HL Deb 16 September 2004 vol 664 cc1373-429

(1) The appropriate national authority must make arrangements for securing that one or more tenancy deposit schemes are available for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies.

(2) For the purposes of this Chapter a "tenancy deposit scheme" is a scheme which—

  1. (a) is made for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies and facilitating the resolution of disputes arising in connection with such deposits, and
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  3. (b) complies with the requirements of Schedule (Provisions relating to tenancy deposit schemes).

(3) Arrangements under subsection (1) must be arrangements made with any body or person under which the body or person ("the scheme administrator") undertakes to establish and maintain a tenancy deposit scheme of a description specified in the arrangements.

(4) The appropriate national authority may—

  1. (a) give financial assistance to the scheme administrator;
  2. (b) make payments to the scheme administrator (otherwise than as financial assistance) in pursuance of arrangements under subsection (1).

(5) The appropriate national authority may, in such manner and on such terms as it thinks fit, guarantee the discharge of any financial obligation incurred by the scheme administrator in connection with arrangements under subsection (1).

(6) Arrangements under subsection (1) must require the scheme administrator to give the appropriate national authority, in such manner and at such times as it may specify, such information and facilities for obtaining information as it may specify.

(7) The appropriate national authority may make regulations conferring or imposing—

  1. (a) on scheme administrators, or
  2. (b) on scheme administrators of any description specified in the regulations,
such powers or duties in connection with arrangements under subsection (1) as are so specified.

(8) In this Chapter— authorised", in relation to a tenancy deposit scheme, means that the scheme is in force in accordance with arrangements under subsection (1); custodial scheme" and "insurance scheme" have the meaning given by paragraph 1(2) and (3) of Schedule (Provisions relating to tenancy deposit schemes); shorthold tenancy" means an assured shorthold tenancy within the meaning of Chapter 2 of Part 1 of the Housing Act 1988 (c. 50); tenancy deposit", in relation to a shorthold tenancy, means any money intended to be held (by the landlord or otherwise) as security for—

  1. (a) the performance of any obligations of the tenant, or
  2. (b) the discharge of any liability of his, arising under or in connection with the tenancy.

(9) In this Chapter—

  1. (a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies, and
  2. (b) references to a tenancy deposit being held in accordance with a scheme include, in the case of a custodial scheme, references to an amount representing the deposit being held in accordance with the scheme."

The noble Lord said: It gives me considerable pleasure to move the amendment. For many years, one of the things that I, as chair of a housing committee and leader of a council in an area where about a fifth of the local population lived in private rented accommodation, thought was most iniquitous was the deposits that tenants paid and their frequent failure to be able to recover them at the end of their tenancy. It was nothing short of a national scandal.

The new clauses proposed by Amendments Nos. 222A, 222B, 222C, 222D and the new Schedule proposed in Amendment No. 230B provide for the introduction of tenancy deposit schemes. Such schemes should protect deposit moneys paid by tenants to landlords or their agents. Tenants pay deposits in good faith, expecting that they will be returned at the end of the tenancy provided the tenant leaves the property in much the same condition as they found it, subject of course to "wear and tear".

Landlords value deposits as a guarantee that their tenants will meet these obligations and be committed to safeguarding their property. A deposit provides some cover against the costs of damage caused by tenants, whether deliberate or accidental.

For the majority of tenancies, landlords repay deposits in good faith and without undue deductions. Most landlords are keen to foster good relationships with their tenants. If tenants treat their rented property appropriately, such landlords will, at the end of the tenancy, repay the deposits without a fuss. In most instances where a tenant has caused damage to the property or broken some other obligation, both parties should be able to agree amicably on the landlord retaining part of the deposit to cover repairs or other expenses and on returning the remainder to the tenant. However, government statistics have shown that, in a significant minority of cases of around 20 per cent, tenants who had a tenancy ending in the previous three years felt that their landlord had unreasonably retained all or part of their deposit. Unfortunately, there are some landlords who make it a practice of always withholding their tenants' deposits.

A consequence of the actions of this minority of bad landlords is that they stigmatise the whole of the private rented sector, with all landlords being regarded as money-grabbing shady characters waiting to rip off innocent tenants. As a result, many decent landlords find that their tenants default on their last month's rent in the expectation that their deposit will not be returned to them. I am afraid that, although the majority of landlords may consider that they are doing the right thing, the high turnover in the private rented sector—over 40 per cent per annum—means that a large proportion of tenants can easily experience bad practice.

The better landlords and agents see a need to tackle the abuse of tenancy deposits. They participated in the pilot voluntary tenancy deposit scheme that was set up by the Government and run by the Independent Housing Ombudsman from March 2002 to March 2004. In May this year, the Association of Residential Letting Agents (ARLA) set up an independent tenancy deposit scheme for its members, based on the pilot.

The take-up for the pilot tenancy deposit scheme was disappointingly low, indicating the need for legislation to ensure complete coverage of all deposits taken in the private rented sector. The problems faced by tenants in getting their deposits back have been highlighted by organisations such as Shelter and the National Association of Citizens Advice Bureaux, and in the responses which we received to our consultation paper Tenancy Money: Probity and Protection, which we issued in November 2002.

In that consultation, we looked at a range of options for safeguarding deposits, both legislative and non-legislative. We considered purely voluntary schemes set up and run by industry. Such schemes would be likely to be non-custodial and would need some insurance cover to provide an assurance that they could meet their liabilities if the landlord or agent defaulted. The landlord or agent would retain the deposit and any failure on their part to repay it to the tenant would be covered by the scheme's reserves and insurance guarantees.

That option was the one that was most favoured by landlords and agents. However, we concluded on the low take-up of the pilot that such schemes would be likely to attract only the decent landlords or agents who already engaged in good practice and not the rogue element that we are seeking to capture.

We also considered establishing a single government-sponsored custodial scheme, where landlords and agents would transfer deposits into a specified account operated by the scheme. This option was most favoured by tenants and their representative organisations.

However, there is much to be said for encouraging an innovative approach based on more than one scheme. Certainly, there is a good case for making use of the professional knowledge and expertise that industry bodies have by allowing some scope for that to be used in establishing tenancy deposit protection.

We finally considered a hybrid of the two options, whereby the Government would procure a custodial scheme, to meet any gaps in schemes proposed by the industry, and industry bodies would also have the opportunity to come forward with their own schemes which, providing they met certain minimum standards, would receive government approval. However, we wish to ensure that any organisation chosen to run a tenancy deposit scheme is chosen on the basis of a fair selection process and that no particular organisation is given an unfair financial and competitive edge. Therefore, we have decided against setting up two different systems to select scheme administrators.

The proposed clauses give the appropriate national authority the flexibility to make arrangements with either private organisations or public bodies to administer such schemes. However, the Secretary of State's intention in relation to England is to open up the opportunity to set up and run both custodial and insurance-based schemes to all private organisations, rather than just industry bodies.

We will still be looking for a range of schemes, but by choosing schemes as a result of competitive tendering processes, the Government can thoroughly examine the merits of each proposed scheme against certain set criteria. That should lead to a higher quality of scheme being procured. We would expect, and indeed welcome, bids for the tender from organisations currently running voluntary schemes.

The new clause proposed in Amendment No. 222A places a duty on the appropriate national authority—the Secretary of State in England and the National Assembly for Wales—to ensure that at least one tenancy deposit scheme is set up. The main purposes of a tenancy deposit scheme will be to safeguard tenancy deposits paid in connection with an assured shorthold tenancy and to facilitate the resolution of disputes arising in connection with the deposits.

We intend for the national authority to be able to enter into contractual arrangements with private organisations to set up and run such schemes on its behalf. Through the contractual relationship, government will be able to review the administration of schemes, monitor the accounts and provide other information to ensure that schemes continue to offer value for money. Such schemes are expected to be self-financing, although the authority may be able to contribute to start-up costs if it feels that that is necessary.

The new clause proposed in Amendment No. 222B provides that no landlord can take a deposit—which can only be money—unless it is safeguarded by a scheme. That will offer maximum protection to tenants and puts the onus on the landlord to ensure that if they wish to take a deposit, the deposit must be safeguarded by an authorised scheme. This reassurance should also reduce the likelihood of tenants withholding their last month's rent in anticipation of not getting their deposit returned.

A landlord will have to tell their tenant which scheme their deposit is being held under and details of the relevant legislation under which the deposit will be protected. The tenant will then be able to check with the scheme that that is the case.

The new clause proposed in Amendment No. 222C deals with the court proceedings for tenancy deposits. Where a landlord fails to tell the tenant which scheme their deposit is held under, or the tenant is unable to obtain confirmation from a scheme that the deposit is safeguarded, the tenant will be able to get an order for the landlord to appear in court and account for that. If the landlord does not turn up in court or does not give enough evidence to satisfy the court, the court can require, at its discretion, for the deposit to be returned to the tenant or transfer it to an authorised custodial scheme. That must be done within 14 days.

The new clause proposed in Amendment No. 222D describes the civil sanctions that landlords will face for non-compliance with the provisions set out in Amendment No. 222B. Where a landlord does not hold a deposit in accordance with a scheme or fails to tell the tenant which scheme it is held under, he will not be able to serve the usual two months' notice to the tenant to regain possession of the property. As well as that, where a court has ordered the return of the deposit to the tenant in accordance with the proposed new clause in Amendment No. 222C and that has not been undertaken, the tenant will then be owed an amount equal to three times the deposit amount. Such procedural and financial penalties should make landlords think twice about trying to operate outside the new scheme.

All schemes must comply with the provisions of the proposed new schedule set out in Amendment No. 230B. All schemes must ensure that the correct amount of deposit is returned to the relevant party within 10 days of the landlord and tenant agreeing how much the tenant is to receive, or within 10 days of the scheme being notified of a court decision.

All schemes must respond as soon as practicable to any request from a tenant to confirm that the scheme is safeguarding their deposit. Perhaps, most importantly, all schemes must also ensure that they offer some form of alternative dispute-resolution mechanisms, so that disagreements over deposits can be resolved without the unnecessary expense of going to court. Such mechanisms will be able to provide a cheaper, quicker alternative to the courts. However, they cannot displace the courts and both parties have the option of taking the matter to court either in the first instance, or if they are unhappy with any decision reached by alternative resolution.

Amendment No. 242ZA amends Clause 213 to specify the parliamentary procedure applicable to orders or regulations made by the Secretary of Slate. Amendments Nos. 254 and 256 amend Clause 231, which deals with commencement and extent. These provisions are to come into force in relation to Wales by order of the National Assembly for Wales and in relation to England by order of the Secretary of State. I beg to move.

Lord Hanningfield

We have tabled Amendment No. 238N in this group which we will not move. Perhaps I may make some general comments on the amendment that the Minister has just moved.

Obviously, we support this scheme in general. Like other parts of the Bill in the past few days there has been much information about it, and the noble Lord has just given much more information which we need to digest and think about. The explanations he gave about the scheme and the way in which it might be operated need some analysis before we can make much comment.

Much of my original notes are now totally irrelevant since we had the statement from the Minister. However, the schedule does seem to deal mainly with two situations. It seems to protect mainly tenants and their deposit. I did not pick up in the Minister's explanation of what happens when tenants are in arrears with their rent. Can that deposit then be used to offset part of the rent? That was one of my concerns.

There is another problem when tenants have left, cannot be traced and the arrears might be more than the deposit. There are several solutions that one could examine. Although we support the thrust of the amendment, has there been enough consultation with both sides of the industry—landlords and tenants? The Minister's comments that the proposal is to go out to tender for a scheme, if I am correct, were interesting. That would seem a novel departure and something that I would probably support. If one is going out to tender, there needs to be careful thought over what the tender is for. We need more detail about that.

These schemes will cost money, like everything else in the Bill. We do not know exactly where that will come from. I shall not say much more today. I wish to examine this matter in considerable detail, and, like many other issues, we shall have a more detailed discussion on Report, when we have analysed what the Minister has said.

Baroness Maddock

I very much welcome these new clauses. As the noble Lord, Lord Hanningfield, said, it is difficult for us, in that we have not had time to examine this matter in much detail. I have one or two questions. This is an issue that has been around for a long time and we are all delighted. These Benches have campaigned on it for a number of years. I can remember present members of the Government pushing for this in the 1996 Housing Bill when the Conservatives were in control. We are now in 2004 and I am just beginning to think that perhaps when we get to the next housing Bill most of the matters that we discussed in 1996 will have been enacted. It has taken a long time. I appreciate that it is not an easy issue, but it was on 19 May—I remember that clearly, because it was my birthday—that the Minister in another place, Keith Hill, announced that the Government would be introducing these amendments. It is disappointing that we are not in a position to be able to flesh this out more in Committee because of the lateness of attempting to put them on the statute book.

3.15 p.m.

Much of the detail will be left to schedules and some of the questions will still be unanswered. I hope that the Minister will assure us that there will be full consultation with all the interested parties, not just the industry, over how the secondary legislation will be developed and how the schemes will be set out. The Minister will know that Shelter and the Citizens Advice Bureaux have been campaigning with us for many years. One area that concerned them was the dispute resolution function which the Minister has just explained. Everyone is very pleased that that has been included.

There are some concerns regarding non-compliance by landlords. It depends how the schemes work. If the landlord pays a deposit into the scheme but does not comply by returning it if tenants are being evicted, then there is something that can be used against the landlord—they would forgo the automatic Section 21 grounds for possession. But if tenants leave and find that the landlord has not paid the deposit into the scheme, they will not be in a better position than they were originally. That is an area that we shall explore further on Report. In the mean time, perhaps the Minister will explain how that would work.

Some proposals have been put to me regarding how the matter could be dealt with. Perhaps tenants should always pay the deposits into the scheme themselves. There has been a suggestion that where tenants find that the landlord has not paid the deposit into the scheme, then the tenants could withhold their rent. The Government would probably not wish to permit that because encouraging people to withhold rents is not generally a good idea.

One or two other queries have been raised with me by the British Property Federation in connection with the Law Commission's proposals on tenancy reform.

Originally, that was to be considered with the reform of tenancy legislation and there is still a situation where landlords are not necessarily required to provide a written agreement. How will that play with the Government's proposals? Regarding the insurance schemes that the Minister mentioned, many people feel that the bureaucracy surrounding the regulation of those by the Financial Services Authority means that people might not be keen to come forward with those schemes.

As the noble Lord, Lord Hanningfield, said, it has been tricky for us to get to grips with the amendments in a few days and I am sure that we shall return to the issue on Report. If the Minister cannot answer my questions today, perhaps he can help us out between the two stages.

Baroness Gardner of Parkes

I am pleased to be able to speak on this matter and I declare an interest as a small landlord for more than 40 years. This is an important issue. I am familiar with the New South Wales system in Australia, whereby all deposits are held centrally. The system works well and there is no problem with it. There are already many agents that operate good, sound deposit schemes; at the end of a tenancy the funds are not released to either party until there is agreement between the parties.

However, I do understand what the Minister said about bad landlords. That is what this is all about. There are bad landlords. I can tell you that there are pretty bad tenants, too. About 30 years ago I once did not take a deposit from a very charming young man who told me that he and his friends were working on an oil rig in the North Sea and they just wanted to have a break for a month or so to occupy a little place that was a subsidiary part of my own home—but detached, so I could not hear any noise. I was fool enough to fall for that. The people moved in. When they left, it turned out that they had been a pop group, high on drugs. They had smashed the chairs into 27 pieces, they had ripped all the lights out of the walls, and they had vomited all over every bit of towel or linen in the place—the bin was full of them. Whatever deposit we had, we could not possibly have made good the damage that they did. That taught me that one should always have some sort of deposit for default and dilapidation. This is the problem.

The Minister said that tenants default in paying their last rent because they are concerned that their deposit will not be returned. I wonder whether that is not a chicken and egg situation—they know that it will not be returned because of what they have done to the place. They default and they know that the landlord is left with nothing, because if they do not pay the last rent, he or she does not have a penny to come back. As the noble Lord, Lord Hanningfield said, it is difficult to get hold of anyone once they have gone. If they want to vanish they can vanish very easily. There may be cause why some tenants do that.

I am told by reliable estate agents that more than 10 per cent of shorthold tenants now fail to pay the last month's rent. For that reason, I believe that if this deposit scheme is set up, which is a good thing because it will cover the bad landlords, there should be the option of demanding up to six weeks' rent as a deposit. It would be by agreement between the landlord and the tenant. If it was up to six weeks, then even if they failed to pay the last month the landlord would have at least two weeks' rent, which would go some little way to making up whatever damage they have done. The tenants should not be worried about losing their money, because under this system, it would be secure. But it is quite right that deposits should apply to unpaid rent at the end, as to anything else.

There have been voluntary schemes in operation and there has been limited take-up, but I am told that those schemes that have been operating have worked quite well. The Minister said that he had considered using more than one scheme. I am not really in favour of that—I think that it is confusing for tenants. It is better to have one scheme, whatever that one scheme is.

People asked how the tenant would know whether or not the landlord had deposited the money. There is a simple answer to that. When I was on the GLC housing committee, whenever we went out to visit tenants they would say that they had reported problems with their flats three weeks or six months ago and the council would always say that it had had no report. I introduced a system whereby the day the tenants reported their problems they got a little voucher showing that they had reported something wrong on that date. Originally there was great officer objection to that, because they did not want it to be possible to prove that they had done nothing over months. However, they operated it in a pilot scheme and it worked so well that it was introduced universally.

The way for the tenant to be sure that the deposit has been paid is for him to have a copy of the deposit slip. Provided that he is well enough informed to know that such a thing exists and that he is entitled to it—it would be up to the Government and the citizens advice bureaux to see that that happened—no one would be more interested in having that proof positive that the landlord had made the deposit than the tenant himself. That is the way around that one.

The custodial or insurance-based scheme is very complicated and we certainly need to give a lot of thought to how it works. It is important to have it work one way or the other. Small agents, who are often very good with lettings, tell me that if there will be big costs involved, they would have to become members of something in order to be able to pay in these tenants' deposits. That could be a great worry to them, because they do not have a big enough profit margin to continue in business and they would be done out of things by big agents who had big overheads but also big money coming in. That is another important thing.

As the Minister would know, there is already an exclusion of unreasonable clauses in tenancy agreements, so no one could write into their tenancy agreements something that would counter any reasonable decision made about deposits. There is protection for tenants in that, too.

The Minister referred to non-compliance, which is covered in Amendment No. 222D. He said that the tenant will be owed three times the deposit if the landlord is at fault. That sounds fine, but if the landlord does not get their rent, will they be allowed twice what they have missed out on? It would be wrong to have a huge penalty one way without some sort of counterbalance the other way. Above all, we want to retain a good system whereby landlords and tenants both benefit from the letting and occupation of a property.

The use of independent inventory clerks for check-in and check-out is important. Although the costs have to be shared on these things, each party then has a good, sound basis. Even in Australia, under the New South Wales system, there has to be a full inspection and any faults in the property noted at the time that the tenant moved in, so that no one can claim that they happened during the tenancy.

This an interesting subject and it is good that it has come forward, but there are lots of issues to discuss, such as that of the untraceable tenant mentioned by the noble Lord, Lord Hanningfield, and the dispute resolution mentioned by the noble Baroness, Lady Maddock, which also works well in Australia. I hope that we will get more detail.

Finally, the amendment refers to a schedule dealing with the provisions relating to tenancy deposit schemes, and I wonder if the Minister could say which schedule that is or whether it is a schedule that is not yet visible.

Lord Best

I spoke on this issue at Second Reading, and I congratulate the Government on bringing forward these provisions—they are pleasing to see. I would like to pay tribute to the outside agencies that did all the hard work in the background—the CAB, in particular Liz Phelps, who put a lot of work into bringing forward these ideas, Shelter and the Brent Private Tenants Rights Group.

Before putting the final touches to this, because there is some detail left to deal with, will the Minister convene one or two meetings with those people who have done so much work on it? We need to look carefully at the pilot scheme that this has been based on, and bring in the British Property Federation and others, just to make sure that at the last stages we get the final touches right. I congratulate the Government on bringing forward this important extra part of the Bill.

Lord Lucas

I have a number of detailed questions to ask, but first of all I wanted to suggest to the Minister that he and his team might look at eBay for some lessons to be learnt in relation to this scheme. I do not know if the Minister is a regular trader on eBay, but if he is he will know that the way in which one assesses the wisdom or otherwise of trading with a particular person is their record, which is available on eBay, of completed purchases or sales. Every time a person purchases or sells something on eBay, they give feedback as to whether they have been paid properly, and the person who has bought reports whether the goods have been received in good condition and promptly. That way a person builds up a record.

Now, it seems to me that we could do something similar here—we could build up a record for landlords and tenants. A person could look at their landlord, and say, "This landlord regularly repays deposits properly, and things are settled sweetly; he is a good guy to be with". Alternatively, the landlord could look at a tenant and say, "This tenant has a string of black marks, I am not at all sure that I want him". It is an enormous incentive to behave properly. Of course someone could avoid it by changing their name or changing their description, but then they have no record, and, after a while, a landlord with no record is going to be someone whom a tenant will treat cautiously.

The system works on eBay. It works astonishingly well—there is a very large business being built on the back of that one idea. I think it would fit very nicely with the scheme and I welcome the scheme as a whole. Can I just ask a few questions about it? What is the Government's initial impression as to the cost of this? How much will a landlord have to pay per tenancy for the deposit scheme—what is it likely to cost?

What are the reasons for not making dispute resolution compulsory or at least making it possible for dispute resolution to be binding, if that is what the particular scheme decides it should be? Obviously, there is an appeal for the court beyond that, but commonly in, say, the building industry, these dispute resolution procedures have a strong binding element and appeals are only possible on limited grounds.

I remember taking that particular scheme through this House. It seems to me that that tends to reduce the problems, particularly when dealing with a difficult landlord or a difficult tenant. The matter can be put into dispute resolution and that is quicker, easier and much more informal than any process held in the courts—particularly if it is a tenant dealing with a difficult landlord. How much will it cost that tenant to go through the court proceedings that will be necessary in order to get back his deposit? In terms of both effort and money, what does it cost?

Lastly, it does not seem to me that there are sufficient penalties for a landlord who does not pay the deposit over to the scheme. Someone has to go to court to force him to do so. He has 14 days in which to act. Ultimately, it has cost him nothing; he has just been able to hang on to the deposit for a while and, if the tenant has been active enough to make him pay over the deposit, he will probably have had it for three or four months. So far as I can see, no extra cost penalty is incurred by having failed to pay it over.

Surely there should be an automatic penalty for not paying over the deposit, which acts as a substantial disincentive to ever doing such a thing. A 100 per cent fine would not seem out of place so that you could be sure that landlords who did this would feel the pain of it and not only when they failed to behave at the end of the 14-day period. But obviously, along with my noble friend and others, I wait for a later stage to look into this matter in greater detail.

3.30 p.m.

Lord Bassam of Brighton

First, I thank all noble Lords who contributed to the discussion. It lasted longer than I would have expected, although that is probably quite reasonable under the circumstances. A fair amount of information was given from our side of the Dispatch Box on disclosing how the scheme is to work. I thought that we would have more questions on it. I am grateful for the questions that were raised and for the useful contributions. I shall try to deal with them in turn.

The noble Lord, Lord Hanningfield, was concerned about the costs of the scheme. The noble Lord, Lord Lucas, asked how much it would cost per tenant. I cannot give the noble Lord, Lord Lucas, an answer; we do not have an estimate. But, in essence, the scheme should be self-financing, as I said earlier when moving the amendment.

It was also suggested by the noble Lord, Lord Best, that perhaps we needed to finesse some of the detail. I join the noble Lord in paying tribute to the voluntary organisations—in particular, Shelter and NACAB—and the local authorities, which have been very helpful in putting together this set of propositions. Their experience has been valuable.

We have consulted fairly thoroughly. As I said earlier, we have drawn on two useful pilots, and we consulted on tenancy deposits between November 2002 and February 2003. That was a very useful exercise. We published a full response to the consultation paper, which is available on our departmental website.

I was asked whether tenancy deposits can be used to offset rent arrears. That makes a great deal of sense. If a tenancy agreement states that, then of course the deposit can be used to offset arrears of rent. I am sure that that will become well established practice.

The noble Baroness, Lady Gardner, asked whether landlords will have to become members in order to use a tenancy deposit scheme. The answer is: no. The custodial scheme at least will be open to anyone without membership. We think that insurance-based schemes are more likely to be used by larger-scale landlords, and I am sure that there will be a benefit in that. We believe that the schemes should be accessible and that the system that we are likely to see adopted will enable that to happen.

The noble Baroness also asked whether landlords can demand a six-week deposit. There is nothing to stop landlords and tenants agreeing to six-week deposits in terms of these provisions. That should be helpful to landlords who want to ensure—

Baroness Gardner of Parkes

I want to correct one point to which the noble Lord replied. My question was not whether landlords had to become members; I was referring to small agents.

Lord Bassam of Brighton

The same response applies. The noble Baroness also asked why there was more than one scheme. Landlords have indicated that they are in favour of insurance-based rather than custodial schemes as they can use the deposits as part of their working capital. The clauses allow for the appointment of a public body to administer one custodial scheme, should there be a problem with multiple schemes.

The noble Lord, Lord Lucas, made an interesting suggestion concerning the use of eBay. My children use eBay and are fascinated by it. I know that we have thought of buying items through eBay and it is a very useful facility. My only thought in response to that is: who would validate the information and how would that work? But it is an interesting thought and certainly one on which we shall reflect.

The noble Lord also asked why we should not make dispute resolution binding. I suspect that ultimately the court process will have to be used because that will probably give some finality and closure to an extended dispute. But I think that there is value in dispute resolution, and certainly the scheme as I described it this afternoon should provide for the opportunity of dispute resolution as a low-cost alternative to going to court. In the end, it may well be the case that, where parties cannot agree, the courts have to become involved.

I shall give a little more detail on costs. The custodial scheme will be funded from interest on deposits. There will be no extra cost to landlord or tenant. Insurance-based schemes are likely to charge landlords fees—the trade-off for landlords keeping deposits—but there will be no charges to tenants.

I think that I have covered most of the points. There was one question of fact relating to Schedule 8, to which I referred when speaking to Amendment No. 230B.

Baroness Maddock

Before the Minister sits down, the noble Lord, Lord Best, and I both asked about further consultation with the bodies that have been involved. The noble Lord explained what consultation had been carried out thus far. However, in relation to one or two of the technicalities concerning how the scheme works, it seems clear to me that it would still be worth continuing with those consultations between now and the next stage.

Lord Bassam of Brighton

We shall obviously continue the consultations. I have given as much detail as I can this afternoon. I appreciate that there will be requests for more information. Of course, we need to work very closely with all parties that have an interest in this matter to ensure that the scheme works most effectively.

Baroness Gardner of Parkes

I want to return to the self-financing aspect. I find it a little unrealistic to think that the custodial scheme will be fully financed from interest. All of us who have any money that earns interest find that, even with the present rate, it amounts to nothing. Therefore, I want to go into that a little more or ask the Minister to look into it before the next stage of the Bill. He was not a Member of your Lordships' House when we dealt with a leasehold Bill.

At that time, we had a Conservative government and it was stated that the scheme would be self-financing. I asked the then government to explain exactly what that meant. There were many different grounds on which one could apply to have one's lease extended. The reply was that the self-financing aspect would cover everything, even down to the milk for the office cat. That remark caused a sensation in your Lordships' House. Everyone was very worried about it and eventually a ceiling was put on what a private applicant to the leasehold tribunal could be asked to pay, no matter how long the proceedings lasted. Before that, there was a risk that a very rich landlord would drag out the process in order to prevent the leaseholder getting what he wanted.

Therefore, if this scheme is to be self-financing, there should be a clear-cut measure so that people know what is involved. I think that it is a little on the doubtful side to assume that the scheme will be financed by interest.

Lord Bassam of Brighton

That is a fair point. The noble Baroness is right, I was not a Member of the House during those Conservative days. I could make a cheap jibe about Conservative promises, but that would be unfair of me. Perhaps we should return with some illustrative figures at the next stage which may help to provide a measure of reassurance. I too would be interested in them.

Lord Lucas

I was the Minister at the time who made that remark. I can tell my noble friend that I was extremely glad that she fought on that and eventually won. We had been hobbled by the Treasury into saying that the matter would be self-financing. It was her and her colleagues' efforts that enabled us to achieve what we wanted in our discussions with the Treasury. I am sure that subterfuge is not unknown to the Benches opposite. It gave pleasure at the time anyway. Thank you.

I would appreciate the Minister writing to me on three matters. First, he said he did not have an estimate of the cost of the scheme, but he has run two pilots so he must have some idea. Perhaps he can let me know roughly where we are on that.

Secondly, the Minister's ministry runs a dispute resolution scheme in the construction sector which was put in place when I occupied his position. That has a strong element of binding about it. Will the Minister talk to colleagues involved in that and write to me saying why, in this case, binding is not appropriate? It was a fairly fractious sector and disputes were common and protracted. It appeared that binding was appropriate in those cases and I would very much like to know why we are not following that precedent now. There may be good reasons, but I would like an explanation.

Finally, he did not answer my question about why there is no real penalty on a landlord who does not pay over the deposit straightaway. Why, when one has taken a landlord through the courts, does he not simply have to do what he should have done in the first place without paying a penalty for having misbehaved?

Lord Bassam of Brighton

I apologise to the noble Lord for that last point. I had made a note of the question. It is probably best if I write to the noble Lord on all three points. The second point about binding is a valuable one. We may be able to draw on the earlier experience of the noble Lord. I said to the noble Baroness, Lady Gardner, that we would try to return with some illustrative costs to help all concerned. I shall put that in correspondence, which will be shared with all noble Lords who have participated in the debate.

Lord Lester of Herne Hill

On the matter of binding, will the Minister and his officials look at the recent judgment of the Court of Appeal explaining why alternative dispute resolution procedures cannot easily be treated as binding without being inimical to the purpose of the scheme itself? I believe that needs to be looked at too.

Lord Bassam of Brighton

I am happy to give that commitment.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 222B to 222D:

After Clause 186, insert the following new clause—


(1) Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.

(2) No person may require the payment of a tenancy deposit in connection with a shorthold tenancy which is not to be subject to the requirement in subsection (1).

(3) No person may, in connection with a shorthold tenancy, require a deposit which consists of property other than money.

(4) In subsection (3) "deposit" means a transfer of property intended to be held (by the landlord or otherwise) as security for—

  1. (a) the performance of any obligations of the tenant, or
  2. (b) the discharge of any liability of his,
arising under or in connection with the tenancy.

(5) Subsections (1) to (4) apply despite any agreement to the contrary.

(6) If a tenancy deposit is required in connection with a shorthold tenancy, the landlord must give the person by whom the deposit is to be payable such information about—

  1. (a) the authorised scheme which is to apply to the deposit, and
  2. (b) the operation of provisions of this Chapter in relation to the deposit,
as may be prescribed.

The information must be given in such manner, and by such time, as may be prescribed.

(7) In subsection (6) "prescribed" means prescribed by an order made by the appropriate national authority."

After Clause 186, insert the following new clause"—


(1) Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant may make an application under subsection (2) if—

  1. (a) section (Requirements relating to tenancy deposits)(6) has not been complied with in relation to the deposit, or
  2. (b) the tenant has been notified that a particular authorised scheme is to apply to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with that scheme.

(2) An application under this subsection is an application to a county court for an order requiring the landlord to attend the court to give evidence showing that the deposit is for the time being held in accordance with an authorised scheme.

(3) Subsection (4) applies if the court makes such an order and—

  1. (a) the person ordered to attend the court fails to attend, or
  2. (b) the court is not satisfied that the deposit is being held in accordance with an authorised scheme.

(4) The court must, as it thinks fit, either—

  1. (a) order the person who appears to the court to be holding the deposit to repay it to the tenant, or
  2. (b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,
within the period of 14 days beginning with the date of the making of the order.

(5) Where any deposit given in connection with a shorthold tenancy could not be lawfully required as a result of section (Requirements relating to tenancy deposits)(3), the property in question is recoverable from the person holding it by the person by whom it was given as a deposit.

(6) In subsection (5) "deposit" has the meaning given by section (Requirements relating to tenancy deposits)(4)."

After Clause 186, insert the following new clause—


(1) If a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as the deposit is held in accordance with an authorised scheme.

(2) If section (Requirements relating to tenancy deposits)(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as that provision is complied with.

(3) If any order made under section (Proceedings relating to tenancy deposits)(4)(a) or (b) is not complied with by the person holding the deposit, that person is liable, as from the end of the period of 14 days mentioned in that subsection, to pay to the tenant a sum of money equal to three times the amount that was required to be repaid or paid by virtue of the order.

(4) That sum is recoverable by the tenant as a debt due to him from that person.

(5) If any deposit given in connection with a shorthold tenancy could not be lawfully required as a result of section (Requirements relating to tenancy deposits)(3), no section 21 notice may be given in relation to the tenancy until such time as the property in question is returned to the person by whom it was given as a deposit.

(6) In subsection (5) "deposit" has the meaning given by section (Requirements relating to tenancy deposits)(4).

(7) In this section a "section 21 notice" means a notice under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy)."

On Question, amendments agreed to.

3.45 p.m.

Lord Avebury moved Amendment No. 223:

After Clause 186, insert the following new clause—


(1) It shall be the duty of every local authority, being a district council, the council of a metropolitan district or London borough, or unitary authority, to exercise their powers under section 24 of the Caravan Sites and Control of Development Act 1960 (c. 62) (power of local authorities to provide sites for caravans) so far as may be necessary to provide, or to facilitate the provision of, adequate and suitable accommodation to meet the needs of Gypsies and Travellers residing in or resorting to their area.

(2) Where it appears to a local authority that any other authority could, by taking any specified action, help in the discharge of their duty under subsection (1), they may request the help of that other authority specifying the action in question.

(3) An authority whose help is so requested under subsection (2) shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.

(4) The Secretary of State may, if at any time it appears to him to be necessary to do so, give directions to any local authority to which subsection (1) applies requiring them to provide, or facilitate the provision of, pursuant to subsection (1), such sites or additional sites, for the accommodation of such numbers of caravans, as may be specified in the directions; and any such directions shall be enforceable, on the application of the Secretary of State, by mandatory order.

(5) In subsection (1) "accommodation" includes temporary stopping places as well as permanent accommodation, and in subsection (3) "other authority" means any local authority, including a county council, district council, the council of a metropolitan district or London borough or unitary authority.

(6) Section 24 of the Caravan Sites and Control of Development Act 1960 is amended as follows.

(7) In subsection (2)(c), for "gipsies" substitute "Gypsies and Travellers".

(8) In subsection (8) for "gipsies" substitute the following definition— Gypsies and Travellers" is defined as follows— Gypsies" means Romany Gypsies; Travellers" means—

  1. (a) Irish Travellers,
  2. (b) members of ethnic groups for whom living in a caravan is part of their traditional way of life, or
  3. (c) persons of nomadic habit of life, whatever their race or origin.""

The noble Lord said: This amendment is not about the restoration of a statutory duty, as in the Caravan Sites Act 1968, where local authorities were obliged to provide accommodation for all Gypsies residing or resorting to their area, but simply seeks to provide that they exercise their powers under the 1960 Act so far as may be necessary to provide the sites themselves or to facilitate the provision of adequate and suitable accommodation for the needs of Gypsies and Travellers. I shall explain that this is not nearly as onerous a duty as it was in the 1968 Act.

The Government have wisely decided that the accommodation needs of Gypsies should be dealt with from 2005 onwards as part of the process of housing needs assessment, as Keith Hill told the ODPM Select Committee on 13 July. Therefore, it is useful to see how planning and housing policies for Gypsies will fit together. The assessments by local housing authorities, which have to be conducted in accordance with the methodology that is laid down in the revised ODPM guidance now being developed by the University of Cambridge, and quality assured by the regional housing boards, will be aggregated into the regional spatial strategy and that will indicate the number of pitches required over a five-year period in the area of each authority. So under this framework we can assume that there will be sufficient land specified in local development documents to meet the accommodation needs of Gypsies and Travellers.

For the first time, presumably, we shall know something about the transfers of Gypsy and Traveller families into and out of settled accommodation because that will be an obvious part of the needs assessment. In many of these debates, there is an unspoken assumption that Gypsies are permanently immured on their caravan sites, but the reality is that a large number of Gypsy families already live in housing and there is some movement in both directions.

For the past five years, ever since Chris Mullin was the responsible Minister at the DETR, I have tried to persuade the Government to get local authorities to record such movements. We need to know more about the preferences of these communities and to offer them the same variety of choices, including ordinary housing and group housing, pioneered in the Republic of Ireland but ignored by the ODPM, as are available to people who live in settled accommodation.

The majority of Gypsies and Travellers would like to continue living a traditional way of life, although about 80 per cent of them want to stay on one site, either out of choice or necessity. As there is a shortage of some 4,000 pitches in England, a family that gains a pitch on a permanent site tends to stick to it, even if their inclination is still to travel.

The question is who will develop the sites that are needed. It was clear from the replies given by Mr Hill in evidence to the ODPM Select Committee on 13 July that he was thinking that the vast majority of travellers would provide their own sites and that registered social landlords would come in only as an afterthought. He said that placing a duty on local authorities, would put Gypsies and Travellers arguably in an advantageous position by comparison with other local residents with housing needs … the introduction of the duty does not really sit comfortably with our policy of expanding areas of choice, discretion and decision making amongst local authorities".

There is plenty of evidence to show that Gypsies want to develop their own sites in the form of the increasing number of planning applications and appeals by people from the Gypsy community. In the year to 31 March 2004, Gypsies lodged 118 appeals against refusal of planning permissions of which they won 49. However, many of those were for temporary permissions, according to Dr Donald Kenrick, to whom I am indebted for the figures and with whose work I believe the department is familiar. I believe that it has been acknowledged that he is the foremost expert on the matter in the country. Dr Kenrick points out that if private sites were gained at the rate experienced in 2003, it would take 27 years for enough to be provided to those living on unauthorised sites and that is without making any allowance for new household formations in the Gypsy community.

Most of the refusals were because the land is in unsuitable locations, such as green belt, as was shown in "Tonight with Trevor McDonald", the week before last. That programme also demonstrated that the applicants have no choice. There is a long queue for places on even the most appalling public sites—under motorways or next to sewage farms—and the alternative is a periodic struggle against the bailiffs and the police. There are few willing sellers of land. However, if vendors could have obtained planning permission for some more profitable form of development, they would not have sold the land to Gypsies.

The transactions tend to reflect that lack of apparent development potential. When the new planning system is in force, and land is designated as suitable for a Gypsy site, presumably its value will be that much greater and correspondingly fewer Gypsies will have the resources to buy the land. I put that point in a letter to the noble Lord, Lord Rooker, on 20 July, but I gather that the letter went astray. I have only recently re-sent it, so I am not blaming him for not having yet replied. The matter needs careful consideration.

Gypsies may be able to get planning consent more readily under the new regime, but will probably have to pay a lot more for it; indeed, some will be priced out of the market. The Minister may say that is no different from the situation of low-income house dwellers who cannot afford to buy their own properties, but in their case there are other options available: privately rented accommodation, or housing provided by registered social landlords. Neither of those agencies will deal with Gypsies.

The Novas Ouvertures group would like to develop sites and group housing and may well make some contribution; however, there are no other RSLs queuing up to offer their services, and no private landlords on the horizon either. That is why, for low-income families—hundreds of them now statutorily homeless—the duty of local authorities to provide or facilitate embodied in this amendment is so essential.

The Minister said, in his reply to question 321 in the ODPM Select Committee, that the amendment would have "significant spending implications". However, if he is right in thinking that nearly all Gypsies would prefer to own their own site, and they have the money and they can get planning permission, the demand for new pitches on local authority sites would be modest. Last January, there were 3,700 caravans on unauthorised sites. If only 10 per cent of them cannot afford to buy land and develop it as a site of their own, the local authorities would only need to provide 20 new sites in the whole of England, the cost of which might possibly amount to 0.1 per cent of the ODPM's budget, even if all the sites were provided in one year. Against that could be set the considerable cost of evictions, which would then be a thing of the past. It took 40 bailiffs from Gypsy and squatter eviction specialists Constant and Co. to evict Gypsies from the Bulkington site in Warwickshire in June, at an estimated cost of £ 150,000, one of a number of evictions on a similar scale so far this year.

If there is to be no duty to provide, how does the ODPM expect local authorities to meet their obligations to Gypsies under the Homelessness Act 2002? As the noble Lord knows, a Gypsy family is homeless under the Housing Act 1996 if their caravan is on an unauthorised site and there is nowhere they are entitled to put it. The Homelessness Act 2002 requires local authorities to ensure that sufficient accommodation is available for people who may become homeless in their area. If, as the courts have decided, Gypsies with a cultural aversion to bricks and mortar cannot be put into bed and breakfasts would they not have to commission more sites in order to comply with the law?

I realise that all those matters will become clearer when the ODPM publishes the outcome of its review that has been going on since early this year, and that the noble Lord may not be in a position to say much this afternoon. We are told that that outcome is not likely to appear before mid-October—in fact, roughly at the same time as the Select Committee on the ODPM publishes its own report.

Another matter of great importance arises out of discussion in the ODPM Select Committee in the consultations the ODPM has undertaken: the question of the definition of "Gypsies and Travellers" that has to be drafted to replace the existing one in the Caravan Sites and Control of Development Act 1960. There, Gypsies—then spelt "gipsies", with a small "g"—were defined as persons of nomadic habit of life, whatever their race or origin". That, however, urgently needs to be updated.

First, as already noted, most Gypsies and Travellers are no longer nomadic. Secondly, the courts have decided, in the case of Berry, that a person who gives up travelling, for whatever reason, ceases to be a Gypsy. If that were to be applied strictly, any family allocated a pitch on a local authority Gypsy site would cease to be entitled to live there if it were known that they had decided to stay there permanently. The same would apply to an Irish Traveller in a similar position.

Gypsies and Irish Travellers are minorities, recognised as such for the purposes of race relations registration. Their separate needs for health and education services, for example, as well as for accommodation, have to be dealt with so as to secure their equality with other sections of the community under the Race Relations (Amendment) Act 2000. The Court of Appeal's decision in the Berry case has to be corrected while the opportunity is before the House.

We therefore define "Gypsies" in the new clause by their ethnicity, making no distinction between those who still keep to their ancient way of life and those who decide to settle down permanently, whether on a site or in bricks and mortar. Travellers can be either Irish Travellers, to whom the same reasoning applies, members of other ethnic groups for whom living in a caravan is part of their traditional way of life, or, as before, persons of a nomadic habit of life.

The definition would not increase the number of families wishing to live on Gypsy caravan sites. We believe there are very few families now settled in housing who would seek to revert to living in caravans if that were made easier for them than at present, and they would be counterbalanced by an equal number of families moving in the opposite direction. If more Gypsies living in houses did want to move on to the sites, and vice versa, that much housing would be released for the benefit of other applicants. I know the ODPM's concern with a statutory duty is mainly on the grounds of cost, and I hope these arguments will help to alleviate that anxiety.

I welcome the review of Gypsy policy that has been conducted by the ODPM, including the consultations at a number of seminars in the spring. I attended one in Derbyshire, and I think the ODPM found it useful as a means of exploring the main issues and ascertaining the latest views of stakeholders. In addition, I had a meeting with Yvette Cooper, the then Minister, at the beginning of March, and I am sure your Lordships would like to join me in sending our best wishes to Ms Cooper on the recent birth of her daughter, which has meant that her duties have been taken over for the time being by Mr Keith Hill.

I sent a 3,000-word memorandum to Ms Cooper, a couple of days after I met her in March, covering the main points raised, as well as supplementary letters on 6 and 27 March, covering the problems of definition that I have just discussed, and reviewing the Wrexham and Basildon cases. At that time, it was expected that the outcome of the review would be published in July, as Ms Cooper herself had said tentatively at the launch of the IPPR paper on Gypsy policy in January. However, the date has slipped for the second time, now that Keith Hill has appeared before the Select Committee.

I understand that the ODPM may not want to risk criticism by publishing the outcome of its review before the Select Committee reports in mid-October, but, like everybody else who has looked at the subject recently, the ODPM Select Committee is almost certain to recommend the restoration of a statutory duty in some form. As that is the policy of not only the Select Committee but also of the National Farmers Union, the Local Government Association and the other authorities who have looked into the matter, I hope at least we shall have some encouragement from the Minister this afternoon that the statutory duty in the form outlined in this proposed new clause will be restored. I beg to move.

Lord Lester of Herne Hill

It is a privilege to take part in this debate led by my noble friend Lord Avebury. If he will allow me to say so, I regard him as the best champion of human rights in the House, certainly on these Benches. I remember, ever since I have been here, the way in which he has taken up this important cause again and again on behalf of one of the most vulnerable and persecuted minorities in Europe. I should declare an interest, because I chaired the European Roma Rights Centre in Budapest for five years, and am also a member of the Joint Committee on Human Rights.

I want to concentrate on one thing in support of this amendment: the need to give effect to the important judgment of the European Court of Human Rights in the case of Connors and the United Kingdom—

4 p.m.

Lord Avebury

My noble friend is speaking on the subject of the next amendment, on which I had asked for a separate debate. Although the two amendments were grouped together originally, I thought that the Connors judgment was sufficiently important to be dealt with separately from the issue of site provision.

Lord Lester of Herne Hill

I apologise: I thought that the amendments had been grouped together.

The Lord Bishop of Newcastle

I, too, support the amendment. Over the years we have failed, centrally and locally, to provide for the accommodation needs of the Gypsy and Traveller communities. As we know, this has led to such problems as the illegal development of sites and unauthorised encampments. It has had a negative effect on many settled residential communities, leading to had community relations, hostility and local conflict. Consequently, it has also become increasingly difficult for Travellers to gain access to the most basic services, particularly health and education. However, I have been impressed by recent initiatives taken by the Department for Education and Skills in the education of Travellers' children.

The amendment asks the Government to consider the accommodation needs of the Gypsy and Traveller community. To my mind, it offers the best way to do it: to lay a duty on local authorities. The provision of adequate sites—public and private, residential and transit—would address a number of the main problems. It would address the acute shortage of sites and would bring to an end illegal developments, unauthorised encampments and much local frustration, conflict and hostility.

The concerns of settled communities, represented by local councils, parish councils, residents' associations and the like, in which those new sites are to be located, must be considered to allay the obvious fears and anxieties. But to accept the amendment would significantly raise the level of social inclusion of Travellers, and I suggest that such positive action is well overdue. Only such provision will eliminate the need for unauthorised sites and will go a considerable way to enabling settled residential communities and Travellers and Gypsies to live side by side in harmony with each other.

We need to find a solution that will benefit Travellers and local residential communities. We need to give Travellers proper sites, with the same status as housing, so that they can be assessed and developed in the same way. Could we not allow Housing Corporation money to be used to help local authorities to provide and facilitate such sites? We can no longer live in the fond hope that somehow a magical solution to this difficult problem will be found. We need a satisfactory solution for the benefit of Travellers and local residential communities, and I believe that this amendment does just that.

Lord Graham of Edmonton

I support the aims and objectives of the amendment. Having served as the leader of a council and as a Member of Parliament dealing with constituency problems, I am not unaware of the delicacy and intricacies involved in this matter. I shall listen carefully to the Minister's response.

Will the Minister tell us precisely why the law was changed to lift the obligation? That is the kernel of the problem. I am under no illusion, and nor will the Minister and his advisers be, that the problem will not be solved overnight or easily. The resources of every local authority are probably under strain, yet we will be asking them to find a site or sites adequate to provide for Travellers. It will not be easy, but we must start somewhere.

The Minister may tell us that discussions and negotiations are ongoing. The Traveller community is entitled to have its problem dealt with, not once and for all, but so that it is appreciated that they are regarded as a distinct segment of the community. At the same time, the opportunity will be given to remind the Traveller community that they have responsibilities and are obligated to act as normal citizens provided that they are treated as such.

If this amendment and the series of amendments related to it do not start the debate, I hope that they will result in continued discussion of this vexed issue. From a local council perspective, the phrase "Not in my back yard" comes readily to mind. Most people will want a resolution of the problem, so goodwill and diplomacy will be required from all stakeholders. I hope that the Minister can help us.

Baroness Whitaker

I, too, would like to add my support to the amendments, which stand also in my name, and to convey the regrets of my noble friend Lady Dean and the noble Lord, Lord Ouseley, who, because of the rescheduling of the Bill, were unable to come, as they had hoped, to speak to it.

We all felt that Gypsies and Travellers are in a uniquely disadvantaged position in lawfully finding somewhere suitable to their needs to live. It is no surprise that there is a general acknowledgement, not least by the Government, that changes need to be made.

Lord Lucas

I add my support to the amendment. The conflict between the nomadic and the settled exists all over the world and stretches back, I suspect, to the advent of the first farmer. There will be no end to the potential for tension. I am well aware that all around the country, wherever the two communities come into proximity, there is the potential for flare-ups. In many cases, flare-ups have occurred, and they cause a great deal of emotion. But we should look at such matters from a background of liberty and tolerance, and recognise that we must facilitate people's right to pursue another way of life, so long as they exist within reasonable norms, as the noble Lord, Lord Graham, says.

I and many of my colleagues should feel particularly sympathetic towards Gypsies when we are in the process of having part of our way of life crushed by the majority. We should understand what it feels like to have the basis of one's existence denied by the majority. We should therefore feel notably sympathetic towards making sure that other people get what we would like to have, if I can put it that way. It is a case of "do as we would be done by".

Baroness Miller of Chilthorne Domer

I welcome the amendment. Having been a councillor both pre-1994 and post-1994, I think that the amendment is particularly important. Before the repeal of the duty, councils felt able to be proactive; after the repeal, it was only the very brave councils which felt that they could enact Circular 1/94, and were often taken to task by their residents, who saw neighbouring councils doing nothing, as they were able to do. So I would welcome a duty being reimposed.

I particularly welcome proposed subsection (2) in which one local authority can call on the help of another. Too often, that help has not been forthcoming. If all three tiers of local government can work together, it will help.

Should the new clause be accepted, I hope that the experience of those who have tried to continue to provide sites will be understood. From what I have observed, small sites work very much better. I hope that if this duty is given again to local authorities, there will be guidance to the effect that one large site does not work well. Although it is harder because more local communities have to be addressed, the provision of several small sites across an authority seems to work very much better.

Baroness Hanham

I do not want to pour cold water on the unusual unanimity in the House. However, having dealt with this matter as a former leader of a council, I need to raise one or two areas of concern.

The noble Lord, Lord Avebury, has said that this duty is not really a duty. I do not quite understand that. In legislation, as I understand it, a duty requires you to do something and there do not seem to be very many ways around that. Perhaps he would be kind enough to explain that again when he responds to the debate.

I have concerns about the inclusion within this of metropolitan districts and London boroughs. London boroughs, particularly those in inner London, found this burden almost impossible to bear under the previous legislation. It is a very major duty and one which in many cases is simply not achievable. Proposed subsection (2) would not help, because when one authority has finally managed to find land that is appropriate, it will not be terribly keen on providing it for others. In my borough in London, we co-operate and combine on this matter with the borough next door to provide sites. I am bound to say that if we had to do it again, we would be seriously pushed to be able to provide these facilities.

I do not think that we will be able to waft this through on the basis that it will be absolutely fine. It will not be fine in metropolitan areas and London borough areas. If the noble Lord pursues this measure, we would have to oppose that aspect of the legislation.

Lord Bassam of Brighton

As noble Lords will know, I and my noble friend Lord Rooker have a great deal of sympathy with not only the new clause but also the cause that the noble Lord, Lord Avebury, has so assiduously pursued, certainly in my time in your Lordships' House.

I am certainly in agreement with the idea that adequate provision should be made for Gypsies and Travellers. My local government experience showed me the folly of not doing that. As a product of my time as a leader of an authority that had a lot of green land around it, I also became very aware of some of the problems that are associated with Traveller encampments, and so on.

Failures in the past have made it much harder for Gypsies and Travellers to have easy access to education, healthcare, employment and to take benefit from the other range of facilities which exist and should be on offer through the public service. I also agree that local authorities should work together and each make a fair contribution to meeting need. There should be a way of ensuring that need, where it is identified, is met to the same extent as housing need. However, I do not agree that imposing a new duty is necessarily the best way forward.

My noble friend Lord Graham asked why the law was changed. I cannot speculate on the thinking behind the Criminal Justice and Public Order Act 1994, but it was part of an approach adopted by the then government, who held that the Caravan Sites Act 1968 was no longer effective. Although I regretted the Act's demise at the time, the then government had a point. Only 38 per cent of councils had met their obligations under the 1968 duty. Statistics suggest that unauthorised encampments fell by just 1 per cent as a result of the change in the law. The supposition behind the legislation was that Gypsies and Travellers would buy their own land, aided by Circular 1/94, which probably has not worked as well as some enthusiasts for it thought that it might.

However, we need to move on. If the past duty is no longer seen as an effective way forward, other measures should clearly be taken. The previous duty did not result in the universal, high-quality and appropriate provision that modern standards suggest should be there. A duty that relates only to Gypsies and Travellers rather suggests that they should remain, as they have been for so long, outside the system. It perpetuates the idea that they are different and separate. Imposing a duty would be accepting that local authorities should not have to meet Gypsy and Traveller needs through the same mechanisms as they meet the needs of the rest of the community. I do not accept that. The only way to ensure long-term, sustainable and high-quality provision for Gypsies and Travellers is to bring them within the systems that already exist and to provide them with a greater measure of equality in those systems.

4.15 p.m.

That should happen through the new planning system. Noble Lords who were present will recall that during discussions on the Planning and Compulsory Purchase Bill, my noble friend Lord Rooker and I were sympathetic to the pressure that was understandably brought to bear by the noble Lord, Lord Avebury, my noble friend Lady Whitaker and others. That Act will ensure that Gypsy and Traveller needs will be mainstreamed in the housing and planning systems, along with the needs of the rest of the community. Local authorities will work with regional housing boards to ensure that local and regional needs are met within the system. That will avoid the bureaucracy and conflict that would be likely to arise if local authorities were legally bound to assist other local authorities or to show why they could not, as is suggested by the amendment.

It is of course essential that, in the process of mainstreaming, Gypsies and Travellers do not get lost among all the other groups competing for resources. Local authorities will need to think and act strategically in relation to Gypsy and Traveller needs, and they must accept their responsibilities willingly towards that often marginalised group.

The noble Lord, Lord Avebury, has added to the amendment and to Amendment No. 225 a definition of "Gypsies" and "Travellers". All I can usefully say in response is that that is one of the issues on which we are due to report. The noble Lord's draft is interesting and appears to have value, but it would be premature to pursue that element of his amendment until the report is introduced. I cannot give him an exact date on which that report will be produced. I regret that it has been delayed, but I am sure that it has been delayed for good reason and that it will be important document of policy.

I certainly sympathise with what has been said, but there are problems with the suggested approach. The Government have put more resources, effort and intellectual thought into dealing with such problems than previous governments, because we recognise that Gypsies and Travellers have suffered and have been marginalised. We want to try to embrace their needs and bring them within the systems that provide decent-quality public services for all. While we understand the point of view of the noble Lord, Lord Avebury, our approach is probably better suited in the long term to matching their needs and aspirations.

Lord Avebury

I thank all noble Lords who have supported the amendment. That includes every noble Lord or Baroness who has spoken, with the partial exception of the noble Baroness, Lady Hanham, who poured cold water on the idea that the duty to provide for Gypsies and Travellers should be imposed on London and metropolitan boroughs in the same way as it is on local authorities elsewhere. To recap what was said by the right reverend Prelate the Bishop of Newcastle and the noble Lord, Lord Lucas, this is a win-win situation between the Travellers and the settled community. If we can solve this problem, if we can get sites, then it will assist the Gypsies and, as the right reverend Prelate correctly observed, eliminate the nuisance we have up and down the country.

The noble Lord, Lord Rooker, is well aware of this from the number of Members of another place who have raised the matter in adjournment debates. For example, the other day I spoke to Mr Paice, who represents the area of Cottenham, where there is a very large, unauthorised encampment. The noble Lord, Lord Rooker, may be interested to know that we had the Cottenham Residents' Association and the Gypsies speaking together in amicable terms at the meeting of the Traveller Law Reform Parliamentary Group. They agreed that this was the right way forward, that there should be a duty on local authorities to provide sites and that that would enable unauthorised encampments, such as we have at Cottenham and in the village of Minety, which was dealt with in Trevor MacDonald's programme, to which I have already referred, to be eliminated.

Viscount Goschen

I thank the noble Lord for giving way. I was extremely interested in the last point he made. It is the key to the whole issue. Will he expand a bit further on why he is so confident that all Travellers—a notably independent-minded group of people—would use sites officially approved by an authority, if they were provided, rather than those of their own choice? As the noble Lord has said, "Gypsies and Travellers" encompasses a broad group of people from traditional Roma to those who fancy the urge to go to a pop concert and want to claim that they are nomads who have come to rest in a farmer's field, where they cause serious problems. If the noble Lord has a solution to this very difficult problem—the noble Lord, Lord Graham, was right to point out to us that it is difficult—he would receive a great deal of support. But at the moment, I do not understand why he is so confident that that would be the case.

Lord Avebury

I shall be delighted to answer the noble Viscount's question and at the same time address the point that was raised by the noble Baroness, Lady Hanham. A large number of Gypsies do provide their own sites and this is the way in which most of the Gypsy community would like to go. But they have not been able to do so because Circular 1/94 did not encourage local authorities to provide the necessary planning permissions, as had been hoped. This is why Gypsies are buying pieces of land in unsuitable locations up and down the country and then applying for planning permission, going all the way through the appeal system and coming into conflict with local residents.

I am suggesting—this is the answer to the noble Baroness, Lady Hanham—that if, say, 80 per cent of Gypsies wish to develop their own sites, have the means to do so and can get the planning permission—which they ought to be able to do under the new Planning and Compulsory Purchase Act because land will be designated for that purpose—there will still be a residue of perhaps 20 per cent of the Gypsy and Traveller population who do not have the means or the skills to go through the planning system, to get their own sites and to develop them. I entirely agree with my noble friend who said that smaller sites are much better than the larger ones. I hope that local authorities will take that into consideration in planning for the needs of Travellers, as they will have to do in 2005 onwards as part of the housing needs assessment.

But what are we to do with the 20 per cent who are not able to afford their own sites? This is what I was asking the Minister to address and he said nothing about it. We will have to wait and see what the ODPM survey suggests should be done about those people.

I agree with the noble Lord, Lord Bassam, that the Planning and Compulsory Purchase Act 2004 will be a major step forward, because there will then be within each local authority a definite number of sites and pitches that will have to be divided, in the same way as the local authorities provide for housing. But it is not said who is going to give those sites. The majority will be dealt with by the Gypsies themselves and a few may be provided by registered social landlords; but a small minority of people will not be able to afford, or do not have the skills, to go through the system as has been outlined. What we suggest is that local authorities should have a duty, as necessary, to provide or facilitate for that small minority.

I said that I did not expect to reach a solution this afternoon, because a survey is being undertaken by the ODPM and the Select Committee has to report, which will happen in October. I hope that by the time we come back to the matter on Report we shall have both documents. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 224:

After Clause 186, insert the following new clause—


(1) In section 5(1) of the Mobile Homes Act 1983 (c. 34) (interpretation) for "protected site" substitute the following definition— "protected site" has the same meaning as in Part 1 of the Caravan Sites Act 1968 (c. 52) except that it also includes any Gypsy and Traveller site owned or managed by a county council or a district council.

(2) In section 5(5) of the Caravan Sites Act 1968 (c. 52) (supplementary) for "shall not apply" substitute "applies".

(3) Section 4(6)(a) of the Caravan Sites Act 1968 (provision for suspension of eviction orders) is repealed."

The noble Lord said: The amendment seeks to give effect to the judgment of the European Court of Human Rights, in the case of Connors v United Kingdom, about which I wrote to the Minister on 29 May. It puts Gypsies on the same footing as others as regards security of tenure by reading across to Gypsy sites the relevant provisions of the Mobile Homes Act 1983.

Briefly, Mr James Connors, a Gypsy, had been resident on the Cottingley Springs caravan site for some 15 years, apart from the short interval in 1977, when he and his family were summarily evicted, on 1 August 2000, in a five-hour operation involving police and bailiffs. The county court granted the council possession on the grounds that the family were trespassers, their permission to occupy the land having been withdrawn. From then onwards, Mr Connors and his two elder boys, Charles and Michael, who were aged 14 and 13, moved around the area in one of their caravans, staying only a couple of weeks in any one place before being moved on, while Mrs Connors separated from her husband and moved into a house with the younger children—Daniel, 10, and Thomas, four months.

The central issue in the case was whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority Gypsy sites provided the applicant, Mr Connors, with sufficient procedural protection of his rights. The court was not satisfied that local authorities needed the flexibility allowed by the power of summary eviction in order to cope with a nomadic clientele—bearing in mind that according to the Niner report, as I have already mentioned, 86 per cent of Gypsies remained on the same site for three or more years.

The court was not satisfied that there was any particular feature of local authority Gypsy sites that would render their management unworkable if they were required to establish reasons for evicting long-standing occupants. Analysing the absence of procedural safeguards, the court dismissed the Government's argument that judicial review was adequate for the purpose, because it could not provide an opportunity for examining the facts in dispute between the parties.

In fact, since the local authority was not required to show any substantive justification for evicting a Gypsy from one of its own sites, there was never an opportunity for any judicial consideration of the facts that led to the eviction. The court therefore found that the eviction of Mr Connors and his family was not attended by the necessary procedural safeguards—namely, the requirement to establish proper justification for the serious interference to his right to family life, and could not be regarded as justified by a pressing social need or proportionate to a legitimate aim being pursued.

In his response of 6 August to the letter that I wrote on 29 May, Mr Hill apologised for the long delay, but all he said was that security of tenure was being considered as part of the ODPM's policy review. If the review recommended a change in the legislation, the matter would be referred to the Law Commission's tenure review which is expected to produce its findings, together with a draft Bill, towards the end of the year.

In fact, the Law Commission's website says that it hopes to publish its final report with a draft Bill in early 2005. That means that with the general election approaching there will probably not be time for Parliament to consider such a Bill in the next Session, which may be shorter than usual and is likely to concentrate on matters considered more attractive to the electorate.

The summary eviction powers that the European Court declared were a breach of Article 8 would then remain in force for at least 18 months after the judgment; in spite of the fact that a convenient opportunity to eliminate them in the shape of the amendment is being offered to the Government now. That would not be in accordance with the spirit of our adherence to the convention. I hope that the Minister will feel able to accept the amendment. I beg to move.

4.30 p.m.

Lord Lester of Herne Hill

I apologise for the fact that I spoke in support of the wrong amendment, even though I supported it. I had not realised that the amendments had been degrouped because of the importance of considering each one separately. Lawyers are terrible at matters of procedure, especially this lawyer. However, I was able to pay tribute to my noble friend Lord Avebury and I do not need to repeat what I said.

I would like to concentrate on the obligations on the United Kingdom to give effect to the landmark judgment of the First Chamber of the European Court, which included the British judge Sir Nicholas Bratza. The decision was unanimous. The Government wisely decided not to challenge the decision by seeking to refer it to the Grand Chamber of the court.

We have here a final and binding judgment as of 27 May. The Government have six months in order to report to the enforcement mechanism under the European Convention—that is, the Committee Ministers of the Council of Europe—on what they propose to do in order to give effect to the judgment.

That does not mean only satisfying judgments in terms of some £30,000 in compensation, legal fees and expenses that the taxpayer will have to pay to satisfy the judgment in respect of the individual; it means also putting right the systemic failure so that other Gypsies in similar circumstances do not have to retain lawyers and bring legal proceedings in this country and then before the European Court of Human Rights.

I know that the Government are likely to say that they will not tell the Committee what they propose to do until they have told the Committee of Ministers, which they will probably not do until 27 November, which will be after the Bill has left the House and we lose any control or influence over the matter. I very much hope that that will not be the Minister's response today for the following reasons.

The Bill provides a perfect opportunity to implement the court's judgment with a simple amendment—I congratulate my noble friend and the Commission for Racial Equality, which authored the amendment. It is a simple way of putting right the systemic ether. It does not require the Law Commission, a possible draft Bill and a further delay—as my noble friend said—of 18 months or even longer to put the matter right.

It would be extremely unfortunate if other victims had to go to British courts and the Strasbourg court completely unnecessarily in order to obtain a remedy in the long term when it is Parliament's job as well as the Government's to comply with the obligations imposed on the United Kingdom by being party to the convention. I have a number of questions for the Minister; if he cannot reply to them today we shall return to the matter on Report. What is being said in this debate, and will be said in the debates on the remaining stages of the Bill, will undoubtedly be scrutinised carefully in Strasbourg by those responsible under the enforcement mechanisms. Therefore, it is not a complete waste of breath for us to debate this measure carefully at this stage and to seek answers from the Government.

As the Joint Committee on Human Rights, to which I belong, will not meet again until 13 October—which I believe is the contemplated date for the Report stage—it will not be able to do its normal scrutinising job in time to influence what happens on Report, although I hope that certainly by Third Reading we can have the benefit of the committee's considerations.

I should like to ask the Minister the following questions. First, have the Government approached the Law Commission to ask it to consider urgently what needs to be done in order to implement the judgment, as it plainly is urgent? If not, will they do so very soon, if the Law Commission is to be involved, although I do not see why it needs to be?

Secondly, will the Minister confirm that the Government have an obligation under the European Convention to introduce general measures to prevent future violations in similar cases? I should have thought that must be an easy thing to answer as it is obvious.

Thirdly, does the Minister agree that it is important for the Government to avoid the need for further unnecessary litigation by making the necessary changes? Finally—this is the most important question of all—will the Minister explain why this amendment is not tailor-made and fit for the purpose of providing a proper remedy for the systemic failures that my noble friend has already explained, and that are explained fully in the important judgment of the European Court? I very much hope that that final question can be answered today because it is the most important one at the moment as regards determining whether this amendment should have our support.

Lord Bassam of Brighton

This clause seeks to widen the definition of a "protected site" in the Mobile Homes Act 1983 to include local authority-owned and/or managed Gypsy and Traveller sites to give security of tenure to residents; to extend the Protection From Eviction Act 1977 to those occupying caravan sites as a residence; and also seeks to give courts the power to suspend an eviction order against a resident of a local authority site.

We have been looking at the issue of tenure on local authority sites in detail in our policy review. It is clear that security of tenure for Gypsies and Travellers is out of line with that for both conventional housing and park homes. The original justification for this—that the level of security of tenure for Gypsies and Travellers was appropriate to facilitate nomadism—has much less force now than it had in the past. However, in this debate a number of Members of the Committee made the point that in some ways Gypsies constitute much more settled communities now than they have done for many, many years.

In terms of type of resident, type of landlord and management needs, local authority Gypsy and Traveller sites share characteristics with social housing. Of course, the legislation that underpins them is different, and a great deal of further consideration would need to be given to how public sites might be brought more into line with social housing. Such a task is not possible within the timescales of the Bill.

Furthermore, amending the Mobile Homes Act in the way suggested would have wider consequences. It would confer succession rights to the occupation agreement, allow residents to assign their occupation agreement to others, and allow local authorities to charge commission on the sale of caravans. This is another reason why the amendment is unsuitable.

Subsection (2) of this amendment is not necessary in relation to those on protected sites under the Caravan Sites Act 1968, which includes all those on local authority-owned sites—apart from those on county council-owned sites—as this effect is already achieved by Clause 186 of the Bill. Clause 186 extends protection from harassment and unlawful eviction to those occupying caravans as a residence on a protected site. Section 3 of the Caravan Sites Act 1968, once amended by Clause 186, will offer equivalent and equal protection to those occupying caravans on a protected site as is offered to those occupying conventional housing by the Protection from Eviction Act 1977.

I am aware, however, that there is a disparity between the status of sites owned by district councils and those owned by county councils. The former are protected sites under the Caravan Sites Act 1968, and the latter are not. We are currently considering this issue further.

Subsection (3) of the amendment seeks to give courts the power to suspend eviction orders made against residents of local authority-owned sites. The amendment is drafted widely, as it would allow courts to suspend eviction orders in all cases where the sites were owned by a local authority, not just Gypsy and Traveller sites. However, I am happy to give this amendment some further consideration and, if appropriate, return to it on Report.

The noble Lord, Lord Lester of Herne Hill, asked a number of questions, and I will try and respond to them as best I can. The first question he asked was whether we have approached the Law Commission. No, we have not as yet, in dealing with the specifics of the case. We need to be clear about exactly what we want. Security of tenure is obviously a complex issue and, as I think I have said already, a detailed review of that is continuing.

The second question the noble Lord asked was whether we are putting things in place to correct systemic problems. I think that is a very fair question. We will consider this again but, as I have said, it is not as straightforward as the noble Lord would perhaps like to assume. But we will look at this very carefully, because clearly this is part of the continuing review we have been undertaking.

The third question related to the need to avoid litigation. Of course we agree. Yes, that is absolutely desirable. But we do want to get it right, and that is why we want to look at the social rented sector, as I said earlier in my contribution, as a comparator. I think the fourth question was probably covered in what I said earlier.

We recognise the scale of the difficulty that the court case in particular has created. It has highlighted some very important issues. We are happy to look at elements of the amendment, because we can see there is merit in it. But we want a period of further reflection, and I think it would be useful if the noble Lord, Lord Lester, would enable us to give this some further thought and come back on Report.

Lord Lester of Herne Hill

I am extremely grateful for the helpful and encouraging answers to my questions. I think I am right in interpreting what the Minister has said in this way: we can hope that on Report, before this Bill leaves this House, we will have an opportunity for considering another way of implementing the judgment, which will avoid, perhaps, the need for 18 months of delay with the Law Commission and further legislation. That is one very important thing. As I understand the Minister, he is indicating that that is his hope, and we, and the Government, could therefore do our job in Parliament in implementing the judgment before the end of the Session. Have I understood him correctly?

Lord Bassam of Brighton

I would not want to be hung out to dry absolutely on the interpretation of the noble Lord, Lord Lester. I am certainly going to ensure that we address the issues that have been raised this afternoon. Whether we manage to come back with a perfected solution within the current Session is an open question. As I said, there are elements of the amendment that we want to give some further consideration to, which may go some way to meeting some of the problems that have been highlighted by the Connors case. So I know that that has qualified, perhaps, the noble Lord's rather more enthusiastic interpretation of what I said. But I do not want to mislead the Committee, and it would be quite wrong and improper of me to do so.

4.45 p.m.

Lord Avebury

I am grateful for the Minister's partial assurance, and would like to suggest a way forward on the matter that might commend itself to the ODPM. First, can we agree that the Connors case should be looked at separately from all the other issues that the ODPM has under review as part of its consideration of policy on Gypsies? Secondly, during the interval between Committee and Report, the legal experts in the CRE who assisted us in drafting the amendment should be in touch with the Minister's Bill team to see whether they can find mutually acceptable improvements in the wording.

Thirdly, bearing in mind that only the first day of Report is on 13 October, my noble friend would be able to consider the matter in the Joint Commit tee on Human Rights on that day and still be in time for recommendations to be made to the House that could be considered when we returned to the matter on Report. With those three conditions, would be happy to withdraw the amendment, but I would be grateful for an assurance from the Minister that my suggestion about contact between the CRE's legal experts and the Bill team could be facilitated during the interval.

Lord Bassam of Brighton

What the noble Lord says makes a lot of sense and we will happily sign up to those three practical propositions, to see what we can do with them.

Lord Avebury

That is great. I shall mention just one other matter while I think of it. In case the Law Commission has to proceed with consideration of the matter to incorporate whatever decision is made in the draft Bill, which will be laid before the ODPM early in 2005, might it be a good idea for the ODPM to initiate some discussion with the Law Commission now? It is apprised of the matter because I have told it about it, but it would be better if some approach were made to it by the ODPM.

Lord Bassam of Brighton

The answer is obviously yes but, as I said earlier, there needs to be further thought on exactly the basis on which we make that approach. It makes a lot of sense to work out from where we are coming to start with.

Lord Avebury

I am grateful to the Minister. The question is simply one of timing. We do not want any unnecessary delay, because the Law Commission would say, "If you'd told us about this earlier, we might have been able to incorporate it in the draft Bill, but as we've only just heard of it we need a little more time". With that on record, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Whitaker moved Amendment No. 225:

After Clause 186, insert the following new clause—


(1) The Housing Act 1985 (c. 68) is amended as follows.

(2) In section 8(1) (periodical review of housing needs) at the end insert "including accommodation to meet the needs of gypsies and travellers."

(3) In section 56 (minor definitions) insert at the appropriate place— Gypsies and Travellers"— Gypsies" means Romany Gypsies; Travellers" means—

  1. (a) Irish Travellers,
  2. 1407
  3. (b) members of ethnic groups for whom living in a caravan is part of their traditional way of life, or
  4. (c) persons of nomadic habit of life, whatever their race or origin.""

The noble Baroness said: Amendments Nos. 225 and 226 are complementary to the previous amendments—Amendments Nos. 223 and 224—and some of my concluding remarks apply also, in the round, to all of them.

Amendment No. 225 would oblige housing authorities to include in their periodic review of housing needs those of Gypsies and Travellers. It further defines Gypsies and Travellers as the earlier two amendments did, and as the noble Lord, Lord Avebury, described, so that the definition is inclusive and does not restrict the category to where or how people have chosen to live. It is the ethnic identity which has been the subject of so much endless prejudice, and it is therefore the ethnic identity which ought to be protected.

Amendment No. 226 amends the Housing Act 1996 to enable Gypsy and Traveller site providers to register as social landlords, and the Housing Corporation to fund such site provision and management along with its other funding purposes, as the right reverend Prelate the Bishop of Newcastle recommended earlier today. It further inserts a definition of accommodation to include accommodation to meet the needs of Gypsies and Travellers in action to deal with homelessness. The amendment would also reiterate the new definition of Gypsies and Travellers itself in that Act. The effect of those amendments would be substantially to diminish the marginalisation of Gypsy and Traveller communities, and thus in turn to enable them to play more part in community responsibilities, as my noble friend Lord Graham indicated.

There is general acknowledgement that the kind of change made by these amendments is necessary. As the noble Lord, Lord Avebury, said, the National Farmers Union supports these new duties and powers, as do the Association of Chief Police Officers, the Local Government Association and the Commission for Racial Equality, which of course gave particular help. So does the exemplary Cottenham Residents' Association, as the noble Lord, Lord Avebury, described.

I congratulate my noble friend the Minister on the Government's expressed intentions—the Office of the Deputy Prime Minister thinks that the authorities should assess the accommodation needs of Gypsies and Travellers; the Minister of State, my honourable friend Keith Hill, said in another place: we hope to introduce a series of announcements and proposals, some of which may be incorporated in the [Housing] Bill".—[Official Report, Commons, 11/5/04; col. 276.] My honourable friend Yvette Cooper said: We plan to extend the permissible purposes of that [Housing Corporation] money to allow local registered social landlords to provide Gypsy and Traveller sites".—[Official Report, Commons, 19/5/04; col. 1075.]

This has been going on for some time. Over a year ago, in your Lordships' House, my noble friend Lady Scotland of Asthal said: we are currently looking at ways in which to develop policy that will lead to an increase in the provision of authorised sites. And, of course, there is the new legal duty to promote equality of opportunity under the Race Relations Act, innovated by this Government. Most recently of all, there is my right honourable friend the Chancellor's spending review document of last July: The Government will be looking to improve prospects for gypsies and travellers in the 2004 Spending Review".

With all this support, as well as the explicit approach of the Government, it seems absolutely uncontroversial and straightforward to include provisions on the lines of these amendments in the Bill. I know the Government have said that they want to await the definitive recommendations of their own review of Gypsy and Traveller accommodation; but this Bill is the obvious vehicle for progress and another suitable vehicle may not come along very soon. If the Government mean business on all this, acceptance of these amendments would demonstrate it.

Meanwhile, this is the reality for Tom Sweeney, co-chair of the Irish Travellers' Movement: my licence states that I can be given as little as seven days' notice … This creates for me and my family a real lack of ownership in our site; we feel like we are under continual probation. Our home does not feel like a home. I have lived on my site for 14 years and been engaged in a whole range of charity and community work with bodies like the Catholic Children's Society. I have put something into the community but what has the community given Travellers like me in return?

Well, what has the community given him and his family and others like them in return? Shorter lives; worse health; perhaps the highest maternal death rate of all ethnic minorities; poorer educational achievements; insecurity; persecution and prejudice. Unfair treatment in housing is probably the greatest single contributor to this manifest inequality and we ought to remedy it now. I beg to move.

Lord Avebury

One point upon which the Minister did not comment in the earlier amendment was the role of registered social landlords in providing accommodation for Gypsies and Travellers. In supporting the amendment moved by the noble Baroness, Lady Whitaker, I should like to press the Government on that matter.

It is important to recognise that, although the vast majority of Gypsies, as I have said, may wish to provide their own sites, there are some who are unable to do so, financially or otherwise. Do the Government think that registered social landlords have a role to play in the provision of such sites? If so, have the Government had discussions with the Housing Corporation on facilitating the power of the corporation to fund the provision of sites? Have they spoken to any of the registered social landlords who are considering that kind of work?

In particular, the Novas Ouvertures Group, operates some sites that were transferred entirely into its care by local authorities. The group has the skills to manage Gypsy and Traveller sites and is willing to do the work. It has told me over the years that, if it could find a local authority that was willing to provide the land and the Housing Corporation provided the funding, the group could put schemes together. The noble Baroness, Lady Hanham, might like to know that it has discussed such schemes with a number of local authorities such as Liverpool. One might not think that Liverpool was a city with much spare land. But at least discussions were entered into with the Novas Ouvertures Group, and that might have proceeded, if the funding had been available.

Milton Keynes is another place where there is a possible contribution to be made, because that city wishes to provide Traveller sites. If the Housing Corporation provided the funding, Novas Ouvertures' offer to build and manage the site could provide an extremely fruitful partnership. I should like the Government to promote such arrangements where there is a tripartite agreement between the Housing Corporation, the registered social landlord and the local authority, so that the three together could make such provision.

I believe that the Housing Corporation, which says that it would be glad do this if it was allowed to, and at least one registered social landlord would be willing to be involved. Perhaps the local authorities, who know they will be faced with a duty under the Planning and Compulsory Purchase Bill, would see this as a useful way of providing high quality sites that would not attract the sort of odium that some of the unauthorised sites have attracted recently.

Lord Bassam of Brighton

The amendment would specifically include Gypsies and Travellers in local housing needs assessments and puts forward a definition of Gypsies and Travellers. I dealt with that point earlier—to the noble Lord's satisfaction, I hope. I repeat that that is actively being considered by the Gypsy and Traveller review. We will be discussing that later in the year.

As noble Lords may be aware, to assist local authorities in their assessment of the unique needs of Gypsies and Travellers, ODPM is updating the good practice guidance on local housing assessments that was issued to them in 2000. It will now specifically provide advice on assessing the needs of Gypsies and Travellers, setting out a baseline list of things that should be considered and recommending for the first time an appropriate methodology. That revised guidance will be in place next year. However, I am happy to consider further whether any statutory changes would be helpful, and I am happy to give a commitment that we will return to this matter on Report, if appropriate.

Amendment No. 226 is aimed at including sites in the housing system and permitting registered social landlords to provide sites. As part of our review of Gypsy and Traveller policy, we are looking at how to mainstream Gypsy and Traveller provision in the wider housing and planning system, as I have said. We agree that for too long questions to do with the provision of sites and how they should fit in with the wider housing system have been neglected. We are now giving those questions the consideration they urgently require.

5 p.m.

However, the amendment could have some extreme, perhaps unintended consequences. It would make every reference to housing and accommodation in the Housing Act 1996 also cover Gypsy and Traveller sites. There are apparently over 1,000 references to these terms, covering a wide range of housing contexts, from homelessness to houses in multiple occupation, from injunctions to the powers of the Housing Corporation, from leasehold reform to introductory tenancies. For that reason I do not consider it appropriate to make all references to housing, accommodation and housing accommodation also apply to Gypsies and Travellers. Some of them are likely to conflict with existing law covering Gypsy and Traveller sites.

The consequences of changes affecting sites and their appropriateness need careful consideration, and that is exactly what the review is doing. I quite agree that registered social landlords should be able to provide sites for Gypsies and Travellers. To achieve this it is only necessary to extend the permissible purposes of registered social landlords. This could be best done through secondary legislation and I am happy to repeat the commitment that has already been given to that effect.

I hope that the mover of the amendment will feel happy to withdraw, because I think that we are moving in the same direction, albeit in a slightly different way, but for very good reasons. The noble Lord, Lord Avebury, asked a question about the role of registered social landlords. Initial discussions have been undertaken with the Housing Corporation, but there have been no direct discussions with RSLs. We have committed to amending the permissible purposes of RSLs, so that they can receive grant to build sites. Those grants come from the Housing Corporation, so we are on track. Perhaps we have not travelled quite as fast and furious as the noble Lord, Lord Avebury, would like, but we are making progress.

Baroness Whitaker

I would like to thank the noble Lord, Lord Avebury, for his very helpful contribution to this small debate and also to welcome my noble friend the Minister's announcement of improvements in the guidance, and particularly his offer to consider statutory changes. I hope that the Government will be very positive about the role of the Housing Corporation and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 226 and 227 not moved.]

Baroness Darcy de Knayth moved Amendment No. 228:

After Clause 186, insert the following new clause—


(1) The Housing Act 1996 (c. 52) is amended as follows.

(2) In section 167(2)(d) at the end insert "or to meet their access needs".

(3) After section 167(2E), insert— (2F) Subject to subsection (2), the scheme may contain provision for the creation of a disability housing service consisting of—

  1. (a) a register or database of existing or planned accessible residential properties in the local authority area, whether purpose built or adapted, with details of the access features relating to each property;
  2. (b) a register or database of disabled people who require accessible housing; and
  3. (c) a service of matching disabled people to properties so recorded.
(2G) For the purposes of this section "accessible residential properties" means dwellings, flats and houses in multiple occupation in England and Wales which provide a reasonable means of access and ease of use for disabled people or which may easily be adapted to provide such access and ease of use."

The noble Baroness said: I am moving this amendment as my noble Friend Lady Wilkins is unfortunately not well. She knows a lot more about housing than I do, and any arguments that I hope that the Minister may find persuasive are hers. The amendment would do two things. First, it would place the access needs of disabled people at the heart of the allocations process. Currently disabled people may qualify as a priority for housing on medical and welfare grounds, which may help to explain why disabled people are not always treated with the level of priority that they deserve.

More than one in five disabled people live in homes where it is either difficult to move around or to get in and out. That figure comes from a John Grooms survey in 2003. A quarter of wheelchair users face these problems, a third of disabled people in rented accommodation had to wait more than a year to be offered their home. More than one in ten had to wait more than three years. Mencap's Housing Timebomb campaign report in 2002 revealed a severe dearth of housing for people with learning disabilities. It estimated that at the current rate of provision it would take 30 years to meet the needs of people living with older parents aged 70 or over. More research by Emerson in 1996 on residential provision for people with learning disabilities demonstrates a serious shortage of alternative housing and support places outside the family home for people with a learning disability.

Secondly, the amendment provides for local housing authorities to establish disability housing registers. Owing to the shortage of accessible housing properties, disabled people's housing options are extremely limited. Often, when a property with adaptations becomes available for letting, landlords have difficulty in identifying someone who needs it, so it may be let to someone who does not need it, or, ever worse, the adaptations may be removed from the property altogether. The amendment is designed to overcome these problems.

A disability housing register consists of a database of accessible property, a database/register of disabled people who require accessible housing and—particularly important—a service of matching people to available property. Such services have been established in, for example, Leicestershire, Reading, Liverpool, Cardiff and Glasgow. The GLA is currently examining the feasibility of a London-wide register. Its initial research has found a very high level of interest from local authorities, housing associations and local organisations of disabled people.

More and more local authorities are realising that disability housing registers are key to better planning for future housing need, a more efficient allocations policy and for supporting real choice and independent living for disabled people.

At Second Reading on 7 June (at col. 132 of the Official Report) the noble Lord, Lord Bassam, suggested that statutory provision for DHRs would create a disproportionate burden on local authorities. That is rather surprising, given the degree of interest from authorities themselves and the amount of advice and support available from HoDis—the National Disabled Persons Housing Service—and other organisations to set up and run such schemes, together with the success of existing schemes and the major cost-savings, which can be in the region of hundreds of thousands of pounds a year.

Along with the Disability Rights Commission, HoDis, Mencap, the RNIB, RADAR, Shelter and countless others, which I had better not mention now because we are short of time, I believe that the time has come to place disability housing registers on a statutory basis. The amendment as drafted does not impose an absolute duty on local authorities; it is discretionary. Nevertheless, I think that it would create a powerful lever to ensure that such services become the norm across the country.

Therefore, I very much hope that the Minister will respond positively and that he may even bring forward a government amendment in time for the Report stage. If so, perhaps we could see it beforehand. I look forward to his response. I beg to move.

Baroness Hamwee

The name of my noble friend Lady Maddock has been added to this amendment. She is sorry that she has been unable to stay for the debate. It will not improve the argument for me to repeat the points made very clearly by the noble Baroness, Lady Darcy. I shall say only that I am particularly glad to be able to support an amendment which is discretionary for local authorities. I always struggle when we ask local authorities to take on yet more duties. But I think that the noble Baroness's point about a lever is a very good one.

I am also mildly amused that we are yet again proposing a voluntary scheme in view of the two days that we spent on the issues of compulsion and discretion in relation to another part of the Bill. I hope that the Minister will be not only sympathetic—I am sure that we shall get sympathy—but that he will ensure a real outcome on this. I am happy to be able to support the amendment.

Lord Best

I also support the amendment moved by the noble Baroness, Lady Darcy. The Joseph Rowntree Foundation has carried out some work on accessible housing registers, so perhaps I may add one or two reasons why it may be worth the Minister supporting the amendment.

We started work about 12 years ago in Kent, where a disabled persons' accommodation agency tested the scheme. It has now spread to other parts of the country, the work done there being picked up by HoDis—the National Disabled Persons Housing Service—with Ginnie Shaw at the helm.

I think that this issue has become increasingly important because the housing associations and the local authorities have to meet targets in their re-letting of vacant properties. There is pressure on them to get on with the job and to do so quickly if they are not to lose points with their regulators and the people who are interested in their affairs. If they have to sit around and wait while they search for a disabled person to fill a vacancy because they are letting a property with, for example, an extension at the hack with a downstairs bathroom, they will be losing time and losing points in the great scheme of things. If there is a register that can be accessed quickly so that they can find a person for whom such an adaptation is suited, they can proceed. It will not then be necessary, as so often happens, to rip out the adaptations that have already been made and refurbish for someone with no mobility needs. Accessible housing registers are very useful in the social housing sector.

A register would also be useful in the private sector among private landlords who, unless there is an easily accessible place, do not know where to look for a disabled tenant when they have a property that has had some adaptations made to it. Even in the owner-occupier sector, estate agencies can be drawn in voluntarily to a scheme of this kind. There are schemes in Yorkshire, Sheffield and Bradford, but I single out the one in Leeds for special praise because it has targeted the private sector. The register there includes details of homes that are on the market privately but which are suitable for disabled people.

The system is picking up a little steam. The trouble is that it is moving rather slowly and this amendment to the Bill would give added impetus to local authorities to pursue a scheme for accessible housing registers. I commend the amendment to the Committee.

Lord Bassam of Brighton

The Government fully appreciate and concur with the motivation behind the amendment. We recognise that it is of enormous importance that people with disabilities are housed appropriately. That is why the Government encourage local housing authorities to maintain lists of properties that are suitable for disabled people. Our code of guidance on allocations, issued in November 2002, recommends that housing authorities maintain lists of properties that are suitable for disabled people and other special needs groups. Such lists might include all accessible or significantly adapted local authority stock, RSL properties and private sector properties to which authorities nominate tenants who need to be brought within it.

In addition to the statutory guidance, good practice guidance on disabled housing registers is also available to social landlords. A Perfect Match?, published jointly by the Housing Corporation and the National Disabled Persons Housing Service in 1999, is currently being updated and is designed to help spread best practice in this area and to support the creation of matching services.

The effect of the amendment would be to require local authorities to give reasonable preference, when allocating accommodation, to people who need to move to meet their access needs. The Government agree, but that is already covered in Section 167(2)(d) which includes people who need to move on medical grounds.

The amendment also proposes that a local authority's allocation scheme may make provision for a disability housing service. The disability housing service includes the creation of a register or database of existing or planned accessible residential properties in the local authority area, whether purpose-built or adapted, with details of the access features relating to each property, a register of disabled people who require accessible housing and a service of matching disabled people to properties so recorded.

The Government have a number of difficulties with what is proposed. The Government repealed the duty to maintain a housing register in the Homelessness Act 2002. Nevertheless, local authorities still have the power to maintain registers and our code of guidance on allocations explicitly recognises that local authorities may want to continue to keep registers of applicants.

As I have already said, the code also encourages local authorities to maintain lists of social housing properties that are suitable for disabled people. That approach was taken because we believe that, if a local authority has a choice about keeping a register, then it should be included in statutory guidance rather than in primary legislation. We believe that local authorities should be able to decide what registers they keep and what should be on those registers. The amendment is too prescriptive as it describes in detail what should be kept on those registers, including information that is clearly not relevant to a local authority's statutory functions.

The Government are of the view that the best approach to matching services is to let applicants bid for properties under a choice-based letting scheme. Such schemes provide for information to be available on each property, including the extent of any adaptations, allowing those with disabilities to select appropriate housing at the time of its availability. We have set a target that all local authorities will have adopted a choice-based letting scheme by 2010.

5.15 p.m.

There are likely to be significant cost implications to a local authority should it decide to set up a disabled housing service, as proposed in the amendment. It is also unclear how local authorities would obtain the information required by the registers, other than the information being voluntarily provided. Verification of that information would involve carrying out expensive and comprehensive stock condition surveys.

I would like to give some assurance that, in terms of new housing, we are also taking action in a variety of ways to increase the supply of housing accessible to people with a disability. All newly built homes are required to comply with Part M of the building regulations. Those provisions are expected to enable occupants to cope better with reduced mobility and live longer in their own home. The Government require that all schemes funded through the Housing Corporation comply not only with the building regulations but with additional criteria for accessibility. Our reform of the planning system also seeks to introduce a statutory requirement for those responsible for preparing regional spatial strategies and local development documents in England to undertake those functions with the objective of contributing to the achievement of sustainable development.

Our consultation draft, Planning Policy Statement 1, makes it crystal clear that development plans should contain clear and comprehensive inclusive access policies. Not only are we taking action to improve accessibility in relation to new developments, but we have substantially increased government resources available to fund adaptations to the existing stock to meet the needs of disabled people. The disabled facilities grant programme provides funding for local authorities to help disabled homeowners and tenants to pay for essential adaptations to their home. Since 1997, government funding for disabled facilities grants has nearly doubled, rising to £100 million a year. This year, over 33,000 homes will be adapted to meet the needs of disabled people through the programme, a 50 per cent increase on 1997–98.

The voluntary approach is the best one—it enables choice. We have committed, and are committing, substantial resources to ensure local authority stock is better in terms of disabled access, and a lot of progress has already been made. Many valuable and important local initiatives have been adopted by local housing authorities and the registered social landlords sector. So, while I appreciate the import and value of the Amendment and the encouragement it generally provides, it is probably not the best way forward at this stage.

Baroness Darcy de Knayth

I thank the noble Baroness, Lady Hamwee, for her support, and for underlining the fact that the register would be discretionary, so that local authorities would not be concerned about that aspect. I also thank my noble friend Lord Best for his informed support, and if the Joseph Rowntree Trust, with all its experience, feels a register would help enormously, I am prepared to go with that. As I said, housing is not my thing. I thank the Minister for his reply. He said that medical grounds were already mentioned. That is the whole point—we want the social model of disability, not the medical one. If "access needs" are mentioned, the disabled person's profile is raised, and their requirements are more widely known, which is important. He said the register might be expensive, but there is a great deal of information and support from HoDis and others, and many authorities have introduced a register and felt that it was a good thing. I appreciate the money that has been spent on housing for disabled people, but then, as my noble friend Lord Best pointed out, a register would save people time in finding a suitable property that had been adapted. A register would be extremely valuable. I mean that, even though I come completely new to this; I am enthused.

If the Minister cannot say "Yes" at the moment, or if he will be busy at his party conference—something from which Cross-Benchers are gloriously exempt—perhaps his officials and ours could pursue the matter further to try to make a little progress before Report.

Lord Bassam of Brighton

I am not the policy holder in this matter, but I understand the point being made. In my experience as a politician, much of my caseload related to housing, so I am not unfamiliar with the problems that can be encountered by people who need homes with better disabled access and so on. Occasionally, I was frustrated by the fact that, although stock had been adapted, it had perhaps been wrongly allocated. My noble friend Lord Rooker and I are happy at least to reflect on the comments made today and to see what more can be done.

Baroness Darcy de Knayth

I am very grateful to the Minister. I did not mean to imply that he did not understand or that he was not sympathetic. I know that the noble Lord, Lord Rooker, is too. I thank him very much for that little glimmer of light; perhaps the door is open a chink. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Darcy de Knayth moved Amendment No. 229:

After Clause 186, insert the following new clause—


(1) The Disability Discrimination Act 1995 (c. 50) is amended as follows.

(2) After section 24 there is inserted—


(1) This section applies where—

  1. (a) a disabled person occupies premises under a lease or is considering taking a letting of the premises;
  2. (b) but for this section, he would not be entitled to make a particular alteration to the premises or to the access and approach to the premises; and
  3. (c) the alteration is one which he proposes to make in order to—
    1. (i) enable him to enjoy the premises;
    2. (ii) enable him to make use of any benefit or facility, which by reason of the letting is one of which he is entitled to make use;
    3. (iii) facilitate his enjoyment of the premises or his making use of any such benefit or facility;
    4. 1417
    5. (iv) enable him to become a person to whom the premises are let; or
    6. (v) facilitate his becoming a person to whom the premises are let;
    but would be of little or no practical use to him or if he were neither a person to whom the premises are let nor an occupier of them or if he were not considering taking a letting of the premises.

(2) Except to the extent to which it expressly so provides, the lease shall have effect by virtue of this subsection as if it provided—

  1. (a) for the disabled person to be entitled to make the alteration with the written consent of the lessor;
  2. (b) for the relevant disabled person, or someone acting on his behalf to have to make a written application to the lessor for consent if he wishes to make the alteration;
  3. (c) if such an application is made, for the lessor not to withhold his consent unreasonably; and
  4. (d) for the lessor to be entitled to make his consent subject to reasonable conditions.

(3) Regulations may make provision—

  1. (a) as to circumstances in which it is, or as to circumstances in which it is not, reasonable for a lessor to withhold his consent, and
  2. (b) as to conditions which it is always, or conditions which it is never, reasonable for a lessor to impose.

(4) In this section— lease" includes a tenancy, sub-lease or sub-tenancy and an agreement for a lease, tenancy, sub-lease or subtenancy; and sub-lease" and "sub-tenancy" have such meaning as may be prescribed.

(5) For the purposes of this section, premises shall be treated as let to a person where they are a commonhold unit of which he is a unit-holder; and "commonhold unit" and "unit-holder" in relation to such a unit, have here the same meaning as in Part 1 of the Commonhold and Leasehold Reform Act 2002.""

The noble Baroness said: Amendment No. 229 is probing—but perhaps more of a prodding amendment, as I hope that the Minister will agree to take the issue forward. The Joint Committee on the Draft Disability Discrimination Bill followed the Disability Rights Task Force in recommending that the forthcoming Bill should include specific provisions preventing landlords and management committees unreasonably refusing consent to disabled people who need to make physical changes to their properties, including communal areas, in order to enjoy fundamental rights of access. Some 17,000 disabled tenants living in unsuitable accommodation report that they have been prevented from making essential alterations or adaptations because their landlord has refused consent.

The committee asked whether adequate provisions existed in current housing and land law, as the Government claim, to address the problem. The resounding reply from the Disability Rights Commission, the Law Society and housing associations was "No". So it looked at the matter in great detail and found that the existing provisions were over-complex, partial and unenforceable. For instance, at present, the right to make alterations in many leases will be confined to the actual premises leased, so a totally accessible flat may be of little use if you have to negotiate a short flight of steps to get in. Even if the lease permits you to make reasonable adaptations to the property itself, there is no statutory guidance on the weight to be attached to the disabled person's access needs as opposed to the property interests of others. Decisions in other areas of land law are not encouraging.

Current law also fails to deal with the common and desperate situation where a disabled person is ready to buy a leasehold flat or home and cannot gain consent from the management company to make alterations, often relating to getting to and through their own front door. Management companies can turn down requests for the flimsiest of reasons because there is no clear statutory guidance.

While the Housing (Scotland) Act 2001 protects disabled tenants in social housing from landlords withholding consent unreasonably, disabled tenants in England and Wales are not afforded the same protection. The Landlord and Tenant Act 1927 does not apply in England and Wales, if the lease is silent on the issue of alterations or improvements, or if it contains an absolute prohibition against them. It applies only if there is a clause in a lease making the carrying out of improvements conditional on the landlord's consent.

In sum, the current provisions are a nightmare for disabled people and landlords alike, and there is no example of a disabled person successfully using them to enforce a right to make reasonable adaptations. Quite why the Government feel that they suffice is unclear.

The amendment would operate like the existing provisions in the Disability Discrimination Act, which enable service providers and employers to approach their landlords to make reasonable adjustments to their property. The reasonableness criteria, which would need to be expanded upon in regulations, would give greater clarity and ensure a better balance between the rights of disabled people and those of landlords.

A small pub or shop may now have to pay to make an adjustment for one visit by a disabled person under the DDA. A person living in his own home has no rights at present even to pay for his own adjustments. I stress that the amendment does not require any landlords to finance alterations.

The Disability Rights Commission would also be empowered to issue guidance and support disabled people to bring cases—something they cannot do under housing or land legislation.

I appreciate the need not to overload the statute book with unnecessary regulation, but in this case, all parties would benefit from new provisions in disability rights legislation. I hope that the Minister can give an encouraging response and that he will see that his department gives this further thought in relation to the new disability Bill. I beg to move.

Baroness Hamwee

Again, the Liberal Democrat Front Bench supports this amendment. It may be probing, it may be prodding—perhaps it could be prompting.

Lord Bassam of Brighton

This is an interesting amendment. It could, I suppose, be considered for the draft Disability Discrimination Bill, which is already being considered by the joint parliamentary scrutiny committee. The Government have already published their response to a report by that committee, in which a similar proposal was made. I am afraid that what I have to say now is therefore a reflection of that response.

Amendment No. 229 seeks to put landlords under a duty not to refuse consent unreasonably if a disabled person, whether a tenant or occupier, or a disabled person intending to become a tenant, wants to make an alteration to the physical features of a property that they are renting or proposing to rent. The consent must be given and may be subject to reasonable conditions. The reasonableness of a refusal or of the conditions that may be imposed may be the subject of secondary legislation.

It is rather odd that the amendment would enable a person who has not yet rented the premises to have a right to make alterations—that is one of its defects. Of course, the amendment would allow the landlord to impose reasonable conditions when giving any consent. Even so, this highlights some rather difficult contractual arrangements that would need to be carefully considered. They would have to be considered against the limited security of tenure that tenants in the private rented sector have and the fact that turnover in that sector is of the order of 40 per cent per annum.

The amendment is also silent on how the costs of such alterations are to be met. Perhaps it is envisaged that this could be catered for by secondary legislation. However, I think it is important that we address costs, because that is the issue on which the effectiveness of any such provision must rest.

In response to a similar proposal for the draft Disability Discrimination Bill, we have said that it provides no new rights to replace those that currently exist. For council tenants and Rent Act tenants, these are provided under the Housing Acts 1980 and 1985. For private tenants there is, of course, the Landlord and Tenant Act 1927.

The 1927 Act provides that landlords should not unreasonably withhold licence or consent to the making of improvements by a tenant, notwithstanding any express provision to the contrary in the lease. However, the 1927 Act does not go on to make clear provisions for costs. It says that the landlord may require, as a condition of such licence or consent, the payment of a reasonable sum in respect of any damage or diminution in the value of the premises or any neighbouring premises belonging to the landlord, and of any legal or other expenses properly incurred in connection with such licence or consent.

The Act also allows the landlord, in the case of an improvement which does not add to the letting value of the holding, to require an undertaking on the part of the tenant to reinstate the premises.

I can see that the financial side of any licence or consent that may have been made under the 1927 Act is likely to be little used. But I do not see that the amendment addresses that or necessarily makes any new provision that should displace it. It therefore needlessly duplicates the provisions of the earlier legislation.

I am sorry that my response is somewhat negative, but I am not sure Ciat this is the right way to proceed with this issue. I think that there are fundamental flaws in the amendment which need to be addressed before any progress can be made in this respect.

5.30 p.m.

Baroness Hamwee

If flaws in the amendment represent one of the hurdles that needs to be overcome, it would be helpful to hear what the flaws are so that technical alterations might be made.

Baroness Darcy de Knayth

I thank the noble Baroness, Lady Hamwee, for her initial prompting and support and for the suggestion that she has just made. I thank the Minister for his reply, which was not very encouraging.

The tenant can pay costs. It would be reasonable to make consent contingent on the disabled person covering the cost of reinstatement if that were necessary. Reinstatement would be less likely if one had the register anyway, because a landlord might be able to let the property to another suitable user.

We must look into the claim that 1927 Act does not apply. That is a serious issue. That claim was also made in the Government's response. There is clearly not a meeting of minds. Land and house law are not clear. I have said that decisions in other areas of land law are not encouraging. Those decisions suggest that very little weight will be attached to the desirability of facilitating access for disabled people and their interests will be easily overridden. In Drury v McGarvie, for instance, it was held that badly constructed gates did not amount to an obstruction of a disabled person's right of way across farmland to his home, because they would not have constituted a material inconvenience for a person of average strength and agility or the ordinary, able-bodied adult.

If that kind of decision is going to be applied to someone who can get into an accessible flat, but that flat has a flight of steps up to it, we will not get very far. As the noble Baroness, Lady Hamwee, said, perhaps the Minister's officials, the DRC and other officials could meet to thrash out the issue and construct a viable amendment to the disability rights Bill.

Lord Bassam of Brighton

I always want to be as helpful as I can with these issues and perhaps that is a suggestion that we can pursue. I am not sure that the approach in the legislation is the right one. I offer that as genuine advice.

Baroness Darcy de Knayth

I thank the Minister for that reply. He may be right. I hope that we can succeed in the end. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hanham moved Amendment No. 229A:

After Clause 186, insert the following new clause—


The provisions of Chapter 3 of Part 6 of this Act (mobile homes) shall apply equally to permanently moored serviced residential houseboats."

The noble Baroness said: What seems an eon ago, we were discussing park homes. Amendment No. 229A would extend the protection and safeguards that we have just discussed for residents of park homes to residents of permanently moored, serviced houseboats.

I stress the words "permanently moored" and "serviced" because there has been much correspondence relating to interfering with navigation on the waterways. Those boats are moored on permanent moorings and they do not move. To all intents and purposes, they are permanent accommodation on water.

At Second Reading, we were delighted that the Government accepted that the provisions for mobile homes could be extended to houseboat residents and we believed that we had won a famous victory, which would be quickly confirmed in Committee—only to find that it was a Pyrrhic victory. The fastest U-turn in history took place, via a letter from the noble Lord, Lord Rooker, which stated that the acceptance by the noble Lord, Lord Bassam, of our case was a mistake. We were enormously grateful to the noble Lord when he accepted the view that he might have indulged in some wishful thinking. The Bill is an appropriate vehicle by which the matter can be resolved.

It is an important issue. I readily admit that it has arisen because of the concerns of residential boat dwellers in Cheyne Walk and the Royal Borough of Kensington and Chelsea, where I am an elected councillor. However, clusters of permanently moored houseboats appear across the country and there is no—or none that I could find—legislation or existing statutes which are germane to their situation. They have no protection in law, which is exactly the same situation that is now being addressed for mobile home owners. The houseboat owners who have briefed me have had an inordinate amount of discussion with the Port of London Authority, which licenses the moorings' owners and has not been particularly bothered or concerned by the problem; Defra, which has now concluded that it is not the right department; and the ODPM. Each of these has managed to pass the buck.

This amendment may not precisely do the trick but we must not let the opportunity of the Bill pass without finding a way of dealing with these dwellers, who appear to be outside every form of protection and legislation and who are vulnerable to abuse of their right to live in and enjoy their residence free from harassment and fear of eviction. If the Minister cannot accept our thoughts today, then I ask him to enable his lawyers during the coming Recess weeks to meet those who seek to have these matters rectified and to come up with an answer that will do it.

I tried to put down a much longer amendment, which would have laid out the conditions and regulations for the relationship between the moorings' owners and the moorers but, at that stage, I could not overcome the obstacle of the Clerks, who felt it was not appropriate. At Second Reading, Members on all sides of the House recognised that there was a problem. There is an opportunity now to put it right. I beg to move.

Baroness Hamwee

I put my name to this amendment. I, too, was frustrated over what amendment should be tabled and, indeed, before we started the Committee stage I tried to establish whether we should be seeking an amendment to the Long Title of the Bill as I thought that it might be raised as an obstacle against extending the provisions of the Bill to houseboats and houseboat owners. There was the inevitable circular discussion because it depended on what we wanted to do within the Bill.

Be that as it may, we talked yesterday about the public's views of politicians. It is something that we talk about from time to time in a rather self-deprecating fashion. I am sure we all think, "That does not quite apply to all politicians and I am one of the exceptions". In this House, we are in danger of confirming the sense of helplessness that non-politicians must have. The noble Baroness has referred to what happened at, and immediately after, Second Reading. I know that the Minister has certainly had one, and I am sure far more than one, letter from a houseboat owner. I shall quote from it because I would like to see the words of a houseboat owner quoted in this context. I am aware of the time, so I am not going to take very long: I am sure you can imagine the sense of enormous disappointment among residential houseboat owners that just when it looked as if the injustices they have suffered for so many years were to be put right you are apparently going to overturn this at the last minute. Throughout the discussions a number of us have had with politicians from all parties and with senior civil servants we have always received total support for the case we have been putting forward". It always seems to me that problems that affect one's own home must be experienced particularly intensely. They are with one all the time. Therefore, for Opposition Members of your Lordships' House not yet to have found a way to persuade the Government that for the Office of the Deputy Prime Minister to refer the people involved to Defra and for Defra to tell them that it is a matter for the Office of the Deputy Prime Minister leaves us wondering what we can do to get bits of government not just to talk to one another but to find a solution to a very real problem.

Baroness Miller of Chilthorne Domer

I should like to underline the first point made by my noble friend Lady Hamwee that this problem has been going on for a very long time. I was a houseboat owner at the end of the 1970s and 1980s. I am glad to say that my landlord—the 3rd Osterley Sea Scouts—being a charity, actually treated its houseboat tenants very well. But I am aware of a number of cases where that was not the case, and not only up and down the Thames. I believe that the noble Baroness, Lady Hanham, referred to the houseboat dwellers of Chelsea.

At the end of the 1980s, the Select Committee in the other place took extensive evidence from a resident houseboat owner on the Cheshire Ring. I know that others gave evidence too, when they were examining waterways issues, of the sort of harassment that can happen. Houseboat owners—all sorts of dwellers—are particularly vulnerable. It is very easy to cut hosepipes, and to loosen ropes. I do not need to catalogue the sorts of harassment that can happen, because Members of the Committee can probably imagine it. But the time must have come for the Government to address the matter, and this seems the perfect Bill in which to do so. I welcome the amendment.

Lord Rooker

I am not sure which amendment the noble Baroness was speaking to—Amendment No. 229A or 229B—because it is the latter that deals with harassment. However, I might as well refer to that amendment, as it is only a couple of paragraphs. The Protection from Harassment Act 1997 is not limited to residential occupiers of any particular type but extends to members of the public generally. To that extent, it must include houseboat owners, so Amendment No. 229B is unnecessary. I cannot speak as a lawyer on a particular case, and only the courts could give a definitive view, but the Protection from Harassment Act 1997 covers the general public, so it must cover houseboat owners.

On Amendment No. 229A, the substantive amendment, I would like to get a certain matter out of the way. A genuine mistake occurred on Second Reading. Let us not make a big fuss about it—it was a genuine mistake which I corrected immediately. We did not give anyone a false impression; I do not want anyone to argue that we lied or misled them. It was a genuine mistake at the Dispatch Box, and we corrected it straightaway.

The amendment would give the same rights as apply to park home occupiers to residential houseboat occupiers. Currently, the rights of residential houseboat occupiers will depend, first, on the terms of the agreement with the owner of the mooring—so there is an issue there. Secondly, it will depend on the terms of the agreement between the occupier and the owner of the houseboat, because they could be different people.

There is no statutory security of tenure, and the relationship between the parties is dependent on the terms of their own contractual arrangements. The normal rules of contract law will apply, along with the Unfair Terms in Consumer Contracts Regulations 1999, which is policed by the Office of Fair Trading. The proposed amendment would not in fact provide the security of tenure desired by houseboat owners.

There is currently no statutory security of tenure relating to houseboats. The amendments in the Bill for park homes consist of amendments to the Mobile Homes Act 1983 and the Caravan Sites Act 1968. To apply the clauses to houseboats as well would be meaningless, because these Acts do not apply to houseboats.

It is the department's view that houseboat residents are already covered by the Protection from Eviction Act 1977. This has two main consequences: first, that occupiers are protected from unlawful eviction and harassment and, secondly, that possession can occur only after an order for possession from a court has been obtained. That is the general view; on the specifics, as Members of the Committee must understand, it would be down to the case in court.

We are aware of worries about the adequacy of the law relating to houseboats, and we are currently in discussion with our colleagues at both the Department for Transport and the Department for Environment, Food and Rural Affairs, who lead on policy involving British Waterways and the Port of London Authority. Notwithstanding what has been said here today, we are in discussion with those two departments.

5.45 p.m.

Security of tenure of houseboats is a complex issue. Someone said to me that they are effectively parked on the highway. I have a list of different kinds of moorings that I could read out. It is amazingly complicated. As a result of the discussions, DEFRA has commissioned a scoping study on how the issues can be effectively dealt with. That will provide an opportunity to establish the size and scope of the issue and identify any necessary legislative change, for which we can then press.

If we accepted the amendment now we would be giving houseboat owners ill-considered legislation, because it does not apply to them. We have made provision for park home owners in other Acts of Parliament that do not apply. I do not know anything about one department passing the buck to the other; I am giving the Government's considered view. We are in discussion with colleagues in both DEFRA and the Department for Transport and the study commissioned by DEFRA will aim to satisfy the problems identified.

Baroness Hanham

The trouble is that the right hand does not know what the left hand is doing. The reason why I separated Amendments Nos. 229A and 229B was specific: I needed the Minister's categoric assurance—which he has now given—that the Protection from Eviction Act 1977 covered those resident on permanently moored houseboats. The reason I asked for the assurance and tabled a question—I did not know which would come first—is because council and legal opinions have varied. I am aware of a case where a definitive answer matters urgently. I am grateful to the Minister for his explanation that the Act applies.

Regarding Amendment No. 229A, these discussions have been going on an inordinately long time with people passing the matter on. The Minister says that he does not know anything about it, but I can assure him that departments have been involved one after another and one after the other have said that they have no role. The DEFRA role is on waterways. These people are permanently moored. The Minister almost made the case that they were parked on the highway, but actually they are parked on the sidelines of a highway. We cannot move them; if we move them they will sink. They have flowerpots and so on all around them. They are to all intents and purposes permanent residents.

They are not covered by the Housing Acts, however we look at it, which is what they need. I do not think that they are looking for statutory security of tenure but the recognition that they can be covered by the Housing Acts for all intents and purposes. That is what we need to consider. I accept that my amendment is inappropriate. When I read the preceding clauses on mobile homes I realised that it was not appropriate, but it was the only way I could get the issue into the Bill. I wanted to propose longer clauses, which would have explained the whole matter, but they were not allowed. Now I will have to try to get my new clause back in on Report.

It would be helpful if the ODPM lawyers would talk to permanently moored houseboat owners, which they may be starting to, because they are distinctly left out of any legislation. It is obvious that this is the legislation to get provisions into. We have about three-and-a-half weeks before Report stage and I hope we might be able to conduct some discussions that would tell us how to get appropriate amendments into the Bill. In the meantime I thank the Minister for his reassurance about the Protection from Eviction Act and the Protection from Harassment Act 1997. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 229B and 229C not moved.]

Clause 187 agreed to.

Baroness Hanham moved Amendment No. 230:

After Clause 187, insert the following new clause—


(1) For the purposes of—

  1. (a) improving the energy efficiency of residential accommodation;
  2. (b) increasing the comfort level of occupants of residential accommodation; and
  3. (c) alleviating fuel poverty,
the Secretary of State shall take reasonable steps to ensure an increase in residential energy efficiency of at least 20% by 2010 based upon 2000 levels.

(2) In this section— fuel poverty" has the same meaning as in the Warm Homes and Energy Conservation Act 2000 (c. 31); and residential energy efficiency" means the energy efficiency of residential accommodation.

The noble Baroness said: I have pruned enormously what I was going to say on the remaining amendments so I hope that we can scramble through them.

The target of a 20 per cent improvement in energy efficiency by 2010 was first set by the Conservative government in 1996 under the Home Energy Conservation Act. Then the target was 30 per cent by 2010, but 30 per cent from 1996 is almost the same as 20 per cent based on 2000 levels. For years that target was accepted by this Government.

The 20 per cent improvement based on 2000 levels is just another way of saying that the target is the saving of 5 megatonnes of carbon from domestic energy efficiency by 2010. A recent publication from the Association for the Conservation of Energy explains in detail the 15 categorical assurances given to the industry that the Government were committed to achieving the 5 megatonnes of carbon savings from domestic energy efficiency specified in the White Paper. Six assurances were given by four separate government Ministers, including two in this House by the noble Lord, Lord Whitty, and by the Permanent Secretary at the DTI and by the Treasury. That is all very specific.

In the event, on 26 April the Government abandoned all those assurances and set the target as the saving of 4.2 megatonnes of carbon by 2010—a reduction of 16 per cent—in their energy efficiency implementation plan. Given this explanation I hope that the Government will lend their support to Amendment No. 230 today to ensure that the aim is increased to the original 20 per cent figure. I beg to move.

Lord Redesdale

I rise to speak to Amendment No. 230ZA standing in the name of my noble friend Lady Maddock. I wish to speak briefly also to Amendment No. 230 with which it is grouped as that is an extremely good amendment. However, I should add one small caveat; namely, if all the new builds that took place met the required energy efficiency standards and builders did not cut corners, an enormous amount of energy efficiency would be gained. One of the major problems in this country is that there are not enough building inspectors to ensure that all the new builds match the guidelines set out. It would be helpful if something could be done about that. I plan to bring forward an amendment at a later stage of the Bill to prompt the Government on that issue.

Amendment No. 230ZA seeks to deal with the issues of efficiency and fuel poverty. One way of doing that is to provide an alternative source of energy than electricity and gas from the grid. One of the major problems connected with fuel poverty is that many people are not connected to the gas main and therefore have to purchase power sources that are extremely expensive in order to keep warm. Many tried and trusted technologies could be installed. The two areas considered in the amendment are micro combined heat and power and domestic heat pumps.

Domestic heat pumps will be fairly difficult to install except in new builds. However, there are alternatives not mentioned in the amendment such as photovoltaics and solar heating panels which could be installed on almost any building in the country and would significantly cut the amount of electricity and heat energy required by many people in this country.

One of the reasons for raising this issue is that there is a small problem of joined-up government. As was mentioned earlier, the introduction of many of these technologies requires an up-front capital cost which many people would find difficult to meet. Grants are available. However, those grants are made available by the DTI not by the ODPM. That seems to be one of the major problems with the two schemes. The ODPM introduced this Housing Bill but the DTI should have had a lot of input in terms of government strategy on renewable energy sources.

My specific area of concern was mentioned by the Prime Minister. We are pumping out a large amount of carbon through inefficient energy resources such as boilers. It is unfortunate that the Prime Minister should mention that aspect, which I agree is important, but at the same time the clear skies grant is being cut from the amount that was available two years ago to a much more insignificant sum at present.

If the Government really are serious about cutting carbon emissions and increasing renewables such as photovoltaics and micro-combined heat and power, they are going to have to increase the amount of money available. The amendment refers simply to a strategy, but this is an area that we feel very strongly about and which the Government are going to have to take seriously and fund in the short term.

Lord Rooker

Coming back to energy, Amendment No. 230 would place an obligation on the Secretary of State to take reasonable steps to ensure an increase of at least 20 per cent in residential energy efficiency by 2010. I am not going to bandy statistics, but I should point out that the existing aim set out in the energy efficiency plan of action—it was only published in April this year—to secure an annual carbon saving from the UK household sector of approximately 4.2 million tonnes by 2010, is indeed broadly equivalent to the 20 per cent improvement sought through this amendment. Furthermore, the Government's existing aim allows for the flexibility of review and, if necessary, an increase in the aim.

We are already doing a great deal to improve energy efficiency in the residential sector. Key to this is our determination to implement the decent homes standard, with its commitment to ensuring good standards of heating and insulation, and in that way supporting the Government's drive towards the elimination of fuel poverty. I will have more to say about that when I come to Amendment No. 232.

The Government strongly believe that there should be a commitment to a level of carbon savings from domestic energy efficiency. We already have a mechanism for giving effect to that commitment: the Sustainable Energy Act 2003, under which my right honourable friend the Secretary of State for the Environment, Food and Rural Affairs published an energy efficiency aim for England in the energy efficiency plan of action earlier this year. That makes provision for a review of the commitment, and that is the sensible approach to setting the targets. In other words, the place for doing that is the Sustainable Energy Act 2003, and not this Bill. It is a more appropriate vehicle. We are not going soft on the issue, believe me.

The noble Lord, Lord Redesdale—I cannot resist this—waxes lyrical about the Department of Trade and Industry. I thought this was the department his party wants to abolish to get all the savings. Of course, we know that if they were abolished, all their work would be spread around Whitehall, so there would be nothing like the savings we have heard being pontificated about. Now I have caused myself a problem, because he has got up to intervene.

Lord Redesdale

I was dealing with the reality that the DTI is in existence and they are the ones who deal with the Clear Skies scheme, an excellent scheme which I hope the Minister will look into. The point I was trying to get across was that the DTI is spending a pitiful amount on that scheme, which is the main thrust for renewables. If we are serious about renewables, perhaps we could get rid of the DTI and use the entire budget on renewables. I would be very happy if he would agree with that this evening.

Lord Rooker

The point—

Baroness Miller of Chilthorne Domer

I am sorry to interrupt the Minister, but I need to point out that the Clear Skies project, which the Minister undertook to look into, has been reduced in grant, as my noble friend Lord Redesdale says. One of the issues is that one can claim the grant only if one uses one of the registered installers. That is a condition of the grant. However, when you go to the Clear Skies website and look up the list of registered installers, all you get is a box with a cross through it. So, in fact, you cannot use the registered installers, because you cannot see who they are. Then the DTI will claim not many people are taking up the grant, and therefore the demand for it has dropped so less money will be put in. I simply say this to illustrate that all is not well.

Lord Rooker

Absolutely, and I will certainly be happy to come back to this on Report. In respect of Amendment 230ZA, my noble friend Lord Bassam of Brighton reminded me that if noble Lords cast their minds back to before the Summer Recess, they will recall how the House saw a great deal of debate on the Energy Bill. I sat in on a few days myself, muttering under my breath. There are worries about security of supply and such matters, and the Prime Minister addressed some of these issues the other day. The Energy Act includes a duty for the Secretary of State to publish a strategy for the promotion of micro-generation in Great Britain. In drawing up the strategy, the Government will consult fully with interested parties inside and outside government.

6 p.m.

Because I had met its representatives at a fair of offsite housing manufacturers, in July I visited the largest such housing site in Britain, with more than 1,000 dwellings planned and under construction. There will be people living in houses there before the end of the year. When I went there to what was, in effect, the exhibition, nothing was finished; I am not saying that it was that far advanced. However, what was interesting was that I saw for myself an example of micro-generation of electricity, which is what they want to use in the dwellings. It was the first time that I had seen that.

Things are under way; it is true that they are in new dwellings with offsite manufacturers using modern methods of construction, which of course are far more efficient in terms of energy than traditional wet methods. There is work to be done, but I would be more than happy to come back on Report, because I am going to get some advice about one department not knowing what the other is doing, and about a website that invites people to have a look at it but does not give proper information. I shall find out more about the Clear Skies policy.

Baroness Hanham

Because we have been sitting for so long, I shall not prolong the agony of this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 230ZA not moved.]

Clause 188 agreed to.

Lord Rooker moved Amendments Nos. 230A and 230B:

Before Schedule 8, insert the following new schedule—