Joint Committee on Statutory Instruments Second Report


Memorandum from the Home Office


1. The Committee has requested a memorandum on the following two points:

(1) This instrument was laid before Parliament on 17 September 2002 and came into force on 30 September 2002. Explain the reason why the 21 day rule was breached, and why no explanatory memorandum was submitted to the Committee (see paragraph 5.22 of Statutory Instrument Practice).

2. The reason the 21 day rule was breached was to ensure that the Order was in force on 30 September 2002, this being the date that the relevant provisions of the Housing (Scotland) Act 2001 (the "2001 Act") came into force. The 2001 Act introduces a new form of tenancy right in Scotland, the Scottish secure tenancy. This Order provides that a tenancy granted to asylum-seekers under Part VI of the Immigration and Asylum Act 1999 (the "1999 Act") is not a Scottish secure tenancy unless the tenant is otherwise notified by the landlord.

3. If the Order had not come into effect on the 30 September, there would have been a risk of the new form of tenancy right being acquired by asylum­seekers already accommodated by local authorities in Scotland otherwise than under the 1999 Act. This would affect the ability of the Home Office to arrange temporary accommodation for asylum­seekers in Scotland without the new form of tenancy arising.

4. The need for the Order had only been recognised at the end of August, and a number of last minute technical issues needed consideration by the Home Office, Scotland Office and Scottish Executive. The Home Office therefore considered it necessary to depart from the 21-day rule and apologises for any inconvenience caused.

5. The Home Office was aware that an explanatory memorandum needed to be submitted to the Committee, and such a memorandum was drafted. However, due to administrative error, it was unfortunately not submitted to the Committee. The Home Office apologises for this oversight.

(2) Article 3(2) provides that a tenancy mentioned in paragraph (1) becomes a Scottish secure tenancy if the landlord notifies the tenant that it is to be regarded as a Scottish secure tenancy. Is it intended that the landlord should be able to notify either in writing as well as orally? If the intended effect is that the landlord must notify the tenant in writing, should this not have been made clear, either by saying so expressly or by replacing "notify" by "serves a notice on"?

6. The term "notify" was used in Article 3(2) to reflect the wording in paragraph 82 of Schedule 14 to the Immigration and Asylum Act 1999, which inserted paragraph 5A into Schedule 2 to the Housing (Scotland) Act 1987. It is intended that the landlord should be able to notify the tenant orally as well as in writing, so the Home Office respectfully considers that the wording is clear.

11 November 2002

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