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With this large group of amendments, we have done our best to address concerns raised by noble Lords at different stages, as well as some broader issues of concern. I am sure that most noble Lords will find them welcome. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendments Nos. 160 and 161:
“Guidance5A (1) The appropriate person must give guidance to local authorities about complying with the requirements of paragraph 3 as to consultation.
(2) The appropriate person must publish guidance given under this paragraph as soon as reasonably practicable after giving it.
(3) Local authorities must, in complying with the requirements of paragraph 3 as to consultation, have regard to the guidance for the time being in force under this paragraph.
(5) References in this paragraph to giving guidance include references to giving guidance by varying existing guidance.
On Question, amendments agreed to.
Clause 294 [Requirements to co-operate in relation to certain disposals of land]:
Lord Bassam of Brighton moved Amendment No. 162:
On Question, amendment agreed to.
Clause 295 [Family intervention tenancies: general]:
Lord Bassam of Brighton moved Amendments Nos. 163 to 175:
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““behaviour support agreement” means an agreement in writing about behaviour and the provision of support services made between the new tenant and the local housing authority concerned (or between persons who include those persons);”
““relevant support services” means support services of a kind identified in a behaviour support agreement and designed to meet such needs of the recipient as are identified in the agreement”
““behaviour support agreement” means an agreement in writing about behaviour and the provision of support services made between the new tenant, the landlord and the local housing authority for the district in which the dwelling-house which is to be subject to the new tenancy is situated (or between persons who include those persons);”
““local housing authority” (and the reference to its district) has the same meaning as in the Housing Act 1985 (see sections 1 and 2(1) of that Act);”
““relevant support services” means support services of a kind identified in a behaviour support agreement and designed to meet such needs of the recipient as are identified in the agreement”
On Question, amendments agreed to.
Baroness Hamwee moved Amendment No. 176:
A possession order may not be made by any court in respect of any dwelling-house occupied by any person as their home unless the court is satisfied that to make the order would be compatible with Article 8 of the European Convention and, in particular, that it would be proportionate for an order to be made.”
The noble Baroness said: My Lords, this is another amendment that has been suggested to me by the Housing Law Practitioners Association; I said in Committee that I have always found its amendments very apposite. It is prompted by a judgment which just preceded the Committee stage, and therefore it was just too late to table the amendment at that stage.
In the case of McCann, the European Court of Human Rights ruled in favour of a former tenant that his summary eviction following termination of his tenancy by his wife’s notice to quit was contrary to Article 8 of the European convention, and he was awarded damages. I appreciate that by tabling this amendment I am seeking to do the Government’s
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“The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the convention, notwithstanding that, under domestic law, his right of occupation has come to an end”.
Unless we have legislation, the issue of proportionality to which the court referred is to be considered by the courts when making a possession order in cases where the occupiers would otherwise have no defence in domestic law.
It has been held that there are only two means, or gateways, as they are termed. First, if a seriously arguable point is raised that the law is incompatible with Article 8, the county court should deal with the argument by giving effect to the law by interpreting the law to make it compatible or by adjourning proceedings to enable the compatibility issue to be dealt with by the High Court. The difficulty with that is that domestic law excludes consideration of proportionality in such cases and interpretations may differ. Even then, the incompatible domestic law continues to bind the parties until Parliament has remedied the matter. The second gateway is essentially judicial review, which is not well adapted to this situation. In the McCann case, the court said that it is not well adapted to the resolution of sensitive factual questions better left to the county court ordering possession. In addition, it does not provide an opportunity for an independent tribunal to examine the proportionality issue.
Until we have a change or the House of Lords rules differently, the lower courts are stuck. The only certain way of ensuring that the case I quoted is followed in domestic law is by legislation. I therefore look forward to hearing from the Minister what the Government have in mind to deal with the problem. I beg to move.
Baroness Andrews: My Lords, I appreciate why the noble Baroness has raised this issue, and I shall do my best to address the concerns raised by the ECHR case McCann v UK in which judgment was handed down in May. I do not want to go into great detail about the background to the McCann case, except to say that it involved a complex and unusual family situation. That said, the judgment seemed to raise a point of more general application; namely, whether a public authority tenant can raise an Article 8 defence—the right to privacy—to a possession claim brought against him by his local authority landlord.
In order for the possession procedure to be Article 8 compliant, any interference with Article 8 rights—and there will usually be interference with those rights in proceedings for possession of someone’s home—must be three things: lawful; in pursuit of a legitimate aim; and a proportionate means of achieving that aim. I should point out that while the amendment is very generally worded so it might be assumed that it would apply to all homes, only public authorities would have a duty to their tenants under the Human Rights Act.
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In McCann, the Strasbourg Court held that the interference with Mr McCann’s rights was lawful and pursued the legitimate aim of protecting the rights and freedoms of others. The problem it identified was that the interference was not proportionate to the aim pursued, as the noble Baroness said. The court held that, contrary to the view that had previously been taken by UK courts, a public authority tenant who faces possession proceedings should be able to raise an Article 8 defence to those proceedings and that, where the circumstances were exceptional, he or she should be able to require the court to examine the issue. It is worth observing that the European Court in McCannobserved that,
- “it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue”.
Section 2(1) of the Human Rights Act 1998 provides that any domestic court determining a question connected with a convention right must take into account any relevant judgment of the Strasbourg Court. The McCann judgment itself therefore seems to make this amendment extraneous because domestic courts are obliged to take what Strasbourg said into account. That means that they must already consider whether possession action is the proportionate response.
The amendment proposes that we should go further than that by providing that the court should have to allow a full hearing of any Article 8 defence raised, no matter whether the circumstances of the defendant were exceptional. That is disproportionate because it is likely to complicate and delay the vast majority of cases whereas, as the Strasbourg hearing affirmed, only an exceptional few are likely to hold reasonable grounds. On those grounds, we do not consider that that position could be easily justified. The noble Baroness will know that this issue and the impact of McCann on domestic possession proceedings are currently before the House of Lords in the case of Doherty v Liverpool City Council and that while that is happening I cannot comment on it. Therefore, this is work in progress to an extent.
Baroness Hamwee: My Lords, I am not remotely qualified to take the argument any further, but I shall make one point that I did not make in moving the amendment because it would have been unfair to expect the Minister to respond to it. It is that although the amendment refers to a dwelling house, there could be an equivalent situation in a caravan. I should have thought that similar points arise. In view of the Minister’s explanation of the current position, I am not going to press this matter, but those who are concerned with supporting Travellers will read the comments as if they applied more widely. The choice of the words “dwelling house” was a little accidental, and I should have thought about the need to expand them or define them in some way. I am grateful for the Minister’s reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 11 [Possession orders relating to certain tenancies]:
Baroness Hamwee moved Amendment No. 176A:
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The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 177A and 177B which are in this group, as is government Amendment No. 177, which also covers the issue of applying provisions about security to successor landlords. The Government’s amendment gives the Secretary of State an enabling power to extend the legislation to transferees at a later date. As we are at a late stage of the Bill, my amendment immediately remedies an omission in the changes that have been made to the law relating to tolerated trespassers to cover the lacuna relating to tenancies where a person was formerly a council tenant but his home has been the subject of a stock transfer order.
My amendment would allow a former tolerated trespasser to take on an assured tenancy agreement. The amendment would not only benefit tolerated trespassers in a stock transfer situation, but give the same benefit where a housing association is merged or taken over and there is a transfer of stock between associations. The Minister will argue that it is better to take these things a little more slowly and in a slightly more measured way. I have some sympathy with that, but I use this opportunity to put a bit of pressure on the Government to keep up the momentum. I beg to move.
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Baroness Andrews: My Lords, I am happy to bear the pressure, because we are seeking to do the same thing. The noble Baroness and I both recognise that the existence of tolerated trespassers causes serious problems to tenants and landlords. We want to resolve that to ensure that no tolerated trespassers are created in future.
My amendments would amend Part 2 of Schedule 11 to deal with the situation in respect of tolerated trespassers whose landlord changes. The most usual situation where that happens, as the noble Baroness implied, is transfer from a local authority to a registered social landlord following a large-scale voluntary transfer. Less usual examples are where one RSL takes over the stock of another, or where one local authority is substituted for another as a result of boundary changes.
It is certainly true that, while Part 2 of Schedule 11 provides for all other existing tolerated trespassers to receive new tenancies, it does not at present cover the situation of those who have transferred to a new landlord. That is why we are introducing an amendment today which will put that right.
My problem with the noble Baroness's amendment is not that it is extra speedy, it is just that it is not quite as simple as she suggests. Our aim is to provide certainty as well as appropriate speed. As far as possible, the aim is to provide that both landlord and tenant are in the same position as they would have been had the tenant not become a tolerated trespasser and that neither is disadvantaged by the changes. Paragraph 17 of Part 2 of Schedule 11 provides, with one exception, that the new tenancy will be the same as the original tenancy. That means that a tolerated trespasser of an
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However, the noble Baroness's amendments would provide all transferring tolerated trespassers with a full assured tenancy. We are aware that at the moment different stock transfer RSLs take different approaches to how they deal with occupants who transfer to them as tolerated trespassers. That is part of the problem. Some grant full assured tenancies; others grant only assured shorthold tenancies—usually with a promise of a full assured tenancy after a certain time if the tenant behaves well.
There are also some transferee landlords who fail to provide a new tenancy, or to do anything else to regularise the position for transferring tolerated trespassers. That could happen for different reasons, including an intention by the landlord to request the court to proceed with an eviction. However, as with other existing tolerated trespassers, the court may not grant that request, with the result that the occupant would be left in their current anomalous position. We do not have information on how many tolerated trespassers are in this position.
Specifying in the legislation that all transferring tolerated trespassers should receive a full assured tenancy would not only be out of line with the general thrust of Part 2 of Schedule 11; it would also remove the choices that transferee landlords currently have. This is not possible or right to do without first consulting landlords.
We consulted generally on the provisions in Schedule 11 in August 2007, and the landlords and other housing professionals who responded to that consultation strongly supported remedying the situation for future and existing tolerated trespassers. However, we did not consult specifically on the issue of transferring tolerated trespassers. It would be wrong to make those changes without first seeking the views of RSLs and local authority landlords, because they will be affected by those changes.
We would then extend the consultation more widely to include private landlord representative organisations, as well as tenant and advisory organisations. However, it is true that any resulting addition to the provisions is unlikely to affect private landlords to any great extent.
Although I have to say that there are certain shortcomings with the amendments tabled by the noble Baroness—not with mine—we accept that it is unfair for a change of landlord outside a tolerated trespasser’s control to determine whether they have their tenancy status restored or not. We also recognise that if we do not remedy this situation, it could lead to subsequent litigation.
Amendment No. 177, which I am introducing today, gives the appropriate national authority—the Secretary of State in England and Welsh Ministers in Wales—the power to provide by order that a new tenancy will arise wherever there has been a change of landlord since the former tenant became a tolerated trespasser. It also provides for the order to set out the detail of how that would work. We intend that that should be kept as close as possible to the existing provisions for new tenancies in Schedule 11. Amendment No. 177
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The provisions will relate only to those tolerated trespassers who have not signed a new tenancy agreement with their new landlord. As I said, however, as this is an issue which we did not include in our earlier consultation, and as we recognise that RSLs in particular may have strong views about the form of tenancy which should be granted in this situation, we have provided a delegated power so that provision can be made by secondary legislation, rather than by inclusion in the Bill. As I said, that will allow for a full consultation process to be undertaken before final decisions are made on the detail.
We intend that if, following consultation, the power is exercised, the secondary legislation will come into force at the same time as commencement of the main provisions on tolerated trespassers in the Bill. In that way, we will ensure that transferring tolerated trespassers are not disadvantaged by the timing of these changes. I hope that the noble Baroness will appreciate that.
Given that that will end the current situation in which RSLs have discretion as to what sort of tenancy to offer transferring tolerated trespassers, we think it right that the regulation-making powers should be subject to the affirmative resolution procedure. Amendments Nos. 195 and 198 therefore make the necessary consequential amendments to Clause 318, which deals with orders and regulations.
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