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Housing (Scotland) Bill

Volume 476: debated on Wednesday 11 June 1986

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Read a third time.

Clause 1 [ Extension of right to purchase and of "secure tenancy"]:

moved Amendment No. 1:

Page 1, line 10, leave out subsection (2).

The noble Lord said: My Lords, it may be for the convenience of the House if I speak to Amendments Nos. 1 and 6 together. All the amendments related to housing association matters tabled at this stage in the Bill in my name arise from the amendments your Lordships' House chose to make, against the advice of the Government, at Report.

It is one of the conventions of drafting practice that is is the duty of the draftsman to ensure that Bills pass from one House to the other in a legally correct form; a form in which they could become law. So four of my amendments might be described as drafting. These are two of them. Your Lordships' House decided at Report to exempt from the right to buy tenants of housing associations which have a stock of less than 250 houses. I will not comment on that decision except to say that in moving these amendments I am not in any way indicating that the Government accept or reject that proposal. My purpose is simply to satisfy the legal proprieties.

As it now stands the amendment lies in an odd place in the Bill. Clause 1 is about the extension of the right to buy. Exemptions from the right to buy (and there are a number of them) lie in Schedule 1 to the Bill, which contains the bulk of the amendments to the Tenants Rights Etc (Scotland) Act 1980. Amendment No. 1 thus deletes the exemption for small housing associations from Clause 1 and Amendment No. 6 replaces it, somewhat altered, in that appropriate part of Schedule 1.

The exemption itself has some problems of application in practice. The exemption implies a test of the size of an association upon the result of which depends whether or not the association is in or out of the right to buy. But it is not clear when this test should be applied. If, for example, an association with 260 houses and thus in the right to buy, then received applications to buy from 11 tenants; does the last applicant get his house or not? Assuming that he did not, but that the association, fortified with receipts, built a few more houses, once again exceeding the 250 limit, does the original tenant now have the right to buy?

We felt that this doubt and the possibility that associations might oscillate in and out of the right to buy was unfair and probably unworkable. The draftsman too, felt that the exemption was likely to be regarded as defective in such circumstances. Accordingly, the second amendment in the pair provides that once the right to buy applies, because the association stock has reached 250 houses, it should apply thereafter no matter how the stock numbers may vary. I trust your Lordships will see this as only a minor divergence from the exemption made, and one which is made in the spirit of good drafting. I beg to move.

My Lords, we are grateful to the Minister for the gracious way in which he moved his amendments and also for the spirit in which he moved them. I would also thank him for having written me with more explanation of the reasons for the amendment. He will appreciate that I received the letter on a very complicated subject only today. Without the slightest reservation, I accept his good faith. As he said in the letter, already we know that draftsmanship cannot always express exactly what was meant and intended by the House. However, largely because this House very wisely passed a couple of amendments, there is an opportunity to look at the Bill again in another place.

Although I cannot see any obvious points which will be changed, I hope the Minister will realise, that we on this side and all those who supported the amendments will nevertheless wish to reserve our position until a close examination can be made of the full intent of what is a very complicated and technical amendment. I should like to reinforce the points made by the noble Lord when he said that he trusted that we would take this letter as an evidence of good faith. I have no hesitation at all in accepting his good faith in this matter. I would only thank him for accepting the amendments agreed to at the last stage of the Bill in the spirit in which that was done. I hope the amendments, with the polishing up that his draftsmen have given them, will have the effect that this House intended when they were passed.

My Lords, I should like to thank the Minister for the full explanation he has given us in his letter and in his speech. I am glad to see they are tidying up the Bill so that it leaves this House in a workable form. To me, this is a very good sign because if they were going to remove it forthwith they might not have bothered; so I am full of hope. I think that the amendment limiting the number to 250 is a substantial one, I suppose, in a way and I can see the force of it. Any small association, if it is going to stay small, has its reasons. If it is going to grow, then it comes into the common position with the other associations. I think there are a lot of arguments for fixing a point and leaving it at that. That then leaves it to the associations themselves to decide what they are going to do. I can see the force of moving in and out of the no-selling area. I thank him again for tidying this up. I trust that it has the meaning that I have put upon it, though he has explained that that is not necessarily so.

My Lords, I thank my noble friend for the letter of explanation which he sent and with which I fully agree. He says that there are complications which might arise. They are not the only complications which might conceivably arise under this Bill. There are a great many cases of interpretation which are going to be difficult, I have no doubt. This seems to be a very minor one compared with some of the others which we shall have to ascertain. I am grateful to my noble friend and I have no further comment to make.

On Question, amendment agreed to.

Clause 9 [ Extension of power of islands and district councils to indemnify certain heritable creditors]:

moved Amendment No. 2:

Page 8, line 45, leave out from ("Treasury") to end of line 10 on page 9.

The noble Lord said: My Lords, it may be for the convenience of the House to speak to Amendments Nos. 2 and 9 together, since they cover what is essentially the same point. The effect of these two amendments is to remove the definition of the expression "heritable security" from this Bill and from the Housing Associations Act 1985.

I am advised that it would now be better if the definition of "heritable security" were to be removed both from the Bill and from the Housing Associations Act 1985. We have reached this view because, with the passing of time, the expression has a meaning now generally understood by those using the statute and we believe that it could, in fact, lead to confusion if it continues to be defined in statutes where no deviation is intended from the general and well understood meaning of the expression.

I apologise to your Lordships for bringing forward these minor and somewhat technical drafting amendments at such a late stage, but I am sure that your Lordships will appreciate this attempt to tidy up the statute book in a small way. My Lords, I beg to move.

My Lords, I thank the noble Lord for his explanation. From the information that I have received from those who are particularly specialised in this field, it appears that this is a clearing-up of something that should be welcomed by everyone. Therefore, we see no reason to oppose the amendments.

On Question, amendment agreed to.

Clause 14 [ Payments etc. in Community-based housing associations]:

Page 10, line 44, leave out paragraph ( b) and insert—

("(b) the granting of a tenancy of a dwelling to a person described in subsection (2) below who is not an employee or the close relative of an employee of the association; but only if the granting of the tenancy is made under the published rules required under the Housing Associations Act 1985.").

The noble Lord said: My Lords, this is an amendment which is very close to the one I moved at Report stage and which has become something of a cause célèbre in the whole question of housing associations, the sale of houses and the letting of houses. I withdrew the amendment then, but said that I would, if necessary, reintroduce it when I had received more advice. Since then, far from receiving

advice, I have had a very large correspondence from housing associations in Scotland. If I may mention just a few of these associations, to give the noble Lord the Minister some indication of the feeling in Scotland about the benefits that could accrue, or that are assumed to accrue, to members of housing associations because their families may be given houses, your Lordships will realise why I and others wish to raise this problem again.

One of the representations that I have received is from the Three Towns Housing Association Limited, the three towns being Ardrossan, Saltcoats and Stevenston. The letter is a very heartfelt plea in which the chairman of the committee, Mr. John McDonald, said:

"Residents in the area who are nominated by the District Council, who are legitimately at the top of their waiting list or transfer list are having to be refused houses because they are related to members of the Committee".

In this instance, there is a special case within a special case. He continued:

"As this area consists of small communities, most of whom have remained stable over the years, most residents are inter-related. We are already losing one member of the committee, and possibly several others, who do not feel that they have a right to prevent relatives from obtaining housing in the area".

Although the Minister comes from an area some distance away, I think he will be familiar with the Ardrossan, Saltcoats and Stevenston part of Scotland, and will appreciate that these are three towns where there has been a stable community over a very long period and that the association of families is therefore fairly continuous. Since we have no clear definition of a close relative, it is very difficult to make any decisions in a case like this, unless there is a great deal more flexibility on the part of the Government in this section of the Bill.

Another association which has written to me is the Linthouse Housing Association Limited, who wrote, quite boldly and correctly:

"The time will come when no decent, caring parent will volunteer to serve on such a Committee when they learn that their families are debarred from housing within their place of birth. This can only spell disaster for the future and encourage less suitable types to formulate Committees".

One of the marvellous things about housing associations has been the quality of the people who have set them up. They are people with little or no experience, many of whom had never been to a trade union meeting, a church meeting or any other meeting. But something had motivated them and they became involved in the community, and the more people get involved in the community at this level the richer the community becomes.

These people say, quite rightly, that not only are they leaving their houses night after night to take part in these committees, and worry about problems, which is a big enough penalty for their families, but when their families are due for housing in the area where they wish to be housed they will not be given a house. So it is understandable that they will almost certainly decide that it is not worth the effort and will decide to give up. I cannot say whether others of the same quality will take their place, but if they do they will be in the same position and, when their families legitimately expect to be housed, they will not be given the opportunity because the parents are on the committee of a housing association.

I will end with this letter, although there are many others who have been in touch with me and some of my colleagues over the last few weeks. This is from the Key Housing Association Limited of Broomielaw Street, Glasgow, and they state:

"Key Housing Association was set up by the Scottish Society for the Mentally Handicapped to provide housing and hostels in the community and prevent people from being put in an institution. Key works closely with the Branches of the Society, whose members are parents and close relatives of people with a mental handicap. Approximately 50% of our Committee members have a close relative who could be housed by the Association, but who are denied the right to hostel or housing because of Schedule 16".

They continue:

"The dilemma facing Committee members in this situation is whether to put the welfare of the greater number of mentally handicapped people requiring accommodation before that of their own son or daughter. Where they do this they take the risk of nothing happening whilst they are still serving on the Committee or within a year of resigning, which will necessitate the relative requiring supportive housing or hostel accommodation".

They go on:

"Many of our Committee members are awaiting the outcome of the Lords decision on the proposed amendment to exclude a tenancy from the definition of 'benefit' before they themselves decide on whether or not to resign at our AGM in June. They feel that the price to pay for their contribution to Committee is too high and see no alternative than to withdraw from Committee entirely".

I think noble Lords in all parts of the House have great sympathy with groups such as that, and we have all tried to impress on the Minister the great amount of voluntary effort that has been put in by people in the community who want their own area to be improved. Also, organisations such as the Key Housing Association Limited, spastics groups and other bodies in the community have a specific interest in helping people who, very frequently, by the nature of things are related.

I know that the Minister has been through this before, but there is the old story that dripping water sometimes wears away a stone. Although I would never consider the Minister to be stony hearted, I know that he has a whole department behind him which takes a lot of shifting. I hope that, because of what was said previously and is continuing to be said, as well as the extra evidence we are getting as this Bill proceeds, the more powerful will the case become and the more courage will that give him to agree with what I know he, in his heart of hearts, believes is a very worthwhile amendment. I hope that he will do something about it tonight, or at least promise that we can look forward to the next stage in another place with a little more hope than we have had up to now. I beg to move.

My Lords, I will not take up much time as the arguments have all been put. The noble Lord, Lord Carmichael, said one thing which I think is terribly true. More and more evidence is coming forward to show that the position is upsetting a great many committees. These people are committed because of some personal experience in nearly every case. It is grossly unfair that they should be put in a position different from councillors who let many more houses and are not subjected to this restraint.

Surely it is possible to produce a code of conduct in the case of letting to relations of members of the committee so that this can be done fairly. In fact, very often it goes the other way and being a relation makes it much more difficult to get a house. But to exclude it altogether will I feel destroy a great many well motivated committees. I hope the Minister has reconsidered the position.

My Lords, perhaps I may add a sentence or two to the pleas of the noble Lords, Lord Carmichael of Kelvingrove and Lord Mackie of Benshie. Like both of them, I have been approached by individuals who are involved in the housing association movement. I have the greatest respect for them because they are taking up these duties with a strong community interest. It seems unfortunate that people who are prepared to give their time in the interest of building a community in this way should be discriminated against. That is what it means.

If you are a member of the Glasgow City Council there is no prohibition on your relatives getting a council house. Indeed, it used to be a feature of Glasgow Corporation that being a member of the council was a positive advantage in bringing you up the list, but I shall not dwell on that. I simply want to say that people who do this voluntary service in housing associations should not be discriminated against as they are in this case.

The whole purpose of the housing association is to build communities. People join a housing association in the hope that they will be able to improve the environment of their community. It is surely not a bad thing that they should even hope that their children will not be debarred from occupying some of the areas which by their efforts they have enriched. I appeal to the Minister in this case to depart from his brief and to respond to what is a case of good sense and good humanitarian principle.

My Lords, I could not very easily depart from my brief on this issue because my own view coincides entirely with the brief I have in front of me. I can well understand why noble Lords opposite have repeatedly tabled this amendment in both Houses. There are a number of emotive examples where anomalies could be caused by the strict application of what is, after all, sensible legislation designed to avoid workers in the housing association movement being subject to accusations of self-interest. That is the purpose of the legislation.

But I doubt very much that removing the general controls is the way to tackle the problem found in one, albeit important, sector. It cannot be right that members of a committee of a housing association who are elected from a very limited group within the community should be able to grant themselves the prime gift available to them—namely, a tenancy. While the committee is elected, it is elected by a small band, the members of the association, which does not usually include even all the tenants. This is not democracy compared with that which forms the foundation of local councils, with which some comparison has been made in the past and again tonight.

The safeguard offered by this amendment is that the granting of tenancies would be subject to the allocations policy of the association, but even that is decided by the same small band of members of the committee.

My Lords, I am sorry to interrupt the noble Lord but could he not say further that the rules of the association are monitored and approved by the housing corporation, which is outside the scope of the independent authority of these little associations to which he refers?

Yes, my Lords, but I do not think that changes the principle. The members of the committees are in a position to grant themselves or their relations tenancies. Wherever that pertains, those people are in danger of being accused of showing favouritism towards their own. I do not think that that is right. I do not think it is realistic to compare the situation of those who are elected to those associations with those who are elected to local government. The kind of electorate is quite different; and even if the elections to local government are often on very small turnouts there is the opportunity for a much wider and larger cross-section of the community to take part in those elections. Therefore, I do not think it is a fair comparison or even a comparison at all.

The case of small specialised associations was raised where, for example, parents set up an association to care for their handicapped children in later years. I can see that the rules bite hard. But I see no reason why the parents should actually be committee members. They can still be members of the association without being committee members. The association's committee, which acts as the trustee of the association's interest, could take its decisions in the light of advice from a group of well-informed and interested parents. The committee would grant the tenancies, but not to its members or their families, and the advisers could receive tenancies.

As I said at the outset, I can understand why this amendment has been tabled. I know that there is pressure outside. I know that noble Lords have been written to on this subject. But I cannot accept that all committees of housing associations should come under threat of suspicion merely to avoid what may be a minor administrative difficulty for a few. I am afraid that, although I certainly have great sympathy with those who are involved, I feel that we cannot deviate on this matter. With regret, I must ask the noble Lord to withdraw his amendment. If he insists on pressing it I am afraid I must ask my noble friends to resist it.

My Lords, we are all disappointed, not merely with the Minister's reply but with the fact that the Minister says that he agrees with the reply. We have always had a much higher opinion of the Minister than that. However, the noble Lord made a number of points. He said that the members of the association need not be members of the committee. But everyone knows that in these organisations the committee members are the ones who have the drive. The people within the organisations are likely to be the ones who started it and want to improve their locality.

The noble Lord, Lord Taylor of Gryfe, made a strong point when he said that the housing associations have their codes of practice and letting policy supervised by, passed and accepted by the housing corporation. The housing corporation makes a great effort to ensure that the association letting rules are fair and correct. I say to the Minister that, particularly in the small communities, the strongest possible way of keeping everyone on the committee on the straight and narrow path is public opinion, which will know very quickly if someone gets preference over someone else merely because he happens to be a committee member.

The Minister has never dealt with the question of close friends. There is no way of dealing with it. It has been said by a number of people (including myself on the last occasion) that sometimes friends are much closer than relatives. There is no restriction on them.

I do not like to do this to the Minister because he is normally so sympathetic; but I believe that this House must also show some sympathy with those people who go out night after night in all weathers, leaving their families, to attend meetings; to try to get things done; to lead deputations to local authorities and to the Government; and who spend a great deal of time and energy—and, in many cases, money—in order to build up something for the community, for a part of the community, or for disadvantaged people in the community.

I believe therefore that this House should show a certain amount of empathy with those people by making its view known. Reluctantly, I feel that we must press this matter to a Division.

7.30 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 49; Not-Contents, 53.



Airedale, L.Kirkhill, L.
Ardwick, L.Lloyd of Kilgerran, L.
Blease, L.Mackie of Benshie, L. [Teller.]
Brooks of Tremorfa, L.
Bruce of Donington, L.McNair, L.
Carmichael of Kelvingrove, L.Molloy, L.
Chitnis, L.Mulley, L.
Cledwyn of Penrhos, L.Nicol, B.
Crawshaw of Aintree, L.Phillips, B.
David, B.Ponsonby of Shulbrede, L. [Teller.]
Dean of Beswick, L.
Diamond, L.Prys-Davies, L.
Elwyn-Jones, L.Rea, L.
Ennals, L.Ritchie of Dundee, L.
Ezra, L.Rochester, L.
Ferrier, L.Seear, B.
Gallacher, L.Simon, V.
Graham of Edmonton, L.Southwark, Bp.
Hampton, L.Stoddart of Swindon, L.
Harris of Greenwich, L.Strabolgi, L.
Houghton of Sowerby, L.Taylor of Gryfe, L.
Hughes, L.Underhill, L.
Jeger, B.Williams of Elvel, L.
John-Mackie, L.Wilson of Langside, L.
Kagan, L.Young of Dartington, L.
Kilmarnock, L.


Abinger, L.Lauderdale, E.
Auckland, L.Layton, L.
Bauer, L.Lindsey and Abingdon, E.
Belstead, L.Long, V.
Birdwood, L.Lyell, L.
Brabazon of Tara, L.Mersey, V.
Caithness, E.Murton of Lindisfarne, L.
Cameron of Lochbroom, L.Napier and Ettrick, L.
Carnegy of Lour, B.Perth, E.
Coleraine, L.Plummer of St Marylebone, L.
Colville of Culross, V.
Constantine of Stanmore, L.Renton, L.
Cork and Orrery, E.Renwick, L.
Davidson, V.Rochdale, V.
Denham, L. [Teller.]Saltoun of Abernethy, Ly.
Elliott of Morpeth, L.Seebohm, L.
Glanusk, L.Shannon, E.
Gray, L.Skelmersdale, L.
Gray of Contin, L.Stanley of Alderley, L.
Greenway, L.Stodart of Leaston, L.
Harmar-Nicholls, L.Strathclyde, L.
Hives, L.Swinfen, L.
Hooper, B.Swinton, E. [Teller.]
Hylton-Foster, B.Trefgarne, L.
Ingrow, L.Trumpington, B.
Kimball, L.Ullswater, V.
Kinloss, Ly.Wilberforce, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.38 p.m.

Clause 15 [ Extension of sections 44 and 45 of 1985 Act to Scotland]:

Page 12, line 26, at end insert—

("( ) in subsection (3), at the end there shall be added the words"; and a dwelling is also publicly funded for this purpose if it is in Scotland and housing association grant has been paid in respect of a project which included its improvement or repair or, where it and another dwelling are both provided for letting under the project, the improvement or repair of that other dwelling.";").

The noble Lord said: My Lords, this amendment arises from the exemption from the right to buy for charitable housing associations that the House decided on at Report. Unlike my other housing association amendments, it is not of a drafting nature but is intended to ensure that tenants are treated as evenhandedly as possible.

The amendment's purpose is to extend the HOTCHA scheme—that is, home ownership for tenants of charitable housing associations—to tenants of charitable housing associations whose houses have been improved or repaired with housing association grant. It is needed because a number of houses that were taken out of the right to buy by the general exemption of charitable housing associations are older houses that the existing provisions relating to HOTCHA do not cover. Thus, tenants of those houses would, without the amendment, receive neither the right to buy nor the transferable discount available under HOTCHA. They would understandably be angry to have their aspirations so thwarted.

In my efforts to explain the scheme succinctly to the House at Report stage, I may have oversimplified it, and I welcome the opportunity to put matters right. Under HOTCHA a tenant of a charitable housing association who cannot buy his existing house is able to apply the discount he might otherwise have received to the purchase of a house on the open market. The value of the house bought is limited by a ceiling related to the costs, in that area, of the kind of house a first-time buyer might be expected to buy. There are also corresponding safeguards on the maximum discount which can be applied.

The transaction is conducted through another, non-charitable association. Having chosen his house the tenant asks the acquiring association to buy it and to sell it to him after applying the discount he has achieved on his existing house. The balance of the cost is paid to the acquiring association by way of housing association grant. These costs are met from the overall allocation to the Housing Corporation and have to be controlled to avoid an untoward limitation of the movement's scope for development.

But to return to the amendment. To qualify for HOTCHA the tenant must occupy a house which was provided by housing association grant. This grant was introduced in 1974 and there are many houses belonging to the older established housing associations which were provided using public finance in a variety of guises. Being older, the estates on which these houses are situated have often been repaired or improved and housing association grant has been paid on this work. The amendment simply provides that where a house is in a scheme or estate on which housing association grant has been paid for repairs or improvements then, if the landlord is a charitable housing association to which the right to buy does not apply, the tenant is eligible for HOTCHA.

We hope in this way to have ensured that as many as possible of the tenants of housing associations have access to the right to buy, either directly or through HOTCHA. That is in line with the expressed intention of the Bill, which received a good measure of support in this House. I trust the amendment will be welcomed. I beg to move.

My Lords, I listened with care to the Minister and I should certainly like to give what he said considerably more thought. I should like to raise two points. First, is there such a clause in English legislation? I understand that no such clause applies to England, and that means there is a difference in treatment between the two countries.

The second point, which has been glossed over perhaps because of the lack of appreciation of the real problem, is that the housing associations will not, at the end of the day, receive enough money from the sale of a house to build a replacement. Moreover—and this is extremely important—there is a time gap. One cannot sell a house today and get the money for it in a fortnight's time and build another house in a month's time. There will be a long gap. The housing associations were set up to keep communities together and create vibrant communities in some of the older areas. They will not be able to replace houses as quickly as might be thought by those who worded this clause.

The Minister has given us an opportunity to see his words. Obviously the Bill will be going to the other place where, as they should be, these matters can be digested and discussed at more leisure. However, I should like to know whether a similar clause exists in English legislation. If the Minister cannot tell me tonight perhaps he will let me know later and I will pass on the information to whoever raises this issue at another time.

My Lords, I believe that this is an improvement to the Bill. There is a curious situation with this complex arrangement between this Act and the Housing Associations Act 1985 where some of the clauses belong to Scotland and some to England. One thing done by the Bill is to bring Clauses 44 and 45 into the Scottish Act where they were not before. I believe that to be an advantage because it brings in more definitely the question of improving houses with repairs and maintenance. That is an important and, in many ways, unique part of the housing associations. It brings in the point—which I had omitted to notice—that if one has a charitable association one wants to use the HOTCHA system. I believe that is right. Therefore, I welcome the amendment.

7.45 p.m.

My Lords, I agree with the noble Earl, Lord Selkirk. This is a terribly complicated situation. The noble Lord, Lord Gray of Contin, wrote a letter to various noble Lords outlining his proposals. In that letter he said that he hoped we would agree this to be a fair and useful extension of the aims we had originally achieved in carrying the amendment on Report. Therefore, I too thank the Minister for bringing forward the amendment. All in all, I think it is useful.

My Lords, I am grateful to my noble friend Lord Selkirk and to the noble Earl, Lord Perth, for their support.

The noble Lord, Lord Carmichael, asked one or two questions. He asked whether there is a similar clause in English legislation. The answer is that there is no parallel clause. My advice is that it may be that the same problem does not occur to the same extent as it does in Scotland. The noble Lord also asked about HOTCHA sales. I will consider the point he raised and write to him with a full explanation.

On Question, amendment agreed to.

After Clause 19, insert the following new clause:

(" Functions of local authorities with respect to persons who are homeless or threatened with homelessness.

.—(1) The Housing (Homeless Persons) Act 1977 shall be amended in accordance with the following provisions of this section.

(2) In section 1(2) (homeless persons and persons threatened with homelessness) after paragraph ( c) there shall be inserted the following paragraph—

"(d) it does not provide the ordinary facilities of a residence and it is inappropriate for his needs, or it is unreasonable for him to continue to live in it."

(3) In section 4 (duties of housing authorities to homeless persons and persons threatened with homelessness) after subsection (6) there shall be inserted the following subsection—

"(7) Where a local authority has a duty under subsections (4) and (5) above "accommodation" shall be defined as either—
  • (a) a separate dwelling house that shall not be over-crowded as defined in section 89 of the Housing (Scotland) Act 1966 and shall meet the tolerable standard as defined in section 14 of the Housing (Scotland) Act 1974, or
  • (b) in exceptional circumstances where a separate dwelling house as defined in (a) above is not appropriate to the needs of an applicant accommodation that is appropriate and reasonable in all the circumstances." ").
  • The noble Lord said: My Lords, this amendment when last discussed raised a tremendous amount of sympathy in this House. The noble Lord, Lord Gray, pointed out that the amendment I moved at that time was technically wrong. I withdrew it and said that we would bring forward an amendment at a later stage. That is what I am now doing.

    The issue hinged on what was a point of law. I understood the noble and learned Lord, Lord Elwyn-Jones, to say that in law it was right but not in practice. The House heard of accommodation which was described as adequate, but I think that everyone realised that the accommodation itself, although it could be called accommodation, was not the sort of accommodation in which one would permit or like one's own family to live. The matter caused a great deal of stir and many people are worried about it.

    The Government now have an opportunity to put right the situation in Scotland through this Bill and I hope they will grasp this opportunity. In 1985 there were in the region of 18,000 homeless applicants in Scotland. Those are Shelter figures. Shelter believes that the figure is likely to exceed 20,000 in 1986. We must have the definitions of what is "homeless" and what is "accommodation" sensibly applied. That is what we seek to do in the amendment.

    There are a number of arguments. I shall not repeat them all because we went through this matter thoroughly on the last occasion. In a Scottish case the noble and learned Lord, Lord Wheatley, remarked:

    "I reject the argument that as long as accommodation was available it did not matter what the nature of the accommodation was. In my view it must be reasonable in all the circumstances. A pigsty might be accommodation, but not reasonable accommodation".

    Of course this is true, but it is carrying the comparison to extremes. Though I myself have known some very comfortable pigsties, they are not places where I should like to live, nor would I like anyone else to live in them. We are simply asking the Government to put the position back to what it was before, and I think that that is a reasonable request.

    We are not impressed by the argument that has been put forward by the Minister in another place who said that he would "wait and see". That is a good Asquithian phrase, I dare say, but in this case it appears to me to be nonsense. The statistics that have been collected do not show and would not show the anomalies that have been occurring, nor the attitudes that local government may be driven to adopt owing to a shortage of cash. We only want to put right a decision which is admitted by lawyers legally to be based on paper and not on practicality. We want the Government to rectify this decision and return to common sense. That is what this amendment tries to do.

    There is concern in Scotland, and in fact the General Assembly of the Church of Scotland moved an addendum to the report of the Church and Nation Committee saying:

    "The General Assembly notes with grave concern that a recent judgment in the House of Lords … has disclosed serious deficiencies in the provisions made for homeless persons, and urges Parliament to bring forward legislation with utmost urgency to restore the rights of homeless families to be decently housed".

    That appears to me to be a good request from a reputable source. I beg to move.

    My Lords, I should like to support the noble Lord, Lord Mackie, who moved the amendment and say that this is again a situation where much concern is shown by public opinion in Scotland and by those who are very much involved in the problems of housing, and particularly the housing of homeless people. I have received the views of the Dundee Liaison Committee on Homelessness which urges us:

    "to bring in legislation to undo the damage done by the House of Lords".
    That is perhaps an over-enthusiastic reaction to the decision of the judicial committee of the House of Lords which did not do damage but merely interpreted the law correctly. Perhaps more appropriate is something which the Scottish Legal Action Group has suggested:
    "The Group urges the Secretary of State for Scotland to bring forward legislation urgently to ensure at least a return to the status quo existing before the House of Lords decision".
    This is our concern. The noble Lord, Lord Mackie, cited the opinion of the noble and learned Lord, Lord Wheatley, and mention has been made of the opinion of the noble and learned Lord, Lord Denning, before the House of Lords gave its final decision. The opinions of all the other legal people until this decision from the House of Lords was that there was an implicit qualification on accommodation. Quite correctly, the decision on appeal was that there was no word on the face of the Act (and in the last few days we have heard quite a lot about putting things on the face of a Bill) that qualifies in any way the question of accommodation.

    We all know that that is a nonsense. No matter what the law itself may actually state, we know that it was never the intention of those who put forward the legislation in the first place, though the strict legal interpretation may leave no room for doubt. Therefore, we are making a plea to the Minister that we should return to the previous situation as regards the question of the definition of accommodation, and return to the terms in which everyone in Scotland, and also I imagine in the United Kingdom, really believed that accommodation was defined.

    There have been many precedents and many instances of retrospective legislation. The one defence of retrospective legislation that I can accept arises in a situation in which the legal profession of the entire nation has believed that something was the intention of Parliament and then suddenly on closer examination of the actual words of the Act finds that this is not the position. There have been a number of instances where retrospective legislation has restored a situation to that which everyone had believed it to be earlier.

    We are asking the Minister to do something similar today. We are asking not for retrospective legislation but for legislation that will be operative from the moment the Act receives the Royal Assent, but which will restore the position to that which everyone had believed it to be before. I very enthusiastically support the views of the noble Lord, Lord Mackie of Benshie.

    My Lords, both noble Lords who have spoken on this amendment have quoted from a document which I possess and which has been sent to me and many others by Shelter. I have read this document with considerable care and I am bound to say that if what is in it is correct, as I am sure it must be, there have been major differences of view among some of the most eminent legal luminaries in the land. The noble Lord, Lord Mackie, has quoted the noble and learned Lord, Lord Wheatley, on the pigsty and said that it was not reasonable accommodation. According to the notes, that case went on to the Appellate Committee of this House where the noble and learned Lord, Lord Fraser, wholeheartedly and entirely accepted that accommodation provided must be reasonable. Then, later on, in what is called the Puhlofer case we were told that the word "reasonable" had to be excluded because that was the law.

    I say somewhat sadly that all of this argument leaves a very simple farmer such as myself somewhat bewildered and I am relying totally on the clear springs of lucidity which characterise the utterances of my noble friend the Minister to give me a clear answer to two questions that I shall put to him.

    The noble Lord, Lord Carmichael, made reference to what I find is the general drift of the notes from Shelter and said that what this amendment is asking for is a return to the status quo; not retrospective legislation, but from now onwards to have things as they were before the Puhlhofer judgment. I should like my noble friend to say whether this is precisely the effect of this amendment. If it is, was the situation prior to the Puhlhofer judgment unsatisfactory?

    8 p.m.

    My Lords, I shall say only one or two words as it is getting late and I shall keep my comments brief. As we all know, this amendment arises from a decision that was given by this House in its appellate capacity. I certainly do not wish to enter into a discussion as to whether that decision made legal sense or not. It is a decision that has been given. Another decision could have been given which went the other way. There it is.

    One understands the desire of people concerned with housing to redress the balance and correct what is undoubtedly a difficult situation, but it is necessary to face the fact that this Act of 1977 is a very difficult Act. It always has been—it has been commented on a number of times judicially—because it puts local authorities in an impossible situation.

    The Act gives to a certain category of people defined in a particular way priority as regards local authorities for the provision of accommodation—priority over a number of very meritorious people who may have been for years on the housing lists and who find themselves now displaced in favour of people coming into the area possibly for the first time and who are by the Act given statutory priority over those who have been waiting. This is particularly acute, as one knows, in English boroughs, particularly in the Borough of Hillingdon, where a great number of people arrive from Heathrow Airport and say: "We satisfy the requirements. We are entitled to immediate priority. We must go on regardless of the housing needs of people in the neighbourhood".

    To say that the amendment is intended to restore the situation as was thought to exist before the House of Lords decision is, if I may respectfully say so, rather begging the question. We do not know exactly how far the Act of 1977 was intended to go. It was a benevolent and thoroughly goodhearted Act but, I must say, ill thought out because of the dilemma in which it puts local authorities.

    One finds here in both parts of the Act—the one which contains the definition of homeless persons and the one which defines the duties of local authorities—very difficult words:
    "it is unreasonable for him to continue to live in it"
    in the first part, and
    "appropriate and reasonable in all the circumstances"
    in the other part. Was it intended to give so wide a priority to a class of persons as those words define? We do not know.

    I certainly should be in favour of redressing the balance to some extent as against the House of Lords legal decision. I think that that has created a difficult situation. Whether it is right to go so far as this amendment does seems to me rather less clear.

    I feel, and I think that the House ought to understand, that if this amendment is accepted there is bound to be a great deal of litigation and there are bound to be cases of great hardship the other way on account of people coming in and saying, "It is unreasonable for me to live there" or "The house is not appropriate for me to live in and I must be given priority over the people in the neighbourhood". It may be that the correction goes too far and creates hardships in other directions.

    To take a definite position on the amendment is difficult. I should be inclined to support it as, on the whole, a well intentioned amendment and perhaps leave it to another place to see whether some correction, modification or scaling down are necessary on the wording used, which I must say I feel goes rather too far in the direction of providing priority for a particular class of persons. With that, I would give the amendment a qualified approval, but only a qualified one.

    My Lords, I have heard the case and in particular the noble and learned Lord, Lord Elwyn-Jones, mentioning the legal problems; but all the same I have a feeling that we must do something. At Report stage the noble Lord, Lord Gray, said that the Government were going to wait. They had come to the conclusion that it would be premature to consider the possibility of amendments until and unless it was demonstrated that local authorities were taking a different approach to the discharge of their responsibilities. How long does one wait? Who judges? Does someone say "Now is the moment. Three or four cases have gone wrong and so we had better move", or what?

    Surely it is much better that we should accept the amendment as it is or have the Government agree that they will put in an appropriate amendment in the light of what we have just been hearing? We should ask them at least to do that. It is wrong to say that we should wait until the matter is quite clear. At that time there may have been half a dozen cases of great hardship and that would be wrong.

    If the noble Lord does not accept the amendment, I hope he will at least give us an undertaking that the Government will consider it further and in another place bring in an amendment, which is what we all want, in the form that we all want.

    My Lords, this amendment has aroused the conscience of the House and it has led to some interesting and useful contributions. I am particularly grateful to the noble and learned Lord, Lord Wilberforce, for what he had to say. He has highlighted the difficulty that the Government would be in if we accepted the amendment. Indeed, as a result of what he said, my view that the Government simply could not accept the amendment in its present form is wholly confirmed.

    This matter has been raised before, notably when the Bill had its Report stage in another place early in March and again at the Report stage in this House last month. When the matter was brought before this House last month at Report stage I was able to announce the outcome of the consideration that the Government had been giving to the matter. I told the House that we had concluded that an early amendment to the Housing (Homeless Persons) Act would not be appropriate. We believe that it would be premature to consider such an amendment unless and until it can be demonstrated that local authorities are taking a different approach to the discharge of their responsibilities to homeless people. We have no evidence, and nor have we been given evidence this evening, that such is the case. We shall, however, keep the position closely under review through the regular quarterly statistics and other information coming to hand, and I indicated that we should welcome any supplementary evidence that Shelter or other voluntary bodies might care to submit to us.

    Apropos of what noble Lords have received from Shelter, my noble friend Lord Stodart of Leaston asked me exactly what the amendment did and whether it would put things back to exactly where they were before. The noble and learned Lord also referred to that. The amendment defines what accommodation will count as fulfilling an authority's duty. If an authority placed a homeless family in other accommodation—for example, bed-and-breakfast—it would not have fulfilled its duty and could be open to applications for judicial review. That is quite different from the present position where an authority would be fulfilling its duty by placing the applicant in bed-and-breakfast accommodation but must have regard to the code of guidance which says that that should be used only as a last resort and even then as a temporary measure.

    The noble Lord may not have intended to open up the practice of authorities to judicial review in that way, but that is the effect of the amendment and it is not acceptable. There will inevitably be circumstances in which authorities have to provide temporary accommodation for an initial period.

    Secondly, the amendment stresses the need to provide permanent accommodation, and that is, I suspect, its main purpose. The code asks that permanent accommodation should be secured as soon as possible. I believe that we should think carefully before making that mandatory. We have said that we shall monitor that, and monitor it we will. I accept that we may need to think again when there is more evidence, but it would be a great mistake to rush in at the present moment. With the greatest respect to the noble Lord, Lord Mackie of Benshie, I am not at all satisfied that the amendment which he has proposed and which the House is considering tonight would achieve what he hopes it will achieve, nor am I satisfied that it would even be an improvement on the present situation.

    I know that your Lordships wish to reach a conclusion on the matter, but let me quickly say why I believe that the amendment is defective. In the first place, subsection (2) seeks to provide that a person shall be regarded as homeless if he has accommodation but,
    "it does not provide the ordinary facilities of a residence and it is inappropriate for his needs, or it is unreasonable for him to continue to live in it".
    What are the "ordinary facilities of a residence", however? That is not defined either here or elsewhere in statute. What is meant by "appropriate for his needs"? A millionaire might consider that a fashionable address in Edinburgh was appropriate to his needs. The Tenants' Rights, Etc. (Scotland) Act 1980 includes the concept of accommodation being
    "reasonably suitable to the needs of a tenant",
    but it takes half a schedule to define the phrase.

    The noble Lord has used three undefined expressions in one sentence. In the lack of any definition of what those phrases mean, it is left to the local authority in the first instance to interpret them as it sees fit. That is likely to give rise to exactly the same problems as the noble Lord alleges arise under the present Act, where local authorities have a discretion to decide what constitutes "accommodation".

    Secondly, subsection (3) seeks to provide that, where a local authority accepts that it has a duty to secure accommodation for a homeless person, that accommodation shall take the form of a separate dwellinghouse, which is not overcrowded and which reaches a tolerable standard or, in exceptional circumstances where a separate dwellinghouse is not appropriate, such accommodation as is appropriate and reasonable. What are those exceptional circumstances? I am not trying, and I know that the noble Lord will not for one moment think that I am, politically to shoot down his amendment; I am trying to point out that the amendment, with which I have dealt in some detail, will create more problems than it will resolve. For that reason, I am afraid that I cannot accept the amendment. I must suggest to the noble Lord that he withdraws his amendment, but if he insists I must ask my noble friends to reject it.

    My Lords, my noble friend said that he could not accept the amendment. I can readily understand that, because we are dealing with a narrow and difficult subject. In the past 50 years—if I may take one word from the amendment—what has been regarded as tolerable has obviously changed greatly. What we were prepared to tolerate 50 years ago is probably different now.

    As the noble and learned Lord, Lord Wilberforce, has said, we have an unacceptable decision made by the House in its judicial capacity. We should give the Government the chance to improve the amendment or if they want to, to take it out in the other place. We should put the amendment in to make the Government think. I do not want to be too harsh on them if I can possibly help it, but it is proper that this is a matter which the House should not let rest. Something has gone astray. We should show that we want to correct the position slightly. I agree with the noble Lord that "tolerable" accommodation is difficult to define. The present definition is wrong. The Government should be asked to put the amendment into more acceptable words. If the noble Lord presses the amendment I shall support it.

    My Lords, it has been a fascinating debate. I am disappointed that the noble Lord the Minister did not say that he would look at the matter in another place. He has reiterated that the Government will monitor what goes on. That is not good enough. Not that I suggest the noble Lord means it in this way, but monitoring is often a device for doing nothing.

    The noble and learned Lord, Lord Wilberforce, put me in a perfect pother when I thought he was going to damn the whole proposal. Happily he came around to saying that the amendment perhaps went too far but that he was inclined to support it. The argument he was putting forward about the Act was a political and not a legal one. He suggested that the Act creates an injustice for people who have been on the waiting list for a long time while providing for homeless people who are in dire need and who come into an area.

    I wholly agree with the noble Earl, Lord Selkirk, that we should put this matter to the Government. We should not leave it as it is because the House has clearly expressed an opinion that the House of Lords, in its judicial capacity, has left the position such that "accommodation" can be defined as any sort of cover.

    The amendment may not be perfect. I should find it reasonably easy to follow the instructions contained in it. I think that the views expressed by Members are such that the House should express its opinion.

    8.15 p.m.

    On Question, Whether the said amendment (No. 5) shall be agreed to?

    Their Lordships divided: Contents, 51; Not-Contents, 42.



    Airedale, L.Graham of Edmonton, L.
    Annandale and Hartfell, E.Hampton, L.
    Blease, L.Harris of Greenwich, L.
    Broadbridge, L.Houghton of Sowerby, L.
    Bruce of Donington, L.Hughes, L.
    Carmichael of Kelvingrove, L. [Teller.]John-Mackie, L.
    Kagan, L.
    Chandos, V.Kilmarnock, L.
    Cledwyn of Penrhos, L.Kirkhill, L.
    Craigavon, V.Mackie of Benshie, L. [Teller.]
    Crawshaw of Aintree, L.
    David, B.McNair, L.
    Dean of Beswick, L.Masham of Ilton, B.
    Diamond, L.Molloy, L.
    Donoughue, L.Mulley, L.
    Elwyn-Jones, L.Nicol, B.
    Ezra, L.Perth, E.
    Gallacher, L.Phillips, B.

    Ponsonby of Shulbrede, L.Stoddart of Swindon, L
    Prys-Davies, L.Strabolgi, L.
    Saltoun of Abernethy, Ly.Taylor of Blackburn, L.
    Seear, B.Underhill, L.
    Seebohm, L.Whaddon, L.
    Selkirk, E.White, B.
    Shackleton, L.Williams of Elvel, L.
    Simon, V.Wilson of Langside, L.
    Southwark, Bp.


    Abinger, L.Kimball, L.
    Allenby of Megiddo, V.Layton, L.
    Ashbourne, L.Lindsey and Abingdon, E.
    Auckland, L.Long, V.
    Bauer, L.Lyell, L.
    Belstead, L.Margadale, L.
    Brabazon of Tara, L.Maude of Stratford-upon-Avon, L.
    Brougham and Vaux, L.
    Caithness, E.Mersey, V.
    Carnegy of Lour, B.Murton of Lindisfarne, L.
    Coleraine, L.Plummer of St Marylebone, L.
    Constantine of Stanmore, L.
    Cork and Orrery, E.Rochdale, V.
    Davidson, V.Skelmersdale, L.
    Denham, L. [Teller.]Strathclyde, L.
    Elliott of Morpeth, L.Swinfen, L.
    Elton, L.Swinton, E. [Teller.]
    Gray of Contin, L.Thorneycroft, L.
    Greenway, L.Trefgarne, L.
    Hives, L.Trumpington, B.
    Hooper, B.Ullswater, V.
    Kaberry of Adel, L.Zouche of Haryngworth, L.

    Resolved in the affirmative, and amendment agreed to accordingly.

    8.21 p.m.

    Schedule 1 [ Amendment of 1980 Act]:

    Page 21, line 37, at end insert—

    ("( ) where a landlord so mentioned has at no time let (or had available for letting) more than 250 dwellings; or").

    The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

    On Question, amendment agreed to.

    Page 21, line 50, leave out from ("but") to ("section") in line 6 on page 22 and insert ('is, by virtue of").

    The noble Lord said: My Lords, I hope that it will be for the convenience of the House if I speak to Amendments Nos. 7 and 8 together. The purpose of these amendments is to remove—

    My Lords, I thought we were going on to my amendment. Which Bill are we discussing?

    My Lords, although the Minister has not changed, the Bill has. While the noble Lord has been refreshing himself we have been studying the Housing (Scotland) Bill, but we are, I think, coming almost to a conclusion. I realise the hour. We are running perhaps 20 minutes late. As I was saying before the noble Lord interrupted me, these amendments are intended—

    My Lords, I am sorry to interrupt the noble Lord. The instruction from the House was that we would resume at 8 o'clock. I thought that this was the instruction.

    My Lords, the noble Lord will recall, I think, that my noble friend said "not before 8 o'clock".

    These amendments are intended to remove unnecessary words. The Bill now requires that an association must have charitable rules and have been granted exemption from tax. But the Inland Revenue will grant tax exemption to an association only if it has, at the time of the application, charitable rules. So the first requirement, to have such rules, is redundant and can be omitted. My amendments achieve this, and I trust that the House will accept them for the simple drafting amendments they are. The effect of the exemption is unchanged. I beg to move.

    On Question, amendment agreed to.

    moved Amendment No. 8:

    Page 22, line 8, leave out from ("charities) ") to end of line 10 and insert (", exempt from tax;").

    On Question, amendment agreed to.

    Schedule 3 [ Repeals]:

    moved Amendment No. 9:

    Page 33, line 24, column 3 at end insert ("In section 106(2), the definition of "heritable security".").

    The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

    On Question, amendment agreed to.

    Moved, That the Bill do now pass.—( Lord Gray of Contin.)

    On Question, Bill passed, and returned to the Commons with amendments.