting, swearing and the slamming and kicking of doors at all times of the night and day. The authority used its power under the Environmental Protection Act to seize equipment. The problems continued, but the neighbours were too frightened to give evidence. The noise was frequently witnessed by environmental health officers and the tenant was prosecuted again for contravening a noise abatement notice. However, the local authority was unable under the law to issue possession proceedings and evict the tenant in the absence of evidence from at least one resident witness. The resident witnesses were too terrified to give evidence. The professionals, such as environmental health officers, who could and would have given evidence were not permitted to do so.

Amendment No. 263ZAC allows grounds for possession to be sought where a person is guilty of serious misconduct causing, or likely to cause, a nuisance to people other than immediate neighbours. That would permit the use of evidence from other than resident neighbours.

It is clear that a judge will be able to give such evidence proper weight, knowing that it is not from a resident witness and not hearsay evidence but evidence from a professional witness. It would allow such cases to come to court and avoid neighbours, often frail, elderly and disabled, being afraid that such a case will never be pursued. The whole cluster of amendments leads to the ability of local authorities, with, I hope, the support of noble Lords on all sides of this Chamber, to begin to tackle effectively the problems of serious and severe anti-social behaviour within the framework of the law. I beg to move.

Lord Mottistone

I am very taken with the argument of the noble Baroness, Lady Hollis. I sympathise greatly with much of what she said. However, when she tabled her amendments they greatly alarmed the National Schizophrenia Fellowship, which advises me on these matters. When I entered the Chamber during the debate on Amendment No. 256, I was interested to hear the noble Baroness, Lady Hollis, among others, saying how important it was for severely mentally ill people not to be harmed by the measures under discussion.

Although I believe that something like the proposals in this group of amendments could usefully be included in the Bill, my fear is that severely mentally ill people need protection from them. The problem is that conduct likely to cause a nuisance or annoyance under the new Ground 17 to Schedule 2 to the Housing Act 1985 can result from severe mental illness as well as from drug taking or dealing. Court proceedings are sometimes initiated now under that type of ground against people suffering from schizophrenia who cause a nuisance when in a severe psychotic state; for example, by incessantly playing music at night. In such cases at present a court may order possession but is not required to do so.

Amendments Nos. 263ZAF and 263ZAG introduce draconian new powers which would mean that any tenant guilty of "serious anti-social behaviour" in the locality where he or she lives must be evicted. By virtue of Amendments Nos. 263ZAD and 263ZAE no notice would be required of that action.

Subsection (1B) of Amendment No. 263ZAE would turn the screw further by suggesting that if the court dismissed a claim for possession under the ground proposed in Amendments Nos. 263ZAF and 263ZAG it should consider making an order for possession under Grounds 1 to 4 of Schedule 2 to the 1985 Housing Act, and doing so without notice.

I and the NSF do not condone severe anti-social behaviour; nor do we wish to minimise the unpleasant repercussions for those at the receiving end. However, we think it important to emphasise that an illness like schizophrenia can cause someone to behave in a way which results in disturbance, damage to property and occasionally violence and that sometimes behaviour of the same or similar nature is repeated. Summary eviction of a person who is ill cannot be in his or her best interests.

The provisions of Parts II and III of Schedule 2 to the 1985 Act should apply. They empower a court to order possession if suitable alternative accommodation is available. That, of course, is what various noble Lords and the noble Baroness, Lady Hollis, were talking about earlier. But the noble Baroness has not put it in her amendments. That is where it needs to be. That accommodation might need to be provided by health or social services authorities rather than a housing authority or private landlord, as more intensive care and support could well be needed under the circumstances which I described.

I have some examples of the kinds of people about whom we are talking but I am sure the Committee is well aware of the kinds of people who can cause such trouble. I simply say that, if the Government are minded to pursue the line that the noble Baroness, Lady Hollis, invited us to follow, they should qualify it by including protection for the severely mentally ill, which is not provided in these amendments. It is an awful pity that it is not.

Earl Russell

When one proposes to this Chamber an amendment, one needs to try to show four things. One needs to show first, that there is a problem to be solved; secondly, that the amendment will purchase on that problem; thirdly, that the amendment will not accidentally purchase on all kinds of other problems on which it is not intended to purchase; and fourthly, that the cure is not worse than the disease.

I shall stipulate that the noble Baroness has abundantly proved the first of those points. She has proved that there is a problem. She is undoubtedly right about the right to quiet enjoyment of one's own property. That is vital to preservation of the peace. She is clearly right that that is now far too often under threat. She is clearly right that attempts to put it right sometimes lead to intimidation. So, if I may, I shall stipulate that she has established the existence of a problem.

I am not so certain about the other tests that the amendment has to pass. To some extent, the amendment purchases on the problem; but the point made by the noble Lord, Lord Mottistone, is well taken: there must be somewhere else for the people to go instead. In some cases, which may involve mental illness, we may have to say, not for the first time, that the policy of closure of long-stay mental hospitals can be overdone. But there are people—the noble Baroness has already drawn attention to them—who are simply anti-social or criminally disposed. Those people will go somewhere else. We shall have to pay attention to where else they will go and whether they may cause as much trouble all over again as where they went in the first place.

As to whether the amendment will purchase on other problems as well as the ones that it is designed to meet, when I look at the drafting I have some anxiety on that score. Let me take first Amendment No. 263ZAC. I entirely accept the problem to which that amendment is directed. Line 3 of the amendment brackets together the similar propositions that: witnesses are or may be intimidated". From a legal point of view those are two fundamentally different propositions. If it can be proved that the witnesses are being intimidated, that is a conspiracy to pervert the course of justice. It is also threatening behaviour. It is a crime in its own right, and I believe that the law has power to deal with it. But to say that witnesses "may be intimidated" is rather like my favourite crime story from my childhood of the people who were prosecuted for loitering with intent to press button B. There was no proof that any crime had ever been committed. I really could not accept a drafting which took witnesses being intimidated or "may be intimidated" as two interchangeable propositions.

In the later part of the amendment there seems to me to be a contradiction between the proposition that they can proceed if there is no direct evidence that any person has actually caused a nuisance and that the only evidence available is from police officers or employees. I am not particularly worried about who the evidence is from, but there must be evidence that a nuisance has been caused. If there is any doubt about whether an offence has been committed, then no proceedings should be taken. It is the old proposition of Perry Mason: the prosecution must first prove the corpus delicti.As this amendment stands, it does not prove the corpus delicti. That, I find, is something I really could not accept. "No notice" has been commented on. I say no more about it at present.

The noble Baroness herself touched upon the case for making orders mandatory under Amendment No. 263ZAG. I understand the point she makes, but she cannot have it both ways. Either she has to have the proceedings mandatory and then the grounds have to be made less all-inclusive because no discretion is allowed or, if she wants the ground spread wide, to cast her net wide to catch all the possible offences, then it cannot be mandatory.

Perhaps I may explain what I mean. Amendment No. 263ZAG, referring to "serious anti-social behaviour"—which is, incidentally, a term of sociology rather than of law—goes on to state in paragraph (b) that this shall include, any damage to property in the locality". I should declare an interest. When my son was under 10 years of age and fancied himself both as a cricketer and as a footballer he would, under this clause, have got me evicted from four consecutive properties and his grandparents from one. Any 10 year-old breaking a window would be covered by that clause. It is the effect of the amendment, and can only be the effect of the amendment, as I understand it, to have mandatory eviction every time that a 10 year-old breaks a window.

I know that there should be more school playgrounds; I have said so quite often—but to evict a family every time a 10 year-old breaks a window! That is what the amendment says and if the noble Baroness does not mean it I hope that she will come back with a better amendment at a later stage. The amendment is unacceptable and I am not convinced that it purchases effectively on the problem.

Also, as always, we cannot assume that if we intend a power to be used for a particular purpose it will never be used for any other. I remind the noble Baroness of what I said about an earlier amendment, that legislation is like using a shotgun with pellets going lots of places where they are not intended to go. I consider the effect of this amendment if it were to be applied in an American township where the Ku-Klux-Klan is powerful. It may be said that we do not have that here. I would be reluctant to legislate on the assumption that we never will. That is the way in which bad legislation is passed. This is the sort of use of powers under which one gets what is proverbially and, indeed, literally, known as a witch hunt.

When I was arguing with the right honourable friend of the noble Baroness, Mr. Straw, on "A Week at Westminster" a couple of weeks ago, he argued at some length that the powers he was proposing could not possibly be arbitrary because they were not being exercised from the top down but by the community. But Mill was quite right that the people may desire to oppress a part of their number.

Power exercised by the community, as anybody who has been run out of town in the United States knows painfully well, can be just as arbitrary as any power exercised by any despot of whom we have ever heard. There is a problem. We do not have a solution. I am perfectly happy to sit down round a table and try and work out what the solution may be; but I do not believe it to be this one.

Baroness Gardner of Parkes

I have great sympathy with these amendments. I do not intend to go into the semantics of the words or the details; I want to speak to the principle behind them.

It is essential to have a rapid and sure process of regaining possession. Points have been raised in this debate that the mandatory phrasing is too demanding. That could be qualified in such a way that it is mandatory "unless". It would be wise to make it clearer to the judiciary that the onus is on the giving of the order to grant the vacant tenancy rather than the other way round. Cases have been quoted, and I know of cases, where action was not taken and a lengthy slow process followed.

My noble friend Lord Mottistone mentioned the Schizophrenia Fellowship. I have a great respect for that organisation, which does a marvellous job. There must be ways of wording the process to protect such people. It may be—I refer the Committee to my Noise Bill which is passing through your Lordships' House at the moment—that it is not a question of who is creating the noise or intolerable conditions for the neighbour; it is a question of who is suffering the noise or nuisance. That is a sound principle to be followed in this case.

Today in your Lordships' House a member of the staff asked to have a word with me, being aware that the Housing Bill was before the Committee. The family are living in a block of flats where it is impossible to get any sleep because an anti-social family also live there. I said that they could complain and gave all sorts of advice about what they could do. They said that the trouble was that they would be much too frightened to do that—exactly the point being made. They said that no one in the block would be game or foolhardy enough to front up as a witness against those people because they know the retribution would be swift and unpleasant. I greatly respect the comments made by that person and that person was saying what so many other tenants would say. We have heard the story many times and it is therefore extremely important for there to be protection from intimidation.

I should like the Minister to comment on the position quoted by the noble Baroness, Lady Hollis, regarding the under-18s. I do not understand what remedy exists in that regard. Does Clause 128 mean that if the tenants are the parents of the under 18 year-old they are evicted because of the behaviour of the young person; or is the young person only asked to leave? What is the position? It seems very unsatisfactory if parents who in themselves are not unreasonable, but have no control over someone young who is living with them, can be evicted. I can see that problems will arise.

The noble Earl, Lord Russell, talked about people being run out of town. I recall reading in a newspaper a year or so ago about a family in a village. Everyone in the whole town was so fed up with the damage that they were causing and the robberies that they were carrying out that they were eventually moved out by the pressure of all their neighbours. That cannot be right. There should be a proper and legal process for doing that.

I do not say that I support these amendments in the way that they are worded—many faults have been pointed out—but I support the principles of a rapid and sure process of gaining possession and protection against intimidation. The objective giving of evidence which applies in the Noise Bill means that no witness would have to come to court. The evidence will be given by the officer who measures the noise. Equivalent processes must be available in the form of an environmental health inspector inspecting damage done to the property or something of that kind. It must be possible to have independent, authorised people able to give such evidence. That would be great protection for people against intimidation.

10.45 p.m.

Baroness Hamwee

When the noble Baroness considers the thrust of her amendment after tonight, I ask her to take two procedural but important points into account. The first is to allow the court to make a suspended order which will be effective if the tenant does not comply with provisions for good behaviour. We do not want to add to the problems of homelessness if other measures can assist. Secondly, there is the place of interlocutory injunctions. I am going the other way now. A court can move very quickly, if it wants to, in extreme circumstances. It is possible to order a tenant to leave pending the final hearing.

Lord Lucas

I, too, will read very carefully what the noble Baroness, Lady Hollis of Heigham, has had to say. I suspect that there are some points that she made in her opening speech which I shall fail to address. Perhaps that is because I found myself rather taken aback by the beginning of her speech, feeling that I was being outflanked on the right by the noble Baroness. After a while I realised that she was just being a great deal more authoritarian than I feel comfortable with and, as the noble Earl, Lord Russell, said, that is becoming quite a feature of new Labour in various pronouncements. It is something which shines out of Peter Mandelson's book as a key part of the party's vision of community. I do not believe that it is part of the noble Baroness's make-up to be that way. I hope that she will look carefully at the matter. It chimes so oddly with her great passion and the feeling that she has expressed so often on other subjects.

I turn to the subjects of these amendments. Clearly, we share the anxieties that she has expressed. But we believe that we have better solutions to them. I turn first to Amendment No. 263ZAC. Clause 128 amends Ground 2 of Schedule 2 to the Housing Act 1985. That schedule sets out the grounds for possession of dwellinghouses let under secure tenancies. The clause strengthens in several ways the existing ground for possession based on nuisance and annoyance to neighbours so that it applies to behaviour in the locality of the tenant's property. It covers behaviour by visitors to the property and the situation where the tenant, a person living with him or a visitor, has been convicted of an arrestable offence in the locality of the house or flat.

But the key part of the clause for the purposes of this amendment is that it will also make it possible for local authorities to evict a tenant for behaviour likely to cause a nuisance or annoyance, so that the victim of the behaviour may not have to give evidence. Instead, that might be provided by a professional witness or local authority officer.

We feel that Amendment No. 263ZAC is unnecessary, as Clause 128 achieves its intention to enable local authorities to seek eviction where victims do not feel safe to give evidence in court, by allowing evidence to be provided by the local authority or its agent, such as a professional witness.

On a related matter, the provisions of the Civil Evidence Act 1995 enable hearsay evidence to be admitted as evidence. The weight to be given to that evidence is for the courts to determine and will depend on the facts of each case. We do not feel at all comfortable with saying that that is something which should be automatically assumed to be reasonable. But the Act, which comes into force in the autumn, provides that in doing so one of the matters for consideration is whether it would be reasonable to call the witness. Clearly, the likelihood of intimidation of the witness would be relevant to that consideration.

I turn now to the large group of amendments to which the noble Baroness spoke. I thought that I heard her refer to Amendment No. 263ZAGDA, which is not grouped with these amendments. I now understand that she did not. That amendment is the subject of a separate note.

Clause 130 substitutes a new Section 83 of the Housing Act 1985 which deals with the notice of proceedings for possession. Most of the clause re-enacts existing legislation. The new provisions in the clause allow the landlord to start possession proceedings at an earlier stage than previously in cases related to anti-social behaviour and to dispense with the requirement to serve the notice in appropriate case.

The purpose of these amendments is to introduce a mandatory ground for possession in cases of serious anti-social behaviour. We do not believe that the loss of someone's home should be made mandatory. To do so would fetter the discretion of the judiciary and fail to take into account those cases, which might not be great in number, where there were mitigating circumstances. It is important to strike a balance between giving local authorities stronger powers and protecting the rights of tenants. Eviction is, after all, a serious business. We maintain that the package of measures in the Bill gets that balance right. Mandatory grounds would tip the balance against the tenant, unfairly in some cases.

The discretion that the court can exercise will relate largely to the circumstances of the household as a whole. This is important. In some cases the tenancy may not be held by the offender but his mother, for example. She may have no control over an adult son. This point was raised by my noble friend Lady Gardner. In such a case the court will wish to consider whether she should be evicted for the wrongdoing of someone else. Under the present proposal the court would have no option but to evict her. In other circumstances the wife of the offender may be the tenant and may be left with a young family to look after. There will always be case where it is essential that judicial discretion can be exercised; otherwise, the court will be forced to evict those who may have had no knowledge of the criminal activity because the offence is mandatory. I believe that my noble friend Lord Mottistone has underlined the need for the courts to be involved.

We recognise that many local authorities have difficult relations with the courts on these matters. We have published a booklet, Getting the Best out of the Courts, with a view to encouraging better contact between local authorities and the courts. We feel that perhaps there is fault on both sides in getting it right. After that paean of praise for the judicial process, I am sad to see the Judicial Benches empty this evening. It would have been a rare opportunity to see a smile on the faces of noble and learned Lords. On many occasions I have seen the opposite.

There are difficulties at a practical level with some of these amendments. Amendments Nos. 263ZAD and 263ZAE in particular give local authorities two bites at the cherry when seeking an eviction. We feel that cannot be fair. Where a local authority loses its case in court on one ground, surely it cannot be equitable for the court to be allowed to consider repossession on another ground which is so similar. Amendments Nos. 263ZAF and 263ZAG seem to us not to be even-handed. For example, any damage to property in the locality is defined as serious anti-social behaviour. Of course, mindless vandalism must be punished, but we feel that eviction for any damage goes too far.

As the noble Earl, Lord Russell, has said, a boy who plays football and breaks a window will fall foul of the clause. Under the proposal a family could be evicted because of that damage. The court could not take mitigating circumstances into account. There must be countless other examples of minor, possibly unintentional, damage that could lead to families losing their homes. That would not be fair to tenants. Our package of measures to deal with anti-social behaviour in the social rented sector is a strong one which is designed to cover all aspects of such behaviour. I believe that it goes as far as it should. I remain unconvinced of the need for mandatory grounds for possession.

I am aware that on occasions judges appear reluctant to grant possession orders, but I do not believe that the answer lies in cutting out the judiciary by giving mandatory grounds for possession; rather, it should be approached in other ways. One of these is the general raising of the profile of the issue, making judges aware of the deleterious effect that all anti-social behaviour can have on a community. More particularly, we are impressed by the work of the noble and learned Lord, Lord Woolf, as part of the Commission on Access to Justice, which recognises the unique nature of possession cases on the grounds of serious anti-social behaviour and the need to organise the civil justice system to deal with these matters as effectively as possible when they come before the courts. We expect to hear something from the noble and learned Lord on these subjects next month.

I hope, with the considerable comfort that I trust I have been able to give to the noble Baroness, that we are addressing the problems which she has identified in so far as we can without being unfair to tenants and that she will feel able to withdraw her amendments.

Baroness Hollis of Heigham

First, I should like to thank—I think—the noble Lords who took part in the debate. Perhaps I may try to respond to some of the individual points because the debate is central to this section of the Bill.

If I may first respond to the noble Lord, Lord Mottistone, I suspect that the gap between us is not very wide. I accept his reproof that there is not, in this amendment, a statutory duty to rehouse, and I will certainly look at it when we come back at report stage because I doubt whether we are in disagreement about this.

If somebody is, as he described in his National Schizophrenic Fellowship briefing, in a severe psychotic state, he believes that that should be a reason for not granting eviction. Again I think that that is the wrong way round. It may be a reason for seeking possession of that particular property which that tenant is inappropriately occupying because of the intolerable nuisance he is causing to his neighbours but—and I think this is where we would be on the same side—I would in no sense wish to remove from the local authority a continuing duty to be responsible for ensuring that that person has appropriate and secure accommodation perhaps in a sheltered environment.

As somebody who was responsible for building sheltered housing schemes for those with learning difficulties and those with mental health problems, I am well aware of some of the issues. So I suspect that the gap between us is not very wide. Perhaps inadequate drafting failed to pick up the point.

I have to say that we only realised the significance of the issue as a result of an earlier debate this evening, and, had that earlier debate, when we were exploring just this issue, come up on a previous day, we might have been able to amend the amendment. So I think we share a common position on this.

If I may comment on the remarks of the noble Earl, Lord Russell, he accepts that there is a problem. He worries first that those exhibiting such severe anti-social behaviour—and we are now talking not about those who have a mental health or physical health problem but about those who are simply bloody-minded, if I may use that phrase—who have severe anti-social behaviour will go elsewhere. Yes, I think that that is true by definition. They will go somewhere else.

I say again from my own experience that, particularly where there were dependent children, we were faced with a very real dilemma. You either moved them on knowing that the threshold of tolerance in the average street was about 18 months, after which you then moved them on again, each time interrupting the children's schooling and being extremely disruptive, or you took those children into care, which was even more disruptive for the family. What the "respectable" wanted was a ghetto of such problem-families: out of sight, out of mind, out of there and not here.

If you try to avoid that and integrate such families in the hope that at least the children will not inherit the behaviour patterns of their parents, you are asking other people to accept behaviour which imposes severe strain. We know that one or two such families can very quickly send a street into a declining spiral in the course of a year or two. It may take 10, 15 or 20 years to rebuild a degree of self-respect in that street. From my own experience, we have had to move tenants on every 18 months or so as other people's tolerance breaks down. It is a very difficult problem, but that is not to say that the street on which these families first descend should be asked to bear it for the sake of everyone else. We have to respond in other ways.

The second point the noble Earl made related to the words, witnesses "may be intimidated", as opposed to "been intimidated" and he was very unhappy about that as a basis for law. Perhaps he misunderstood—I am sure not wittingly—the thrust of the amendment. The concern was not for this amendment to seek to establish whether witnesses have or have not been intimidated. The concern was to establish the right of the courts to hear—in fact the requirement that the courts should hear—professional witnesses. And such professional witnesses are going to be people like the police, housing officers employed by the authority, and environmental health officers.

I do not know why any Member of the Committee should think that those busy, overworked, understaffed services would willingly waste their time hanging around and taking cases to court in a vexatious way. EHOs normally only turn out with their machines at one o'clock or two o'clock in the morning after there have been continual complaints or continual telephone calls to the police. Only then will they start to act. The problem is not that they will act in a vexatious or frivolous way, but how long it takes to collect and bring such evidence to court. It may take many months.

The noble Lord's criticism that witnesses may be intimidated, and that we must be sure that they have been intimidated, is irrelevant. The amendment seeks to establish that professional witnesses may be used where there may be a problem with resident witnesses. One may want professional and resident witnesses, but if resident witnesses cannot be called because the threat of intimidation is more severe, cases will collapse. The amendment will deal with that problem.

To believe that professional officers are going around trying to catch the unwary who are guilty of the most trivial of offences is not faintly to understand local government and the pressures on its staff.

11 p.m.

Earl Russell

Perhaps I may clarify what I was saying. I was by no means questioning the sincerity of witnesses, but sincerity is not necessarily synonymous with accuracy. There must be clear proof that an offence has been committed.

Baroness Hollis of Heigham

I should have thought that with evidence from the police, professionally trained EHOs and professionally trained housing officers in pursuance of the law, it is not just a question of sincerity, it is a question of their professional integrity. I am sorry, again, that I fail to understand the noble Earl's point on this. Such people will be producing evidence in a professional way through their professional training, and if they fail to do so they will be disciplined professionally.

I cannot believe that any judge would not listen to the evidence of such people and attach to it the weight that it properly deserves. I have to say from my experience that EHOs would not take a case to court unless there were several instances testified to by their environmental noise machines and all the rest.

The third point that the noble Earl made—it was a point made also, to my surprise, by the Minister—was that the net was cast too widely, and that under the amendments the child kicking around a ball that just happened to bang against someone's fence would be grounds for mandatory eviction. When I listen to those worst possible case scenarios, I sometimes wonder in what sort of a world we are living. There is a reference to serious anti-social behaviour. If the judge did not believe that the damage to property amounted to serious anti-social behaviour, the case would not be established and he would throw it out. It is as simple as that.

I do not understand the examples of kids and so forth. The noble Earl referred to the Ku Klux Klan and witch hunts. I am sure that he did not intend any insult to thousands and thousands of elected, serving, unpaid councillors, but they might take what he said as such.

The noble Earl is right—he is ferociously right—to protect the minority from the intimidation of the majority, but I am also worried about the intimidation of the majority by the minority. Perhaps I may remind the noble Earl that John Stuart Mill was equally good on that. The alternative is to send a street into decay.

I welcome the contribution of the noble Baroness, Lady Gardner of Parkes. The answers to the questions posed by the noble Baroness, Lady Hamwee, about a suspended order, are that she may well be right. We would all prefer to see a tenant remain rather than be evicted, and to transform his, her or their behaviour. Perhaps we should look at this further. I am anxious to ensure that we do not have the sort of delays of two years, two and a half years from incident to eviction, in the course of which tenants live in fear and intimidation. That is what I have sought to document.

I shall have to take advice in relation to interlocutory injunctions. My knowledge of that aspect of the law is not sufficiently secure to respond to that matter. However, my knowledge of the Government's existing social security measures is sufficiently secure to challenge the Minister on his reference to authoritarian policies. That is rather rich coming from a Minister and a Government who are introducing introductory tenancies, on which these Benches have very real reservations, which will remove all rights from tenants in the first year; who have introduced the jobseeker's allowance, including benefit penalties for breaking dress codes when you turn up for interviews, and benefit penalties for not looking sufficiently hard for work which is not there to find; who have introduced tough penalties, including top-slicing of 40 per cent. for a parent with care who is not prepared to name an absent parent to the CSA when she is in fear of violence. I find that accusation of authoritarianism quite extraordinary and of mind-baffling hypocrisy.

Or is it that the Government are willing to be authoritarian when on the side of the Treasury, but are indifferent and accuse others of being authoritarian when they are seeking to protect the right to quiet enjoyment of council tenants? Those people are infinitely more vulnerable to the problems of noise, nuisance and intimidation than is, I suspect, anyone in this room. We live in our comfortable houses with gardens and, in some cases, many broad acres and will never know what it is like to have a noisy neighbour.

It is a pity that more former councillors have not spoken in the debate. I realise that that is because of the lateness of the hour. I do not know whether the noble Baronesses, Lady Hamwee and Lady Gardner of Parkes, share my experience of local government, but when I was involved with housing issues, I spent my time chasing repairs and managing transfers. During the last few years, I spent most of my time seeking to manage the problem of anti-social behaviour and neighbour disputes.

These amendments may not be quite the right way in which to deal with the problem. Local authorities need to be able to manage their estates so as to secure for their tenants the quiet enjoyment of their property to which they have every right, just as Members of the Committee have. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 128 agreed to.

Clause 129 agreed to.

Clause 130 [Proceedings for possession or termination]:

[Amendment No. 263ZAD not moved.]

Baroness Hamwee moved Amendment No. 263ZADA: Page 79, line 36, leave out from ("section") to end of line 38.

The noble Baroness said: This amendment seeks to delete Section 83(1)(b) from the proposed new Section 83 of the Housing Act 1985; in other words, to ensure that a landlord of a secure tenancy serves a notice specifying grounds on which the court will be asked to make a possession order.

The insertion of a general power to waive the requirement of notice in all cases, not just nuisance cases, is new in relation to secure tenants. Notices are very important. The courts insist on them in many areas of life. For example, in employment matters, it is important to give warnings and notice to ensure that an employee whose job is in jeopardy is warned of the likely outcome of his continued conduct, if that is what is at issue. A notice is a warning shot across the bows. In any event, it seems to me to be fair that before the step is taken of seeking possession with the likely result, or at least possible result, of homelessness, the tenant should be given the opportunity to remedy the complaint.

One cannot know whether the courts would restrict to narrow circumstances the waiver of written notice, but it seems to me to be clear that there are great advantages in written notice, in that there should be far less room for confusion or dispute. I am concerned both about the erosion of existing rights and also about the practical implications. I beg to move.

Lord Lucas

Clause 130 re-enacts Section 83 of the Housing Act 1985 which provides for the proceedings for possession or termination of a secure tenancy. In doing so it makes some important amendments to help to speed up those processes. It is one of those amendments that would be deleted by Amendment No. 263ZADA tabled in the name of the noble Baroness, Lady Hamwee.

One of the concerns that local authorities have brought to the attention of the Government during the discussion which we have been having about how to tackle anti-social behaviour has been the length of time that the possession procedures take. Eviction is often very much a matter of last resort after all other remedies, such as mediation or an injunction, have failed. By the time the local authority seeks a possession order the level of nuisance or annoyance to the neighbours, or even the whole estate, is clearly way beyond an acceptable level. Therefore, the possession order needs to be obtained quickly so that the neighbourhood does not continue to suffer, and so that those who have come forward as witnesses are not deterred because of the length of the procedures.

In such serious cases we considered that it would be useful for local authorities to be able to ask the court whether they could dispense with the issuing of the notice of possession proceedings. Where such a notice is issued a local authority cannot normally start the possession proceedings for at least 28 days. There could, therefore, be a considerable saving of time. Our view that this was a useful proposal was reinforced by the fact that a similar provision already exists for assured tenancies, the regime applied generally to housing association tenants.

Nevertheless, the discretion to dispense with the notice remains with the court which must be satisfied that it is just and equitable to do so. It seems unlikely that the courts would agree to do so unless the case before them was of a very serious nature, and some of these do involve extreme physical violence and abuse. I believe, therefore, that tenants have nothing to fear from the provision. Indeed, the great majority of tenants have something to gain if it helps rid estates quickly of the very worst offenders.

Baroness Hamwee

There seem to be some inconsistencies in comments made in response to earlier parts of this evening's debate. I am not convinced by that answer, but I think that if the court considers that the situation is serious then it is a matter, is it not, for an interlocutory order rather than for moving straight to a position where I believe that the tenant might be prejudiced? It is perhaps a little late to pursue those detailed procedural points at this time of night, but, as I say, I remain unconvinced as to whether this is the right way to proceed. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 263ZAE to 263ZAGA not moved.]

Clause 131 [Extension of ground of nuisance or annoyance to adjoining occupiers &c.]:

[Amendment No. 263ZAGB not moved.]

Clause 131 agreed to.

Clauses 132 to 140 agreed to.

Baroness Hamwee moved Amendment No. 263ZAGC: After Clause 140, insert the following new clause—

cc296-9
1. WITNESS PROTECTION ORDER 1,626 words
cc299-302
2. YOUNG PERSONS: BREACH OF WITNESS PROTECTION ORDER 1,443 words
cc302-5
3. RESTRAINING ORDER 1,616 words
cc305-8
4. DATA PROTECTION: CRIMP AND TAXATION 755 words