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Lord Kingsland moved Amendment No. 16:
- After Clause 125, insert the following new clause—
The noble Lord said: My Lords, I apologise to the House for raising the issue for the first time at the Bill's second Third Reading stage. I notified the Government that I intended to do so and most kindly and generously they said that they would respond in a manner which did not criticise me for the way in which I have drawn their attention to the matter. The issue arises over Crown exemption from the Leasehold Reform Act 1967, the Leasehold Reform, Housing and Urban Development Act 1993 and the Commonhold and Leasehold Reform Bill.
The Crown is not bound by the legislation but has given a voluntary undertaking to enfranchise properties held on long residential leases unless one of two conditions apply: first, where a property stands on inalienable land, which is defined in the Windsor Estate Act 1961; and, secondly, where property or land has a long historic or particular association with the Crown; for example, the garrison at St Mary's on the Isles of Scilly.
It has been suggested that these exemptions conflict with the Human Rights Act on the ground that they violate the right to property under Protocol l, Article 1, of the European Convention on Human Rights, and the prohibition of discrimination, articulated in Article 14. To that extent, therefore, the Bill fails to comply with the Government's undertaking. I shall be most interested to hear the Government's reaction to those suggestions. I beg to move.
Baroness Hamwee: My Lords, before the Minister replies, can the noble Lord, Lord Kingsland, explain whether the provision applies only to this leasehold enfranchisement legislation or to all such legislation? I should have been able to work that out but I have been unable to do so. Although I have a degree of sympathy with the notion, perhaps this is not the moment at which to suggest that an undertaking from the Crown is questioned as implicitly as is the case in the amendment. If the provision applies only to this
Lord Kingsland: My Lords, on a point of clarification, perhaps I may say that it is not the undertaking from the Crown that is criticised; it is the discriminating way in which the undertaking has effect. In the case of some Crown properties, the Crown will honour that undertaking, but in the case of other Crown properties, because of their special status, the Crown will not enfranchise.
Lord Falconer of Thoroton: My Lords, these amendments, as the noble Lord, Lord Kingsland, has said, seek to apply the rights of collective enfranchisement and lease renewal for flats, and the rights of enfranchisement and lease extension for houses to properties held by the Crown.
To pick up the point made by the noble Baroness, Lady Hamwee, these amendments apply our amendments without applying the legislation that they amend. However, I understand from what the noble Lord, Lord Kingsland, said, that they are merely a means of probing how the undertaking given by the Crown operates. I am grateful to the noble Lord for giving us the opportunity to deal with these points.
As the noble Lord, Lord Kingsland, will know, the enfranchisement and lease extension provisions of the Leasehold Reform Act 1967 and the Leasehold Reform, Housing and Urban Development Act 1993 are not directly binding on the Crown. That does not, however, mean that Crown leaseholders do not hold the relevant rights. As the noble Lord knows, the Crown has undertaken to Parliament to comply with the legislation voluntarily. That means that in practice, and subject to certain specified conditions, any leaseholder who would be entitled to enfranchise or extend a lease under either the 1967 or the 1993 Act, if the legislation were directly binding on the Crown, will instead be able to do so under the undertaking. That is all set down in the Crown's undertaking, which was formally announced to Parliament by the then housing Minister, Sir George Young, on 2nd November 1992 at col. 19 of Hansard.
We have been in discussion with the Crown about the undertaking. We wish to ensure that the undertaking continues to give Crown leaseholders the same rights as they would have if the legislation applied directly. As such, we have asked the Crown to confirm that the undertaking will apply to the provisions of the 1967 and 1993 Acts, as amended by the important changes in Chapters 2, 3 and 4 of this Bill. I am happy to say that the Crown has given us that confirmation.
The noble Lord referred to concerns that the present arrangements for Crown enfranchisement are not compliant with human rights legislation and with the ECHR. I know that general accusations have been made to that effect by Crown leaseholders who are dissatisfied with the way in which the undertaking applies to them. However, I am not aware that any specific grounds have yet been put forward to suggest
We are satisfied that the existing arrangements do not give rise to any problems of ECHR compliance. The question of whether or not the relevant Acts directly bind the Crown is something of a red herring. As I have explained, Crown leaseholders have the same rights as other leaseholders. They are simply delivered by a different means. That may be slightly unorthodox but it gets us to exactly the same place.
It is of course true that the Crown undertaking is subject to a number of exceptions. However, that is no different from the approach set down in the legislation. For example, there are exemptions for designated rural areas and charitable housing trusts. Again, the approach is entirely consistent on both sides. I should add that we are content that the exemptions set down in the undertaking are justified. If we were to apply the legislation directly, that would be done on the same basis as is already set down in the undertaking. The outcome would therefore be no different from that achieved under the present arrangements.
It is correct that Clause 106 makes the right to manage binding on the Crown and that Clause 163 does the same for numerous other statutory provisions. That, again, is simply a question of delivery. It ensures that those rights, including a number of existing ones that formerly did not apply are open to Crown leaseholders, as well as other leaseholders. As I said, the undertaking already delivers enfranchisement and new lease rights to Crown leaseholders. As that is already the case, we see no particular need to make statutory provisions to the same effect.
I can appreciate that those who fall outside the undertaking would be unhappy about that. I should say that there are more than two exemptions from the undertaking. The noble Lord referred to two, but he will accept that there are others. It would be inappropriate for me to go into individual cases. However, as I have said, we are satisfied that all aspects of the undertaking are appropriate. If we were to apply those rights directly to the Crown, we would do so in the same terms as already apply under the undertaking. As such, Crown leaseholders are in the same position under the present arrangements as they would be if we were to apply the Act directly because we would do so subject to the same exceptions.
As I said, it is simply a question of delivery. As far as I am aware, the Crown fully undertakes its undertaking. In those circumstances, I respectfully ask the noble Lord to withdraw his amendment.
Lord Kingsland: My Lords, I am grateful to the noble and learned Lord for giving such a full reply to my question. It was certainly not my intention to attack the undertaking. I entirely understand why the Crown is taking that approach, which is perfectly satisfactory and consistent with the convention.
My criticism is rather about the discriminatory way in which the undertaking is applied. The noble and learned Lord rightly said that there are other areas in the Bill that make exceptions to rights to enfranchise, but those areas are explicit and are stipulated in the Bill. The definition of what does and does not fall within the terms of the Windsor Estate Act and the concept of historical inalienability are much less clear. That is why the human rights point has been raised.
It would not be appropriate to put the matter to a vote. I thank the noble and learned Lord for his response and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 132 [Landlord's share of marriage value]:
Clause 133 [Disregard of marriage value in case of very long leases]:
Lord Williams of Elvel moved Amendment No. 20:
The noble Lord said: My Lords, I am moving the amendment simply because I do not think that we had a very serious debate on the previous grouping. I should like to hear what the noble Lord, Lord Jacobs, has to say as I think that he has been shut out on this matter.
"THE CROWN
This Chapter binds the Crown."
6.45 p.m.
After Clause 133, insert the following new clause—
"TAPERING OF MARRIAGE VALUES
For leases where there is an unexpired term of more than 50 but less than 80 years, for each year in reverse chronological order following the eightieth, the amount of marriage value shall be increased by one-thirtieth pro rata, until the fiftieth year at which point the marriage value shall revert to full value."
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