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Lord Carmichael of Kelvingrove: My Lords, I am most grateful to the noble and learned Lord the Lord Advocate for bringing this Bill before us today. As he knows, we tried an experiment and spent two days in Edinburgh discussing the Bill. That was a valuable experience for those of us who were not totally familiar with the subject of deer. I hope that we have now resolved the matter. Genuine problems have arisen in Scotland as a result of deer overpopulation; these are longstanding problems. I hope that there will not be another deer Bill until perhaps there is another government.
On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.
Housing Bill
3.41 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, on behalf of my noble friend Lord Ferrers I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.--(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Dubs moved Amendment No. 242C:
Before Clause 89, insert the following new clause--
("--(1) After section 9 of the Housing Act 1988 there shall be inserted--
"Discretion of court not to make an order for possession.
9A.--(1) Notwithstanding section 9(6) above, the court may refuse to make an order for possession if it is satisfied that not earlier than six months prior to the notice of possession proceedings--
(a) the tenant has applied or proposed to apply to the Rent Assessment Committee for a determination of rent; or
(b) the tenant had initiated or proposed to initiate legal proceedings or some other action to secure or enforce his rights as a tenant; or
(c) the tenant had complained to a local housing authority or the local housing authority initiated or proposed to initiate enforcement action; and
(d) the landlord was motivated to seek possession wholly or party by reason of any of the circumstances mentioned in paragraphs (a) to (c) above."
(2) After section 21 of the Housing Act 1988 there shall be inserted--
"Discretion of court not to make an order for possession.
21A.--(1) Notwithstanding section 21 above, the court may refuse to make an order for possession if it is satisfied that not earlier than six months prior to the notice of possession proceedings--
(a) the tenant has applied or proposed to apply to the Rent Assessment Committee for a determination of rent; or
(b) the tenant had initiated or proposed to initiate legal proceedings or some other action to secure or enforce his rights as a tenant; or
(c) the tenant had complained to a local housing authority or the local housing authority initiated or proposed to initiate enforcement action; and
(d) that the landlord was motivated to seek possession wholly or partially by reason of any of the circumstances mentioned in paragraphs (a) to (c) above.".").
The noble Lord said: There are good landlords and there are bad landlords but it is only proper that tenants should have a proper basis for their tenancies and that tenants should have certain rights which they can exercise without landlords being able to retaliate or evict them. The purpose of this amendment is to prevent landlords from evicting tenants because the tenants have tried to stop their landlords harassing them, or have exercised their rights under discrimination law to get repairs done, or to get unreasonably high rents lowered.
The difficulty with the Government's proposals on tenure is that an increasing number of tenants will have even less security than is the case at present. Even under the present system there are many instances where tenants have made perfectly reasonable complaints to landlords and landlords have used their powers to evict the tenants. As I said, there are good and bad landlords. I am sure that I am talking about a minority of landlords but nevertheless it seems to me proper that tenants should have a measure of protection. This amendment would extend the discretion of the courts in not granting possession to a landlord in cases where the courts judged that the eviction was an act of retaliation following a perfectly proper and lawful complaint by a tenant.
It seems to me that under the shorthold scheme there is a limited period of security. This has weakened the bargaining power of tenants. They cannot always with safety negotiate with their landlords for repairs or
There is another problem. Responsible landlords keep their properties in a decent condition and respond to the views and representations of tenants. However, those responsible landlords will face unfair competition from unscrupulous landlords. When local authority environmental health enforcement teams receive a complaint from a tenant they have to act discreetly in order not inadvertently to disclose the fact that they are responding to the complaint of a particular tenant. They have to adopt a generalised approach. This is a simple amendment. It would simply give the individual tenant a little more protection than he has under the Government's policies. I beg to move.
Lord Meston: I support this amendment. It seems to be based on elementary fairness. It would prevent the victimisation of tenants by means of retaliatory action when a tenant has exercised, or has proposed to exercise, his rights and the landlord is shown to have been motivated by the very fact that the tenant has done so. The evidence suggests that this happens all too often. It strikes me that this amendment in some ways replicates the law relating to victimisation in the field of employment. There is, of course, protection from victimisation if an employee asserts his or her rights, for example against discrimination. This amendment seems to me to provide a good way of ensuring that tenants are not unfairly inhibited by fear of possession proceedings when they reasonably assert their legal rights. It therefore provides a useful deterrent against unscrupulous or vindictive landlords. That is not to say that the landlord automatically loses his rights. The court retains the discretion to order possession in appropriate cases.
Baroness Gardner of Parkes: I declare an interest in that I occasionally let property on the basis of shorthold tenancies. I hope that when my noble friend replies he will clarify the position--or perhaps the noble Lord, Lord Dubs, will do so. Could a tenant receive legal aid in this situation? The amendment poses a frightening prospect for a small landlord who perhaps just lets one part of his own property. We have all heard of cases where people who receive legal aid sue business enterprises. The business enterprise in question is in a no-win situation because even if it wins the case it cannot recover its costs. It is important to know the financial implications of this measure. I have sympathy with the point that the noble Lord, Lord Dubs, has made. It is wrong for landlords to be vindictive. I do not know how often that happens but it is a most unfortunate occurrence. However, it would be equally unfortunate if we killed off the assured shorthold tenancy system simply because small landlords in particular could not afford to let their property because of the risk of someone being granted legal aid and therefore being able to take action against them.
The Earl of Balfour: I am concerned about the measure for the following reason. From what I can
Lord Hamilton of Dalzell: I, too, take that view. I also let houses on assured shorthold tenancies. They are becoming the only form of rented accommodation available in the country. I always thought that the Government's object in producing the assured shorthold tenancy was to encourage people to let their houses in the short term. I can see a situation arising where a landlord wants his house back and a tenant at once raises some spurious reason to take the matter to court and object to the landlord having his house back when he requires it.
Lord Monkswell: I support my noble friend's amendment. However, it is worth while pointing out to Members of the Committee on the other side of the Chamber who seem to raise objections that the situation will already be before the court. There is, too, motivation by the landlord. If a good landlord is doing nothing wrong but wishes to gain possession of the property in the normal way, as a result of the amendment there should be no bar, let or hindrance to his doing so.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): The noble Lord, Lord Dubs, explained that the purpose of the new clause is to deal with retaliatory evictions. He has put forward the view that where tenants have little security of tenure, it is difficult for them to use any of their legal rights because if they take action against the landlord they risk losing their homes. He has therefore proposed that where a landlord is seeking possession shortly after a tenant has complained or exercised some legal right, the court should have discretion not to allow possession even though normally it would have no option.
Before dealing with the detail of the new clause it may be helpful if I put the situation in context. The survey of English housing found that most tenants are on good terms with their landlords. Seventy-five per cent. of assured shorthold tenants say they are on good terms with their landlord and only 4 per cent. say they are on bad terms. The balance say they are on neither good nor poor terms. So in only a minority of cases--4 per cent.--is there friction. Similarly, over three-quarters of tenants are either satisfied or very satisfied with their accommodation. Nine per cent. are slightly dissatisfied, and 6 per cent. very dissatisfied. I would not wish to suggest that these are grounds for complacency but it does put the private rented sector as a whole in context. For the most part, people are satisfied with what they get.
The new clause deals with the situation where a tenant may have complained and subsequently feels that the landlord is seeking to end the tenancy because of that. I have some difficulty with what the noble Lords, Lord Dubs and Lord Meston, are proposing.
The new clause will undoubtedly create enormous scope for dispute, delay, and confusion. By introducing an element of discretion into the grounds, which are otherwise mandatory, or the automatic procedure at the end of a shorthold tenancy, it opens up scope for arguments. There are bound to be court cases. And those cases will turn on the question of motivation. Why is the landlord seeking to end the tenancy? Is it due to the tenant exercising some right, or to some other circumstances? It is extremely difficult to establish what someone's motive may be for acting in a particular way. I understand that those who draft laws in this country seek to avoid using the word "motive" for that very reason. Often people act out of mixed motives. The new clause would allow a court to consider any mixed motive. It would put landlords in a very difficulty position, especially if their tenants were apt to complain.
To go down that route would mean not only that we were presented with those practical difficulties; it would also create uncertainty in the minds of landlords. They would be deterred from letting their property. My noble friend Lady Gardner of Parkes rightly raised the question of a tenant on legal aid. It is a fair point. Fear of the cost of gaining possession is one of the major reasons that people with empty properties are reluctant to let them. My noble friends Lord Balfour and Lord Hamilton of Dalzell echoed that point. The new clause might give a difficult tenant a way of retaining possession when the landlord wishes to cease the tenancy and the possession.
I believe that we should not seek to put any obstacles in the way of people with empty property letting them, especially people with one empty piece of property who do not let it as a business as such. Such people are even more put off if they feel that once a tenant gets into the property the legal structure is designed to be almost entirely in the tenant's, and not in the landlord's, favour.
For those reasons, I do not believe that the fears expressed are justified. On the evidence we have, I believe that they are largely unjustified. The new clause would introduce for landlords the fear of another step to be overcome if they wanted repossession. That could inhibit the growth of the private rented sector which we on this side are keen to see.
It is interesting that there are 14,000 successful actions a year on proceedings for possession out of some 2 million tenancies. The picture painted of the country populated by rapacious landlords who take this difficult view of their tenants is quite false. If they have a good tenant, most landlords would wish to keep him, as the bother of finding another tenant is great. I believe therefore that the new clause and the procedures that the
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