House Of Lords
Wednesday, 13 October 2004.
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.
Live Music
asked Her Majesty's Government:
On what basis they have concluded that the United Kingdom has a flourishing music scene given a recent survey indicating that a majority of restaurants, hotels and public houses had had no live music in the previous 12 months.
My Lords, the survey referred to by the noble Lord, Lord Redesdale, was conducted by MORI. It showed that there were around 1.7 million live music events in England and Wales in the previous 12 months. This demonstrates that we have a flourishing live music scene. Of course, the Government would like to see more live music; they are doing everything they can to encourage this, and we are working to that end. I am confident that the reforms included in the Licensing Act 2003, supplemented by the work of the Live Music Forum, chaired by Feargal Sharkey, will increase opportunities for all musicians.
My Lords, I thank the Minister for that Answer. In the DCMS/MORI survey on the impact of the Licensing Act on live music, it was rather distressing to note—way down the list of statistics, although it seemed the most important fact—that those who knew most about the Licensing Act were the least likely to put on live music in the future and the most deterred from doing so. This seems a significant problem, considering how few pubs and clubs put on live music at present. If fewer of them put on live music in the future, that will mean even fewer venues in which aspiring musicians can perform.
My Lords, I remind the noble Lord, Lord Redesdale, that the Licensing Act has not yet come into force and will not do so until November 2005. We remain absolutely confident that the acts, reforms and work of the Live Music Forum will provide real opportunities for live music to flourish. The Government started a campaign over the summer to tell everybody about the new licensing system. Two hundred pages of statutory guidance have been issued, a newsletter has gone out, there have been 12,000 hits on the DCMS website and more than 400 local authorities have begun extensive consultation on their draft licensing policy statement. So it is far too early for pessimism to run rampant. We are totally confident that when we have been through the consultation period and when we reach June 2005, we will see the very thing we want—a thriving and flourishing live music scene in Britain.
My Lords, what financial assistance are the Government giving to enable young people, especially in our schools, to understand and appreciate live music and to encourage as many of them as possible to become participants in it, and what financial assistance is being given to schools for the provision of musical instruments?
My Lords. I thank my noble friend for that question. The Government, with their commitment to live music, recognise that if we are to have live music played in the public arenas about which the noble Lord, Lord Redesdale, is so anxious, we must start with the education system. As noble Lords will know, music is a statutory subject for all pupils aged five to 14. Local education music services receive £60 million to provide specialist instrumental tuition beyond the curriculum. This grant is protected until at least 2008.
In July, we published the music manifesto which underlines the Government's commitment to live music. There is a tremendous amount of evidence that the Government's commitment to music tuition in schools that was part of the 1997 election campaign has been realised, with knobs on.My Lords, the Minister has given us some statistics. I should like to refer to the survey, which was commissioned by the DCMS. Based on what respondees have heard about the Licensing Act so far, only 1 per cent of respondees polled said they would certainly consider putting on live music in their venue, 3 per cent said they were very likely to do so, 12 per cent said they were fairly likely to do so, and the rest—84 per cent of the respondees to this poll—said that they would not consider putting on live music. I believe that the noble Lord, Lord Redesdale, has every right to be despondent.
My Lords, first, we must give the Government some credit for conducting the survey. It is the first time there has been a survey of the live music scene in Britain. It shows that a great amount of work needs to be done, and I have already explained what is happening to make sure that in a year's time, a great many people will apply for these licences.
We shall have another survey in a year's time so that we can compare what happens then with what is happening now. I remind noble Lords that this was the first survey of the live music scene in Britain, and until we have a second survey, we cannot start generalising about the results.My Lords, given the ever increasing encroachment of muzak in every area of life, even when one is trying to make a telephone call and, even worse, trying to get someone to answer, will the Government and the Opposition draw a distinction between live music and good music? Will they both also take on board the fact that there are twisted people around who go to restaurants and pubs for a quiet drink and a meal?
My Lords, I cannot make value judgments. I happen to like rock and roll—a view, I am sure, that is not shared by a considerable number of your Lordships in this House. I would hate the idea of going to a restaurant and having music played while I am eating. I return to the Government's education policy for young people in relation to music. It is absolutely clear from the music manifesto that when money is being spent on young people and their knowledge of music, we are talking about serious music and not muzak.
My Lords—
My Lords—
Colwyn!
My Lords, I think that noble Lords are calling for the noble Lord, Lord Colwyn.
My Lords, I am very grateful. There is obviously some discrepancy in the figures for live performance. It is vital that venues are increasingly available for instrumentalists and performers of all types of music. I am glad that the Minister reaffirmed that as government policy. Does he plan to be in the atrium at Portcullis House this evening, when the Live Music Forum will be highlighting the importance of live music and many musicians, including the MPs' rock hand, will be performing?
My Lords, I welcome that wonderful piece of self-publicity. I will be there and I was hoping to have an opportunity to mention that as yet another example of how important live music is.
Forty-seven per cent of surveyed venues said that they had staged live music, but almost a third—29 per cent—said they were not able to do so because their venue did not have the capacity. If one takes out those venues, about 55 per cent of the remainder staged live music, which represents not a minority of venues, but a majority.Iraq: Elections
2.45 p.m.
asked Her Majesty's Government:
What is their latest assessment of the prospects for properly run elections in Iraq in January 2005; and what role is anticipated for United Kingdom ground forces in providing assistance.
My Lords, we are pleased that the Interim Government remain committed to the holding of elections in January 2005, which we see as a vital part of the political process agreed in Security Council Resolution 1546. Technical preparations by the Independent Electoral Commission of Iraq and the UN are proceeding well, as the Foreign Secretary saw during his visit of 4 to 6 October. UK troops, as part of a multinational force, continue to support Iraqi security forces and will assist with security in the runup to the elections in January.
My Lords, while thanking the Minister for that Answer and while also still awaiting a full government apology for this illegal war, is she not very concerned that the chaos in Iraq and US incompetence will ruin the January elections and further endanger the lives of our soldiers, mainly in the south-east?
My Lords, I congratulate the noble Lord, Lord Dykes, on his first Starred Question and its timely nature.
Second!
My Lords, I look forward to being given a hard time by the noble Lord in the future.
We are confident that the elections are on course. The Iraqi people want them. Every Iraqi opinion poll has confirmed that. The UN also is confident that progress is on schedule and the Interim Iraqi Government are doing everything they can to make sure that those elections take place in January.My Lords, as this is the first time that we have mentioned Iraq since the House returned, I send on behalf of these Benches our deepest condolences to Mr Bigley's family. Terrorists such as Tawhid wal Jihad cannot be appeased; they can only be fought.
In light of the recent accusations of electoral fraud in the elections in Afghanistan on 9 October, what lessons have been learned in combating electoral fraud and malpractice? Are not such accusations proof of the very real need to step up the expert electoral support provided by the UN in the Iraqi elections, especially as there are only eight election experts working in Iraq?My Lords, I associate myself with the condolences of the noble Baroness to the family and friends of Ken Bigley.
On the Afghanistan experience, we know that Afghanistan held its first democratic presidential elections on 9 October. That was a great achievement because, despite earlier fears, there were relatively few incidents of violence and intimidation. Of course there will be lessons to be learnt—the noble Baroness is absolutely right about that. For instance, complaints about technical issues such as the failure of the indelible ink are being investigated by an independent panel. As the noble Baroness rightly said, those and other technical issues will need to be considered in the context of the elections in Iraq. On the UN advisers, we hope that by the end of this month, there will be 25 in Iraq.My Lords, what help has been sought from the Organisation of Islamic Countries in providing security during the elections?
My Lords, the multinational force will be providing security during the elections. The UK part of that force will do so in the south and in Basra. I do not have details about a specific request for help, but I shall write to my noble friend about that.
My Lords, is the Minister aware of reports in some American newspapers that the Americans are extremely unhappy that the British have not provided more support for American operations outside the British sector? Are the British forces responsible for their own sector alone or are they intended to answer requests for assistance from American forces?
My Lords, UK troops, in the context of the multinational force, have a jurisdiction in the south and Basra. I shall write to the noble Lord if their responsibilities go beyond that with regard to multinational force 1. As for providing security for the elections, we have given the United Nations a pledge that we shall form part of the UN protection for advisers.
My Lords, is not the noble Baroness in danger of giving a rather complacent impression of what is happening in Iraq today? Is it the Government's view that for elections to be held successfully in January, all Iraq should be under the effective jurisdiction of the present Government? Could she imagine circumstances in which elections are held, even though some cities in some parts of the country, including some parts of Baghdad, are not under the control of the Interim Government?
My Lords, I hope that I have not given the impression that we are complacent. A great deal of work is being done to ensure that security is stepped up. I agree with the noble Lord, Lord Hurd, that security is absolutely vital.
The Government of Prime Minister Allawi has a three-fold strategy for this very question. First, there must be political outreach, particularly to leaders of the Sunni community. The area of the Sunni triangle is one of the areas that the noble Lord encompassed in his question. We must reach out to many of those leaders to bring them in from the edges of insurgency. Secondly, Iraqi military capability must be strengthened—some 200,000 Iraqis have now been trained. Thirdly, reconstruction efforts must be speeded up, especially in the Sunni areas.My Lords, would my noble friend the Minister agree with me that, although the trade union movement in Iraq is still very much in its infancy, it is being supported by the TUC and by UK unions and has a tremendous role in delivering democracy during the elections and supporting the activity of our troops?
My Lords, my noble friend makes an important point. The fledgling trade union movement in Iraq has a great role to play, in assisting not only in the political progress towards elections but also in the great reconstruction efforts towards improving the economy. There is some progress in assistance for trade unions in Iraq. The International Confederation of Free Trade Unions organised a highly successful fact-finding mission earlier this year, partly funded by the FCO, which looked at the state of trade unions in Iraq.
My Lords, is the Minister aware that during her rather long reply to my noble friend Lord Hurd—
My Lords, we must move on to the next Question.
Cross Country Rail Franchise
2.53 p.m.
asked Her Majesty's Government:
In setting the specification for the new Cross Country Rail Franchise, what provision will be made for those travelling beyond the core of the network.
My Lords, recent negotiations surrounding Virgin Rail Group's cross country franchise are related to the financial terms on which the franchise is operated, not on the formal scope of the franchise. Those terms are currently set out in a "letter agreement" signed in July 2002. The SRA has informed Virgin that it reserves the right to terminate the franchise, but no decision has yet been taken on how to proceed.
My Lords, I thank the Minister for his reply, as far as it goes. However, he must be aware of the widespread talk in the specialist press that. led by the Treasury, there are going to be attempts to curtail the cross country services at York and Bristol and force people from Scotland or the west of England to change trains twice, at Bristol and Newcastle. Does that hold out any reasonable prospect of an accessible transport service for families or people heavily encumbered with luggage?
My Lords, the noble Lord has introduced an important point in consideration of the future of rail services. However, he is somewhat jumping the gun; he alludes to what appeared in the specialist press, but under no authority from the Government. We are not in a position at this stage to confirm or deny those comments in the press, but it is clear that services should provide for the maximum possible convenience of passengers. Therefore, the considerations mentioned by the noble Lord should be introduced into the issues—and that will certainly be done.
My Lords, does my noble friend agree that the improvement in the quality of the service provided by Virgin on the cross country services, after a very shaky start, is quite a strong reason for this franchise not to be broken up? Indeed, the other discussion in the specialist press at the moment is that the cross country franchise might absorb Central Trains. Would that not be a much better way in which to provide the sort of service to which the noble Lord, Lord Bradshaw, referred?
My Lords, I hear what my noble friend says, but I reiterate that the issue with regard to the Virgin franchise at present relates to the financial terms on which the franchise operates. That is the basis of discussion. Certainly, my noble friend has introduced a concept for how cross country services might be improved, but at this point no decision has been taken. At present, no new franchise exists—which is the issue referred to in the original Question.
My Lords, can the Minister explain why within less than five years the Government have set up the SRA and then abolished it?
My Lords, because the Government inherited a rail service system in this country that let the people down very badly indeed, including the taxpayer, the fare-paying public and everyone concerned with the railways. The result was that one aspect of the service which the previous Conservative government established—Railtrack—went bankrupt after the Hatfield rail disaster. So we have been faced with a crisis situation with regard to the rail. It is not an issue that could be resolved in a matter of months. It is taking us time to get in place the correct structure for the development of the railways, but we are on the brink of doing so.
My Lords, is my noble friend aware that there is real concern that if Central Railways merges with the cross country franchise, many local services in the West Midlands will deteriorate and be removed to make way for the cross country services? Can he ensure that there is a balance between local services and other services, in any change in the franchise system?
My Lords, I assure the House that I had absolutely no notice of that question, but that indicates why I was so guarded in response to the question of my noble friend Lord Faulkner about the extension of the cross country franchise. Many issues must be considered with regard to the issue of any new franchises, and we are not in a position at present to take decisions on the matter. But I repeat that the issue with regard to the Virgin cross country franchise relates not to the provision of the services but to the actual cost and the financial arrangements. That is the only issue subject to direct discussion at present.
My Lords, the Minister is obviously aware that several of the Virgin cross country services start and finish at stations in Scotland—precisely, Glasgow, Edinburgh, Dundee and Aberdeen. Could the Government really be considering taking off those long-distance trains? They are used to the tune of up to 40 per cent by advanced purchase ticket holders—that is, people looking for pre-planned and seamless leisure travel. At a time when we are trying to encourage rail/air substitution, is it wise to take off the long-distance trains that would allow that rail/air substitution?
My Lords, we have no intention of taking off the long-distance trains. In fact, we take great solace from the fact that after so many years, the West Coast Main Line is subject to a new and substantial improvement with regard to its timetable, and improved services.
What remains is the question of the inter-relationship between long-distance services, serving our main cities, and the question of cross country franchises, and the local rail services as well, which my noble friend Lord Hunt introduced into the discussion. Those complex issues require a clear perspective on them. I merely indicate to the House that at present we are not in a position to make an announcement, but I can allay the noble Lord's particular anxieties.My Lords, notwithstanding the need for long-distance services, will my noble friend agree to consider whether there is really a need for four InterCity services every hour between York and Newcastle, three north of Preston and quite a few west of Exeter, many of them running nearly empty? Given the overcrowding in many other parts of the network, including local services, is there not a case for a bit of rebalancing of resources?
My Lords, there is always a case for analysis of the best form of service to be provided. It will be recognised that we are involved in a clear analysis of the overall position at present. My noble friend may have a case, but I reiterate the point: all these issues are subject to franchise, for which companies have bid. They are running those services on the basis of the franchises that they hold at present. We are not considering a new franchise for cross country at present. The other franchises fall into place in due course, as their term falls due. Considerations such as the one introduced by my noble friend will be taken account of at that time.
Iraq Survey Group
3.1 p.m.
asked Her Majesty's Government:
What is their response to the report of the Iraq Survey Group.
My Lords, my right honourable friend the Secretary of State for Foreign and Commonwealth Affairs made a statement on Iraq in another place on 12 October, in which he made clear that the report provides chapter and verse as to why the policy of containment was not working.
My Lords, I am surprised, because, as I read the report, the policy of containment was clearly working. Can the Minister explain why the ISG, which, as I understand it, contained British and Australian members as well as Americans, appears to have been accountable only to the US Congress, instead of also to the British Parliament? Does she agree that, in the light of the evident failures of intelligence analysis, the role of the intelligence services and their links to their American counterparts should be a matter for fuller openness and parliamentary accountability, rather than their being answerable only to her Majesty's Government?
My Lords, on the noble Lord's second question about the reporting relationships of the intelligence services, he will know that there is a clear process and parliamentary involvement in the scrutiny of the work of the intelligence services. At this point, we see no reason to change those reporting relationships.
The noble Lord's first point has been dealt with a number of times across this Dispatch Box. I understand that the report was made to the United States, but it is of course widely available. It is on the website and open for anyone to read.My Lords, does my noble friend agree that the ISG report reveals the frightening success of the web of corruption and bribery with which the Saddam regime tried to snare other parties, especially permanent members of the UN Security Council, into ending UN sanctions and that it also reveals the plans kept in place for restarting the chemical, biological and nuclear programmes of Saddam? Is it not interesting how little attention the media seem to be focusing on that frightening picture of the terrible threat that that regime constituted?
My Lords, my noble friend is quite right. While the report confirms that there were no WMD stockpiles in Iraq, it makes very clear Saddam's intention to resume WMD programmes once sanctions were lifted. It shows that he was in multiple breach of UN Security Council resolutions; was pursuing an aggressive strategy to subvert the Oil for Food programme and bring down sanctions; and was thus eroding the policy of containment.
My Lords, as the Minister said, the ISG report contains extensive evidence of the flouting of the UN oil sanctions by Iraq. Can the Lord President give us any further details about the investigation into the alleged corruption of the sanctions regime contained in the ISG report and, in particular, the abuse of the Oil for Food programme? I have been asking about the Oil for Food programme abuse by the UN for many years. Was there any intelligence of that at the time? What steps are the Government taking to press the UN to prevent any similar abuse recurring within its organisation?
My Lords, the noble Baroness will be aware that the Volcker commission is investigating the Oil for Food programme. I am unable to give the noble Baroness further details of those investigations today, but if there is further information, I will of course make it available to her in writing. Once the results of the commission are known, the UN will look at them very closely to see what lessons there are to be learnt for other aspects of its programme.
My Lords, does my noble friend agree that we would be doing the people of Iraq a much greater service if, instead of trying to analyse the genesis of what has happened, we all agreed on where we are now and what needs to be done in future, which is concentrating our efforts on trying to create a peaceful Iraq, a democratic Iraq and a prosperous Iraq? That needs to be our priority and we need to be encouraging the international community to join with us in that process to make it happen.
My Lords, although I totally agree with my noble friend, it would be wrong not to recognise the deep feelings that exist on the issue. I respect that, and the Prime Minister and other members of the Government have made it absolutely clear that they respect those differences and that some were very clearly against the war. However, I agree with my noble friend that we need to look to the future. We need to consider what we can do to support the people of Iraq in their pursuit of democracy and to bring security to that country.
My Lords, the previous supplementary question notwithstanding, do not the Government agree that the heart of the problem for this country over the Iraq war is that there has been a regrettable elision in public discussion of what is, at least for some of us, a debatable reason for going to war in the first place and the supposed beneficial consequences of having done so?
My Lords, we made absolutely clear the basis on which we were going to war, which was the failure of Iraq to comply with Security Council resolutions. I have reread the Prime Minister's Statement to Parliament in March last year; I have read Statements made by Ministers from the Dispatch Box; and the legal basis for going to war was made absolutely clear. I acknowledge that there are those who disagree with that, but there is a certain amount of rewriting of history here. I strongly believe that, having been a Minister in the Foreign Office at the time, having worked very hard indeed with Foreign Office colleagues to get a second Security Council resolution and remembering that, very close to the point where war was declared, Saddam Hussein and the Iraqi government were asked to comply one last time with a set of conditions to which they did not respond.
Submarine Sales
3.09 p.m.
asked Her Majesty's Government:
What was the net cost of the sale of four Upholder submarines, taking into account procurement costs, maintenance before sale and the price obtained from the Canadian Government.
My Lords, the acquisition cost of the four Upholder submarines was some £900 million at 1992–93 prices. The value of the lease-to-buy arrangement with Canada, which includes the four submarines, training and initial spares, is some 610 million Canadian dollars.
Maintenance and refurbishment costs of the submarines are commercially sensitive, and I am withholding details in accordance with Exemption 13 of the Code of Practice on Access to Government Information.My Lords, I thank the Minister for her partial Answer to my Question. I am sure all your Lordships would like to join me in expressing sympathy to the family of the Canadian sailor who so tragically died in that fire and wish a speedy recovery to the other officers who are injured.
The Answer misses the key point about the maintenance. There were some 10 years between the purchase of brand-new submarines and their being sold on to the Canadians. Will the Minister ensure that the Ministry of Defence conducts a full review into whether the maintenance was adequate during that period?First, my Lords, I should like to say that the Government wish to be associated with the noble Lord's condolences to Lieutenant Saunders's family and friends.
On the issue of maintenance, the submarine met all appropriate Royal Navy standards for acceptance and was ready for the handover on 2 October. She was ready to be brought into operational service. Canada decided to purchase the submarines after its teams undertook extensive surveys of the vessels and had thorough negotiations with UK MoD.My Lords, it is a bit like buying a second-hand car—"one careful owner, very good nick, passed the MoT". I feel very sorry for the people who have been killed or injured. Is there not a case for some independent MoT test on dodgy MoD equipment that gets sold off to other people?
My Lords, it is not at all the situation, as my noble friend puts it, that the submarines were dodgy. Canada decided to purchase the submarines after extensive surveys of the vessels and after negotiations with UK MoD. My noble friend will know that, in defence procurement, vessels are purchased and sold on all the time. For instance, we have recently sold frigates to Chile and Romania.
My Lords, these Benches would also want to associate themselves with the condolences expressed by the noble Lord, Lord Garden.
Would the noble Baroness tell the House something of the investigation that is taking place with our Canadian allies on what went wrong with HMCS "Chicoutimi"?My Lords, a board of inquiry has been convened. I hope that the noble Lord will be interested to know that there is a UK MoD representative on that board, which is now in session. It will investigate the incident thoroughly. It would be inappropriate to speculate on the outcome.
My Lords, have the Government made any provision for litigation or compensation to the Canadian Government? If they have no estimates, could they at least say from which budget that litigation or compensation would be paid?
My Lords, I am afraid that it is not possible for me to speculate on these matters as a board of inquiry has been set up. That board will investigate the incident and we cannot pre-empt the outcome of that inquiry. However, as for the costs of rescue, Canada will not be charged for any efforts to prevent loss of life. But it is far too early to say what additional recovery costs there will be and where those costs will fall.
My Lords, in her original Answer, the noble Baroness gave the purchase price in pounds and the sale price in Canadian dollars. Would she be good enough to keep to one currency and let us know what the price was in pounds?
My Lords, I am sorry, as somebody famously said, I cannot do that in my head just now.
The Lord Chancellor: Leave Of Absence
My Lords, may I take the opportunity to inform the House that I will be undertaking a ministerial visit to Liverpool and Newcastle on Monday 18 October? Accordingly, I trust that the House will grant me leave of absence.
Housing Bill
3.15 p.m.
My Lords. I beg to move that the Report be now received.
Moved, That the Report be now received.—( Lord Rooker.)
My Lords, I beg leave of the House to protest at the amendments that we have received today at Report stage—10 pages of detailed amendments. I know that some of them are in response to issues that we raised earlier, but for us to receive them only this morning in order to discuss them this afternoon is quite unacceptable. We have been trying to do what we can about them today, but it is impossible for us to deal with them this afternoon. I hope that the Minister will reconsider his attitude to these amendments at this stage.
My Lords, I associate myself with the comments of the noble Lord. I recognise that the Government tabled these amendments in response to discussions in Committee and to amendments we have tabled. But given that, and given the discussions that have gone on in between—between outside bodies, ourselves and the Government—it was very discourteous not to tell us yesterday that these were being tabled. I hope that the Minister can think again about whether we should discuss them today.
My Lords, can I in the most friendly and comradely spirit possible tell the House a story? The amendments have nothing to do with discussions in Committee—although in some ways they could be connected.
I set a deadline for government amendments being tabled for Report stage of 4 October. I said that nothing else would be tabled after 4 October because the Opposition are not getting enough time to consider amendments. The only amendments that were tabled after that date were minor and technical, for which I set a deadline of 6 October. Last week I resisted blandishments from around Whitehall—from No. 10, the Cabinet Office, the Home Office and ODPM—and I flatly refused to have my name used to table any government amendments of any kind on this issue. That was it, I said—the deadline has gone; we set it in order to have a decent discussion. The only reason that this group of government amendments was tabled on Monday evening and published on Tuesday evening was in response to the opposition amendments tabled on the "no rent payable" issue—a shorthand term for this part of the Bill. It was in response to the fact that the Opposition had tabled amendments. If the Opposition had not tabled any amendments, I can assure the House that there would have been no government amendments. because I flatly refused to introduce new business. The only reason that the government amendments were tabled was that, following discussions between my officials and officials representing the two Opposition Front Benches, we had sight of their amendments before the Public Bill Office did. I am just telling the House a story. I am telling it as a story because I understand the annoyance, but we have to get the facts right. It was only because we knew what was being tabled by the Opposition that I was prepared to say that the Government could table amendments only to opposition amendments. If there are no opposition amendments, I said, then we do not do anything. So it was as a result of the Opposition tabling amendments on the "no rent payable" issue and discussions between the advisers to the opposition parties and my own officials that the Government tabled these amendments. Otherwise we would not have tabled them: I can assure the House of that. That would have been the end of the matter. The Government would have had to settle for the Bill as it was. I do not know what might happen at Third Reading as that is too far ahead. I regret that the amendments have appeared. They are starred. If we were in another place, where we have proper orders of business—sorry, they have proper orders of business: a slip of the tongue—starred amendments would not be called by the Speaker. If everybody wants to take all the "no rent payable" stuff away today—fine. But it would not make sense to debate the opposition "no rent payable" amendments, because my response to them is the government package. I am not going to debate that. It does not make sense to have that debate. If we can achieve agreement between now and Third Reading, we are prepared to make amendments to achieve agreement. There is no difference between the Government, the Liberal Democrats and the Conservatives on this. The package is almost agreed, and that was the point of exercise. I am very grateful for that. As I said, if the Liberal Democrats and the Conservatives had not tabled their amendments, the Government would not have had the chance to table their package of amendments in lieu. I had said that there was a deadline and we were going to keep to that. I felt that too much new material had gone into the Bill at the last minute in Committee and that it was not fair on the Opposition. That is the story and where we are. I hope we can make good progress on the Bill today. I would be quite happy if all of this was taken away as a package, but I cannot say what might happen on Third Reading. I cannot guarantee that this issue will be settled on Third Reading because I do not deal with the timetable. This is a big part of the Bill, but there is agreement on it. It is not as though there is disagreement between us on the substance. I am happy to leave it there. As I said, the government amendments would not have been tabled were it not for the opposition amendments. They were tabled after discussions between officials on both sides.My Lords, the Minister's comments are extraordinary. Whenever we table our amendments three days before a Bill's various stages, as we are required to do, will the Government table amendments to those amendments? Is that what he is suggesting? We tabled amendments to a Bill that the Government proposed, but the Minister said that he tabled his amendments because of our amendments.
I can say categorically that there have been no discussions at all with anyone supporting the Conservative Front Bench. Those supporting us knew nothing about these amendments until the middle of this morning. So what the Minister said about talking to us is not true.I repeat, my Lords: my officials had sight of the amendments tabled by the Opposition parties before those amendments went to the Public Bill Office and were published. We knew what was being tabled. That is why we continued the legalistic work on preparing our amendments for tabling. That is the only reason why they were tabled; the matter was otherwise on ice. The final bits and pieces that were put together by parliamentary counsel and the lawyers were proceeded with on the basis that we knew that the two Opposition parties were tabling relevant groups of amendments. Those are the facts.
I watched what was happening last week but was concerned about only one point—that there should be no new government amendments. The only concession was that, if the Opposition were going to raise the "no rent payable" issue and we got a package that we thought was agreeable, it might make sense to bring the package forward. Let us be absolutely clear that such a package is good for the tenants and good for the landlords. I cannot be accountable on this. I am simply repeating the fact that my officials had lots of discussions in the Friday-Monday period and into the middle of last week to find out what was going to happen. Noble Lords opposite can shake their heads. I am not saying that they were deeply involved. I was not deeply involved. I was simply on the receiving end of the possible results of discussions. The bottom line is that the government amendments on this package were not going to be tabled at all. This issue was not going to be reraised, and we would have had to live with the Bill, inadequate as it is, simply because the 4 October deadline had been missed due to various protracted discussions in Whitehall. Once the deadline had been missed, I said, "That's it. We are not doing it".My Lords, I do not want to prolong this too long. Problems sometimes occur in our first week back because we were not here the previous week when some of the conversations that might have taken place did not occur. However, this situation was extremely unfortunate. If this type of situation arises in future, I hope the Minister will at least inform the Opposition parties when such amendments have been tabled on the eve of their debate. It would have been possible to do that by e-mail or in other ways. If that had happened we would have a much easier situation than the rather tense one we face. I believe everyone is working towards the same objective. I hope that, today or in the future, we will find the right way to solve this. There really was an unfortunate lack of communication.
Report received.
Clause 3 [ Local housing authorities to review housing conditions in their districts]:
moved Amendment No. 1:
Page 4, leave out line 2 and insert—
"(iv) Chapters 1 and 2 of Part 4 (management orders);"
The noble Lord said: My Lords, grouped with Amendment No. 1 is a substantial group of government amendments that were tabled by 6 October. I make no point about that because these are not major amendments. The amendments are split into about six groups. I shall briefly outline the substance of each group. It will not delay the House very long.
Amendments Nos. 1 to 37, 78, 218, 224, 226 and 237 provide that where reference is made to interim or final management orders under Part 4, that reference is amended to include all management orders under Chapters 1 and 2 of Part 4. In effect, the references are amended to include empty dwelling management orders. This group of amendments is consequential on the introduction into Part 4 of empty dwelling management orders. We introduced those in Committee.
Amendments Nos. 47, 51, 52, 80, 81, 225, 227 and 228 provide that where a reference was previously to interim or final management orders under Part 4, the reference is amended to include only management orders made under Chapter 1 of Part 4. In effect, the references are amended so as to exclude empty dwelling management orders.
Amendments Nos. 88, 94 and 139 replace the existing interpretation provisions in Clause 97(5) and (6) and Clause 105(6) with a new interpretation provision sited at the end of Part 4. The effect is that the new interpretation provision applies to the whole of Part 4.
Amendments Nos. 140, 141 and 142 update the index of expressions within Part 4.
Amendments Nos. 80, 93, 95, 114 to 148, 137, 143, 144, 108 and 104 introduce new provisions in respect of the right of third parties in connection with interim and final management orders. Almost identical provisions are already in the Bill in connection with empty dwelling management orders. The amendments provide that where a third party has an estate or interest in the property and can exercise those rights—for example, to restrict the number or types of persons who can occupy the house or, in the case of a mortgagee, prohibiting letting—those rights do not apply when an order is in force.
The amendments also provide that a person whose rights have been disapplied may make a claim for compensation to the local authority in respect of that loss. If the claim, or the amount of compensation, cannot be agreed with the local authority that person can refer the matter to a residential property tribunal for determination of the issue.
On Amendment No. 107, Clause 118 is concerned with revocation of final management orders and is drafted in the same form as Clause 108, which deals with the revocation of interim management orders. However, the word "other" that appears in subsection (4)(b) of Clause 108 is missing from the corresponding provision in Clause 118. This amendment rectifies the omission.
Amendment No. 138 is intended to address an issue raised by the noble Lord, Lord Hanningfield, during our debate in Committee on 13 September, with regard to empty dwelling management orders. The noble Lord asked whether we would give further consideration to the legal complexities that might apply where an EDMO is proposed in respect of a leasehold dwelling and whether, in fact, given those complexities, the power ought to be confined to freehold interests only. The issue is equally relevant to the operation of interim and final management orders under Chapter 1 of Part 4.
We consider that it is essential that these powers apply to dwellings that are subject to leases. Indeed, if they did not, it would provide a significant loophole for owners who wanted to be obstructive. They would simply have to enter into a sub-lease with a person who had no intention of occupying the dwelling to put the dwelling out of the scope of the Bill. The amendment provides for regulations to be made by the appropriate national authority to supplement the provisions of Chapters 1 and 2 of Part 4 where a local housing authority is treated as a long leaseholder under a management order.
3.30 p.m.
The intention of the management order is that the local housing authority takes over the management functions of the property but leaves the ownership in the hands of the original owner. That owner is still able to dispose of his interest in the property or indeed to mortgage it. In the case of a property held on a long lease, it may not always be apparent whether a particular function relates to management or ownership. Some situations might arise where there is a mixture of both.
The new provision in the amendment will permit regulations to be made by the appropriate national authority to clarify who must act or who is entitled to do what in such cases. The delegated power is limited as it permits only the making of provisions supplemental to Chapters 1 and 2 of Part 4. It does not extend to overriding any provision in the Bill or any other enactment. The new clause sets out examples of how the power may be exercised; for example, to identify the rights and liabilities of the local authority, the original leaseholder and other persons having an estate or interest in the property. I beg to move.
On Question, amendment agreed to.
Clause 4 [ Inspections by local housing authorities to see whether category 1 or 2 hazards exist]:
moved Amendment No. 2:
Page 4, line 34, at end insert—
"(c) a group of not less than ten electors registered on the electoral roll within that parish or district."
The noble Baroness said: My Lords, the amendment is short, simple and clear. We hope that, unlike the last time, the Minister will have a change of mind and accept it. Unlike the previous amendment on the issue, Amendment No. 2 now specifies the number of individuals within a particular parish or district that would have to come together to register an official complaint about the condition of a local property.
I readily admit that we are never going to get the exact number perfect. However, we believe that 10 or slightly more individuals is a suitable figure to have a shared concern that should be investigated by the relevant housing authority. In specifying the number of individuals required in that context we are placing a safeguard against individuals bearing grudges who could make repeated complaints.
We should surely encourage local people to become more involved in their neighbourhoods, including involvement with the state of local housing. What better way to do that than by giving them an avenue to raise legitimate concerns, albeit that they will not be able to do so on their own but will have to obtain the support of other people who live nearby? I beg to move.
My Lords, we debated this issue before in Committee. Our arguments against it are substantially the same, but I can of course see the point at which the noble Baroness is trying to arrive. It was one of the subjects that my noble friend Lord Rooker addressed in his follow-up letters to colleagues after the Committee sittings.
We had a thorough debate on the clause's operation in Committee and it would not be right for me to repeat all the points that were made then. To summarise, Clause 4 replaces Section 606 of the Housing Act 1985—legislation passed during the noble Baroness's party's time in government. That section places a duty on the proper officer of a local authority to make a report to the authority if he considers that a dwelling house or an HMO is unfit for human habitation or that an area should be dealt with as a clearance area. It also requires the proper officer to inspect the property or area in response to a complaint from a justice of the peace or a parish or community council that the property is unfit or that the area should be cleared. Government amendments in another place reduced the prominence the clause appeared to give to complaints made through justices and parish and community councils, which the noble Baroness will recognise are in the minority. It gives more emphasis to the day-to-day responsibility of authorities to determine whether an inspection is necessary, both in response to complaints and as a follow-up to their reviews of housing conditions in their area. Subsection (1) now requires a local authority to consider whether to inspect a property in its area or to establish whether there is a category 1 or category 2 hazard. That duty can arise either from the review of housing conditions under Clause 3 or for any other reason. The designation as official in subsection (3) of complaints by a justice or a parish or community council is certainly not intended to denigrate the importance of other complaints of the kind that local authorities receive directly in the ordinary conduct of business. We think that Clause 4 strikes a reasonable balance between the need for a tenant to have access to someone to complain to and the need for an authority to conduct its business efficiently and effectively. Amendment No. 2 would add 10 electors from the electoral roll to those who can make an official complaint. The attempt to make official complaints from other sources does not help us any more than the previous attempt to amend the clause. I am sure that the noble Baroness will not object to my using the same arguments that we set out in our correspondence on 11 October dealing with a number of points made in Committee. One of those was that a tenant who is aggrieved by an authority's failure to act on a complaint need only find the nearest justice of the peace to ensure that the complaints are dealt with and an inspection undertaken. It may be impossible and may not be appropriate to engage 10 or any other number of registered voters that could be proposed in a complaint relating to the living conditions in an individual dwelling. In seeking to protect local authorities from an abuse of the process the noble Baroness may inadvertently ensure that those with genuine grievances who need to have their complaint made, heard and recognised, may make things so much more complex in terms of the time and effort required that it will have a serious and perhaps adverse impact on the point of the aggrieved person. I hope that she will feel able to withdraw her amendment.My Lords, I thank the Minister for his reply. I am of course aware of the extensive and detailed responses we received. The amendment seeks precisely to support a tenant aggrieved by the local authority's failure to act. We are talking about a local authority that will not move and has done nothing, where there is still a requirement to give an extra oomph to what it is going to do. The amendment would not rule out a tenant being able to go to a justice of the peace, nor would it rule out the parish or community council making a complaint. It would add an extra limb, which is that if a small number of people also supported that view it would be termed an official complaint.
I do not understand the Government's obduracy. We all want to ensure that local authorities inspect properties that are deficient and causing problems. It is unfortunate that the Minister will not accept the amendment, but in the light of his obduracy I beg leave to withdraw it.Amendment, by leave, withdrawn.
moved Amendment No. 3:
Page 5, line 9, at end insert—
"(8) The authority must make available to any interested parties upon request, written or verbal, any report made to them under subsection (6)(b)."
The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 39 and 40. We are trying to bring greater transparency to the process of a local authority making a demolition order and establishing whether a category 1 or 2 hazard exists in a property. Those are serious steps that local authorities can take. Some of their decisions may be controversial. We therefore have a duty to ensure that as many people as possible are aware of what is happening within a neighbourhood and of the decisions being taken by the local authority.
In Committee the noble Lord, Lord Bassam, commented that he understood the intent behind the group of amendments and was slightly sympathetic towards them. I hope he is in as good a mood today as he was then, as I hope to convince him of the worth of including these amendments in the Bill.
The Minister asked us a number of questions, such as who was an interested party and how a local authority was to determine that. The short answer to that is anyone who has an interest. Why is there a need to define such a person? Surely if people make the effort to contact a local authority to ask for this information they could, indeed, be deemed to be interested parties.
This is specialist detailed information. It is highly unlikely that an authority would be inundated with hundreds of requests for the latest copy of the council's decisions in regard to demolition orders. The Minister's bedtime reading may well be in such areas but I assure him that that is unlikely to be the case for the rest of the community.
The Minister also thought that there was a vagueness about the oral request and the way in which such a request was logged and made clear in the local authority. However, there can be no vagueness in that regard. If you call into your local town hall and speak to someone in person, or pick up the phone to the council, give your name, details and make a complaint, there is no vagueness. Local authorities receive requests for planning applications and other material all the time and therefore it cannot be beyond them to deal with this matter.
I suspect that the Minister has not been swayed by my commonsense approach. However, he mentioned in Committee that it would be difficult to stop people obtaining this information under the Freedom of Information Act. Therefore, if he can give me a definite assurance that such decisions and information are, indeed, covered under that Act I shall be satisfied and not press the amendments further today. I beg to move.
My Lords, the noble Baroness asked whether I was in a good mood today. I am in a good mood but if she keeps saying that I am obdurate, I am not so sure that I shall stay so happy. I am feeling very generous but I am afraid that my generous spirit does not necessarily extend to agreeing to these amendments. As the noble Baroness said, the amendments are identical to those tabled in Committee. I am afraid that our arguments against them are also substantially the same. We covered the matter in the detailed correspondence that was circulated. We had a thorough debate on the issue in Committee and I do not want to repeat everything that was said then.
However, the noble Baroness is right to draw our attention to the issue of freedom of information. I believe that I argued in Committee that the Freedom of Information Act 2000 ought to be the conduit for the release of information by central and local government, and I stick by that point. The Act provides a right of access to recorded information held by local authorities although, of course, it creates some exemptions from the duty to disclose information in certain cases. Obviously I cannot be specific as without the details of a particular case in front of me it would be wrong of me to say whether or not a request for a copy of a report by an inspector carried out under Clause 4 would be exempt. I do not want to speculate about that. The matter would depend very much on the circumstances although my general feeling is that in most cases the information probably would not be exempt. It certainly would not be if it conformed with the legislation and the Data Protection Act 1998. The measure will probably go some way to provide the necessary rights to access information that is held by local authorities. I believe that we can agree that local authorities have a good record of being open and sharing information with members of the public. The other important point here is that we are talking about a relatively small number of official complaints that we expect to be made under Clause 4. The circumstances under which the terms of the amendment would be likely to be used would probably be very limited indeed. Therefore, we believe that the amendment is unnecessary. Clearance declarations must follow the very careful procedures that are set out in Section 289 of the 1985 Act, which require very careful consideration before a clearance order is confirmed. Authorities will need to be open about their intentions should they subsequently decide that they want to confirm a clearance declaration. I do not see that there is likely to be an information deficit here. Local authorities have a good track record. The public will have access to information rights under the Freedom of Information Act 2000. I believe that in nearly all circumstances there will be little difficulty in members of the public gaining access to the kind of information that an inspector might provide. I hope that with those reassuring words, and certainly given the spirit of what we are trying to achieve through the Freedom of Information Act and the Data Protection Act, the noble Baroness will not press the amendments.3.45 p.m.
My Lords, I thank the Minister for his reply. We shall have to hope that the Freedom of Information Act is applicable to the circumstances that I have described. Like the Minister I do not think that the number of people seeking this information will be enormous. However, it is very likely that those who do seek this information will be entitled to have it.
I noticed that the Minister did not refer to an error in the previous version of the Bill which I believe has now been corrected. I believe that there was a misprint under subsection (6) of the clause. I understand that that matter is now covered in subsection (2). I am sure that the Minister will want that to be recorded in Hansard. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 5 [ Category I hazards: general duty to take enforcement action]:
[ Amendments Nos. 4 and 5 not moved.]
Clause 7 [ Category 2 hazards: powers to take enforcement action]:
[ Amendments Nos. 6 and 7 not moved.]
Clause 8 [ Reasons for decision to take enforcement action]:
moved Amendment No. 8:
Page 7, line 29, at end insert—
"( ) Where the enforcement action relates to a category 2 hazard the statement prepared under subsection (2) must include a statement of why the authority has decided that it considers it necessary to take any action rather than taking no action at all."
The noble Lord said: My Lords, due to the potentially different situations that could fall within the scope of category 2 hazards, it is important that environmental health officers identify why it is necessary to take some kind of action in the first place.
Currently, Clause 8 requires the authority to explain why it has decided to take a particular course of action. The purpose of the proposed new subsection would be to ensure that the authority explained why it was taking action in the first place as well as then going on to explain the course of action it considers to be most appropriate. Again, it is important that resources are not concentrated on trivial matters. The need to explain why it is necessary to take action in the first place will lead to better decision-making. It will also enable the recipient of the notice to decide whether it is appropriate to appeal. The notice should explain why the action needs to be taken. The current wording of Clause 8 has not addressed this particular aspect. I beg to move.
My Lords, I say to the noble Baroness, Lady Hanham, that I had a really interesting reply to Amendments Nos. 4 and 6.
Clause 8 was added by a government amendment in Committee. It was added in direct response to the Joint Committee on Human Rights. It requires a local authority to give reasons to a person on whom a notice is served for the choice of a particular course of action rather than another under Clauses 5 or 7. Amendment No. 8 would require that when enforcement action relates to a category 2 hazard the statement prepared under subsection (2) of the clause must include a statement on why the authorities decided to take action rather than taking no action at all. Such an amendment is unnecessary. Clause 8 already covers category 2 hazards. An improvement notice must give details of the hazard. Under Clause 8, it follows that a reason for the action is an explanation of why any kind of action was necessary. Otherwise, the authority would use its discretion not to act in the first place. That sounds a bit convoluted, but the clause, which is thoroughly justifiable, is a direct result of the work of the Joint Committee of both Houses. The amendment is not necessary to do the job that the noble Lord thinks is required, so I hope that it will not be pursued.My Lords, I thank the noble Lord for that answer. Obviously, I was pleased that the amendment was added by the Government in response to the Joint Committee's report. I have to accept what the Minister said. I was only trying to improve the Government's amendment, but if the matter is covered by this latest amendment, I must accept it. I beg leave to withdraw the amendment.
Amendment, by leave. withdrawn.
Clause 9 [ Guidance about inspections and enforcement action]:
moved Amendment No. 9:
Page 7, line 40, at end insert—
The noble Lord said: My Lords, Part 1 of the Bill introduces the health and safety rating system involving an assessment of residential accommodation, and sets out the options to enforce compliance. It allows for guidance to deal with enforcement decisions, which will be issued either by the Secretary of State or the Welsh National Assembly.
The purpose of the amendments is to set out in the guidance the matters that should be considered when any decision is taken, whether in relation to setting enforcement action or appeals. It is vital to take into account the age and character of a property, as one cannot easily bring all properties up to modern standards.
There are similar problems with listed buildings, when a balance has to be drawn between historical features of the building and the cost of any work, which it is important to ensure is not unreasonable. If it is excessive, it will be passed on in higher rents. A similar amendment was tabled in Committee, when the Minister said that guidance would be an appropriate way forward. The amendment results from the Minister's comments.
Amendment No. 46 is similar to Amendment No. 10. Throughout, the Government have maintained that they want to ensure a light touch in regulation—particularly on licensing of houses in multiple occupation. However, that is not stated anywhere in the Bill. On the contrary, the Bill provides for what could be a very heavy-handed approach, which is unnecessary in many cases.
Implementation of the Bill is in the hands of local authorities. The Government have acknowledged throughout that the private rented sector consists mainly of very small businesses. With the buy-to-let boom, a majority of landlords own fewer than three properties. There is therefore a considerable risk of disinvestment if heavy burdens are placed on small landlords. It is vital to recognise that many HMOs provide relatively low-cost affordable housing. Those will be lost to the market if over-the-top requirements are imposed.
The amendment is intended to emphasise the matters that the authorities should consider when making decisions relating to HMO licensing under Part 2 of the Bill. It sets out the factors that should be considered when any decision is made, whether in setting standards or imposing conditions.
It is vital to take into account the age and character of a property, otherwise we shall have new wine in old bottles. We cannot easily bring Victorian and Edwardian properties up to modern standards. Similarly, there are problems in dealing with listed buildings when, as I said, a balance has to be drawn against the historical features of the building.
By accepting the amendment, the Government would go some way to reassuring landlords that light touch regulation will become a reality. I beg to move.
My Lords, I shall deal with Amendments Nos. 9, 10 and 46 in that order, and separately. Amendment No. 9 is identical to the one tabled in Committee by the noble Lord. I appreciate that his concerns continue. The arguments against the amendment are substantially the same. Fears continue about the housing health and safety rating system and how it will operate. I shall try to allay those fears again as I have obviously not succeeded in Committee.
Clause 9 enables the appropriate national authority to give guidance to local housing authorities on the exercise of their functions under Part 1. That guidance will be about how properties are to be assessed using the new rating system and how authorities may act by using the enforcement options provided under Part 1. Amendment No. 9 would add to the topics on which guidance may be given. I understand the desire to give a high profile to fire safety. I would certainly agree to that as it should be considered one of the important matters to which authorities must have regard. It is very important, as are all the other 28 hazards, should they be present to a serious degree. We answered many of the points raised by the noble Lord in Committee, which I shall summarise again without going into great detail. First, I refer to the qualifications for environmental health officers. The new housing health and safety rating system is a change in approach, but it is still essentially an enforcement tool. It is not the first time that there has been a change to this kind of checking on properties, so environmental health officers are well versed and trained in swapping from one system to another. I hope that this system will be a vastly superior tool compared with the one that it replaces. Environmental health officers are already well trained in risk assessment methods and can cope with the rating system in principle and practice. We therefore do not see a need for a new qualification, and have no evidence that the profession is asking for one. We accept the need for training to ensure that environmental health officers are familiar with the new system. They certainly need briefing and training in far more detail than Ministers receive. I remember being taken through the new process some considerable time ago. Even my refresher was before the draft Bill was published. I fully accept that professionals on the job will need to be trained, and we shall ensure that there is adequate training and will fund the start-up of such training. The amendment envisages that guidance can advise in every case on how long an inspection could or should take. Inspections are likely to differ considerably. A Part 1 function as regards a category 1 hazard will have been fulfilled once the authority has carried out an inspection under the regulations to be prescribed under Clause 2, and has then taken appropriate action required under Clause 5. New subsection (1)(g), which would be inserted by the amendment, does not make it clear in what circumstances authorities may need to compensate landlords. Landlords will have the right to appeal against improvement notices and prohibition orders, and compensation may be an outcome of an appeal. But compensation should be dealt with on appeal, when the expertise of the residential property tribunal will be available. We do not believe that compensation is a matter for Clause 9 guidance. Advice on fire safety, as well as the advice on cold and damp, full structural problems and all the other problems that can arise will appear in the technical guidance to be given under Clause 9. The rating system is a form of risk assessment, which the new technique is all about. However, it is clear that houses in multiple occupation are likely to contain higher risks in relation to fire safety. There should be adequate means of escape from fire from all parts of a house in multiple occupation. Fire precautions and fire-fighting equipment will be required. The guidance under Clause 9 will deal with that and will be as comprehensive in its treatment of fire as the other hazards. It is also worth remembering that housing authorities will need to consult the fire authority over fire safety action. We believe that the legislation already contains sufficient references to fire safety. The purpose of Amendment No.10 is to add further topics that the appropriate national authority may—not must—include in the guidance under Clause 9. I explained that the guidance under Clause 9 will fall into two categories: guidance about the way in which properties are to be inspected; and the way in which hazards are to be assessed using the new rating system. I shall not try to argue that authorities should consider at least some of the topics in the amendment, but we do not think that it is necessary to provide for those separately. If some were listed, that would seem to imply that others not mentioned were unimportant, whereas of course that might not be the case.4 p.m.
Some of the items listed in the amendment are obviously not ones that can be dealt with in detail in broad guidance. For example, the nature and extent of works carried out will depend on the hazard. The effect of an improvement notice under Clause 1 I must be to remove a category 1 hazard, although it could of course go beyond that. What will it take to remove a hazard from cold in a particular property? It will be for the authority to decide how that hazard could be mitigated and therefore the extent and nature of the cost of the works. If no one has the resources and the remedial work cannot be started, the authority will have to consider a prohibition order. All those issues can be included where there is something useful to say in the guidance.
We have consulted on the draft enforcement guidance and we shall work through that in consultation with the key stakeholders to ensure that the guidance is as helpful as possible. Clearly, for example, we need to say something about listed buildings. But we think that to write some items on the face of the Bill is to invite additions on every single topic until we end up with something that looks like an index to the guidance itself. That would be going too far, but I am confident—and I hope that the noble Lord will take it from me—that we can cover these issues in the guidance.
I turn to Amendment No. 46. I fully accept that an amendment along the same lines was tabled in Committee in relation to general functions under Parts 1, 2, 3 and 4 and, indeed, Part 7. I agree with the spirit of the amendment. It is common sense that local authorities should have regard to the matters listed in items (a) to (f) in the amendment in exercising their houses in multiple occupation functions.
During our debate on HMO licensing, we sensed that both sides of the House trusted, and indeed had to trust, the local authorities to do things properly and to exercise their discretion in an appropriate way. We have no reason to believe that a reasonable local authority will not take into consideration the matters listed, but we think that it is a step too far to put them on the face of the Bill as a statutory duty.
The primary function of a local authority under Part 2 is to ensure that a licensed house is suitable for the number of occupants for which it is licensed, although it should take account of the age of the building or the costs likely to be incurred in requiring works to be carried out. We do not think that an authority should follow sets of principles that might thwart it in carrying out its primary function. On the other hand, what can be required may already be limited by statute, such as where listed building consent may be required.
We do not think that the amendment is necessary as, in most cases, local authorities will take account of matters such as those listed in the amendment. If, in a few cases, they fail to do so, the licence holder will have recourse to appeal against that decision. Therefore, a heavy-handed, unreasonable local authority cannot come along and put onerous conditions on property owners because there will be a perfectly reasonable appeal system in which people will have confidence. The noble Lord may want to come back to this point at Third Reading, although I sincerely hope that he does not.
We are confident that these issues will be covered, but if we start filling the Bill with too much detail, we shall end up wanting to put in even more. I hear myself saying things that I used to criticise Ministers for saying years ago when I was in Opposition in relation to similar amendments. It is so true, but I can well see the damage that would be done to the Bill if we put in some things and left out others, which people would then think were not important. That would send the wrong signals.
My Lords, I thank the Minister for that detailed reply. As he will acknowledge, I was trying to be helpful by tabling these amendments. Local authorities have to implement most of this area of the Bill and, as I know them pretty well, I think that they will do it well.
I was pleased to hear the Minister say that there will be some finance for training. I do not know how that will be provided but it will be important as many of the measures will be implemented by very small local authorities which sometimes have very few resources. They may well need extra finance and support in order to do so. The Minister said many times that the whole matter is relative to guidance. I hope that between now and Third Reading he will be able to help us a little by writing to us and amplifying the matter. He mentioned that we may want to return to the issue at Third Reading. If it is not clarified a little more between now and Third Reading, we may have to do that. I totally accept that one does not want to put all that detail on the face of the Bill, but we want to make the Bill work well, particularly from a local authority point of view. I heard what the Minister said and I hope that it will be possible to amplify matters for us a little more in writing between now and Third Reading.My Lords, whatever we have available, I shall be happy to share with noble Lords and noble Baronesses opposite.
My Lords, I thank the Minister for that and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 10 not moved.]
moved Amendment No. 11:
Page 8, line 3, leave out "before" and insert "in seeking an affirmative resolution of"
The noble Lord said: My Lords, Amendment No. 11 would ensure that any guidance issued under this clause in regard to inspections or enforcement was properly scrutinised by both Houses of Parliament rather than simply published by the Government. In Committee, the Minister commented that he was willing to go away and have a look at this amendment to consider its merits. I hope that today he is able to give us a positive answer.
Given the encompassing nature of Clause 9 and the power that the appropriate national authority would have under its terms, I feel it is important that Parliament has an opportunity to consider any further guidance that is to be published. I believe that is a sensible and democratic way forward. I beg to move.
My Lords, indeed, we did agree to think again about this matter, but I am afraid that we have come to the same conclusion that we drew previously. The guidance to which the noble Lord referred will deal essentially with technical matters and, of course, the enforcement options available. It is right that we should debate these issues energetically. We believe that we have the balance about right with the guidance being subject to the negative resolution procedure. That should not preclude Parliament giving active consideration to the issues covered by the guidance and it should ensure that those issues are dealt with properly and soundly.
We consider that the quality of the guidance is essential to the proper operation of Part 1 of the Bill, and I can give the noble Lord the assurance that we shall consult extensively on that matter because we want to ensure that we get it right. However, at this stage, we are not persuaded that it is necessary for the guidance to be subject to the affirmative resolution. I am not aware that the Delegated Powers and Regulatory Reform Committee has encouraged us to think again about this matter. By and large, we stick very largely to the committee's advice and guidance on these matters, and it did not draw out this issue for our attention. We think that we have this about right. However—I want to make this clear to the noble Lord—we think that the consultation will be very important and we look forward to receiving comments, particularly from the Local Government Association and the professionals involved.My Lords, I thank the Minister for that reply, although I am disappointed that the Government have obviously not been able to look at the matter again, as they said they would in Committee.
It is good to hear that there are to be extensive consultations. In discussing which areas of guidance it is important should be on the face of the Bill and which should not, we return to our debates on previous amendments and discussions on when things probably do not need to be on the face of the Bill or to be scrutinised by Parliament. Between now and Third Reading, we must assess what we consider to be the really important issues. As I said at the previous stage, I hope that the Government will also give some thought to the matter in order that we can work together to achieve a balance before Third Reading. With that, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 11 [ Improvement notices relating to category I hazards: duty of authority to serve notice]:
moved Amendments Nos. 12 and 13:
Page 9, line 9, leave out "interim or final".
Page 9, line 10, after "under" insert "Chapter 1 or 2 of".
On Question, amendments agreed to.
Clause 12 [ Improvement notices relating to category 2 hazards: power of authority to serve notice]:
moved Amendments Nos. 14 and 15:
Page 10, line 11, leave out "interim or final".
Page 10, line 12, after "under" insert "Chapter 1 or 2 of".
On Question, amendments agreed to.
Clause 14 [ Suspension of improvement notices]:
moved Amendment No. 16:
Page 11. line 28, at end insert—
"(6) An improvement notice shall be suspended where the occupier of the premises impedes or obstructs a landlord from complying with the notice.
(7) Such suspension shall continue until the tenant allows the necessary work to proceed unimpeded or the landlord requires vacant possession.
(8) An improvement notice shall be suspended where following the service of the notice, the landlord has put in hand measures to cause the property to revert to single household occupancy."
The noble Lord said: My Lords, Amendments Nos. 16 and 17 attempt to clarify the status of improvement notices should the property revert from multiple to single occupation. That is to ensure that if a notice were issued to complete improvement work, but the state of the property were to change in the interim—should the property change hands or, as is more specific to the amendment, should a landlord cease to rent out the property and decide to change it to single occupancy—the authority could issue a fresh notice that was applicable to the property under its new status and the status of the original improvement notice would be revised.
Amendment No. 17 is designed to clarify the position of landlords who are faced with obstructive or unco-operative tenants. Under our amendment, the landlord would not be liable for incomplete work or, being unable to undertake any of the work in the notice, if he was prevented from doing so by the tenants.
We believe that these are important amendments so we are tabling them again. The Minister commented in Committee that he had some sympathy with them, but was reluctant to commit himself in full. I would ask him: do they not highlight a genuine area of possible concern? Amendment No. 16 clearly picks out a weakness in the Government's argument where one has a hazard of an obstructive tenant, in effect, prohibiting work on a category 1 hazard to go ahead.
The Minister also commented that it was in the hands of the local authority to decide whether an improvement notice should be revoked if a property reverts back to single occupancy. I am afraid that to us that seems a little hit and miss. I am all for local discretion, but we might be faced with a differing application of this understanding from one local authority to the next. Surely, we need something on the face of the Bill that would make it clear what was required of an authority were such a scenario to arise.
I hope that the Minister can give us some more positive news on these amendments today, or at least ask his officials to have another look at them before Third Reading. I beg to move.
My Lords, as the noble Lord said, these amendments have been debated before. Clause 14 provides for the suspension of an improvement notice made under either Clause 11 or Clause 12 at the discretion of the local authority until a time or the occurrence of an event specified in the notice. Under subsection (2), the time specified may coincide with a change of occupancy. Subsection (3) provides that a specified event may be a breach of an undertaking made by the owner or landlord. Those examples do not prevent other times or events being set out.
We certainly accept that there are some concerns and that those valid concerns fuel this amendment, but we cannot rule out that a tenant may fail to co-operate with the landlord in carrying out remedial work required under an improvement notice. That said, we remain unconvinced that we need a specific provision which relieves the person on whom an improvement notice is served of the responsibility for complying with it, even if he is obstructed in carrying out the necessary remedial works. It cannot be in anyone's interests that enforcement action, on which the local authorities will have embarked for a very good reason, should simply be deferred because the person on whom the notice is served has run into some difficulty. While Clause 29 makes it an offence to fail to comply with an improvement notice that has come into operation, it is of course a defence in any proceedings that the person on whom the notice was served had a reasonable excuse for failing to comply with it. In my view, this provision strikes the right balance. We need to bear in mind that the improvement notice has been served in order to deal with a hazard from which people in most cases occupying these premises need some form of protection. Normally, that would be a very serious situation indeed. We do not believe that the first of the two amendments would work very well. Clause 16 imposes duties and powers on the local authority in relation to the revocation of an improvement notice. An improvement notice must be revoked where the local authority is satisfied that the requirements of the notice have been complied with. In the case of a notice served in response to a category 1 hazard, the authority may revoke a notice only if' it is satisfied that there are special circumstances making revocation appropriate. In the case of a notice served in response to a category 1 hazard in a house in multiple occupation, the local authority may come to the view that reversion of the premises to single household occupancy amounts to special circumstances. But I suggest to the noble Lord that this is a matter that the authority should be free to decide. After all, we hear much from the noble Lord about local authorities being free to make their own decisions. We believe that this is one of those circumstances. It does not follow that reversion has eliminated the hazard, of course, or made it less severe. That would depend on the hazard itself and where on the premises the hazard occurs. I accept that in the generality of cases risks from fire are greater in HMOs than in single household premises. Therefore, the kind of fire precautions required in an HMO might no longer be appropriate, but other equally dangerous hazards may remain, irrespective of the type of property. For that reason I cannot agree that local authorities' discretion should be removed from them entirely when a property reverts. We believe that such decisions are best left closest to where they need to be made and in the hands of the local authorities. I hope that, having heard that, the noble Lord will withdraw the amendment.4.15 p.m.
My Lords, I thank the Minister for that reply. It is somewhat similar to that given in Committee and not as helpful as one may have hoped for, particularly in the case of a house reverting to single occupancy, which would change the situation. There should be some clarity on that situation. I shall consider further whether to pursue the matter at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 [ Revocation and variation of improvement notices]:
[ Amendment No. 17 not moved.]
Clause 20 [ Prohibition orders relating to category 1 hazards: duty of authority to make order]:
moved Amendments Nos. 18 and 19:
Page 14, line 7, leave out "interim or final".
Page 14, line 8, after "under" insert "Chapter 1 or 2 of".
On Question, amendments agreed to.
Clause 21 [ Prohibition orders relating to category 2 hazards: power of authority to make order]:
moved Amendments Nos. 20 and 21:
Page 14, line 44, leave out "interim or final".
Page 14, line 45, after "under" insert "Chapter 1 or 2 of".
On Question, amendments agreed to.
Clause 24 [ Operation of prohibition orders]:
[ Amendment No. 22 not moved.]
Clause 28 [ Hazard awareness notices relating to category 1 hazards: duty of authority to serve notice]:
moved Amendments Nos. 23 and 24:
Page 18, line 27, leave out "interim or final".
Page 18, line 28, after "under" insert "Chapter 1 or 2 of".
On Question, amendments agreed to.
Clause 29 [ Hazard awareness notices relating to category 2 hazards: power of authority to serve notice]:
moved Amendments Nos. 25 and 26:
Page 19, line 37, leave out "interim or final".
Page 19, line 38, after "under" insert "Chapter 1 or 2 of".
On Question, amendments agreed to.
Clause 35 [ Power of court to order occupier or owner to allow action to be taken on premises]:
moved Amendment No. 27:
Page 22, line 22, after "court" insert "or county court"
The noble Baroness said: My Lords, the purpose of Amendments Nos. 27, 28 and 29 is to give the county courts consent order current jurisdiction with magistrates' courts, to make orders to allow action to be taken on the premises. Obtaining access or facilities to carry out works can cause difficulties to owners served with notices. Experience has shown that some tenants are not willing to allow work to be done.
The advantage of an application to the county court is that the county court can make an order, breach of which is punishable as an offence. It can make a mandatory order which can be enforced by a fine and/or imprisonment, so it becomes a criminal matter. Very usefully, that can include the power to suspend a committal order. The judge can allow the tenant in such a situation time to comply with the sanction of imprisonment in default. That can be a useful means of dealing with someone who is particularly recalcitrant when it comes to allowing work to be done. I beg to move.
My Lords, I may be able to satisfy the noble Baroness by pointing out to her that the magistrates' court orders can be dealt with in exactly the same way as county court orders. Section 63(3) of the Magistrates' Courts Act 1980 states:
Section 17 of the Contempt of Court Act 1981 allows that power to be exercised either by the court's own motion or by an order on complaint. I believe that that covers the point made by the noble Baroness."Where any person disobeys an order of a magistrates' court … to do anything other than the payment of money or to abstain from doing anything the court may—(a) order him to pay a sum not exceeding £50 for every day during which he is in default or a sum not exceeding £5,000; or (b) commit him to custody until he has remedied his default or for a period not exceeding 2 months".
My Lords, I am grateful to the Minister for that reply. It is most helpful to have that on the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 28 and 29 not moved.]
Clause 36 [ Power of court to authorise action by one owner on behalf of another]:
moved Amendment No. 30:
Page 23, line 39, at end insert—
"(7) When making an order under this section the court may make provision for the recovery of any costs reasonably incurred by the applicant in carrying out the required action."
The noble Baroness said: My Lords, I can be quite brief. Where action is required to be carried out and the applicant has to go to court, he may well incur expense which would otherwise fall upon the person who is the subject of the order.
The purpose of this amendment is to give the court power to allow the applicant to recover the reasonable costs. Otherwise, the person who is the subject of the order may be relieved of costs. Instead, in the absence of this provision, the applicant has to meet the costs without being able to recover them.
I hope that the Minister will have the same snappy and helpful reply to this amendment as he had for the last one. I beg to move.
My Lords, indeed I have to use only one sentence of the speaking notes. I do not believe that the amendment is necessary because the courts have inherent power to award costs.
My Lords, I thank the Minister for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 39 [ Effect of Part 4 enforcement action and redevelopment proposals]:
moved Amendments Nos. 31 and 32:
Page 24, line 33, leave out "an interim or final management order under" and insert "a management order under Chapter 1 or 2 of"
Page 24, line 36, leave out "interim or final"
On Question, amendments agreed to.
Clause 40 [ Emergency remedial action]:
moved Amendment No. 33:
Page 25, line 19, leave out "interim or final management order is in force under" and insert "management order is in force under Chapter 1 or 2 of".
On Question, amendment agreed to.
moved Amendment No. 34:
Page 26, line 10, leave out from beginning to "the" in line 11 and insert "No later than the day when the authority start taking emergency remedial action (or, if that is not possible) as soon after that day as is possible"
The noble Baroness said: My Lords, the amendment brings the procedure for service of notices in relation to the emergency remedial action in line with that for emergency prohibition orders under Clause 43(3)(4).
While there is an obligation to give notice to occupiers at the moment, the duty to notify others, particularly the owner, is to do so within the period of seven days after the works start. If the occupiers are to be notified at the time the work is done, so should the owner. Otherwise, the owner will be ignorant of what is happening. Indeed, the owner may have commissioned work in the mean time, be faced with questions from the occupiers and, if he has not been served with the notice, may be totally ignorant of what is going on.
I believe that if at all possible the owner should be told before the work starts and, in any event, as quickly as possible after the works have started. The proposed amendment is intended to provide for this to be done. I beg to move.
My Lords, Clause 40 enables a local authority to take emergency remedial action to deal with a category 1 hazard that presents an imminent risk of serious harm to the occupiers of residential premises. Such action may be taken in these exceptional circumstances without prior notice to the owners of the property, but Clause 40(7) requires the authority to serve notice on them afterwards, within seven days from the date on which they started to take the emergency action.
The amendment would require an authority to serve such notice no later than the day on which it started to take action or, if that is not possible, as soon after that day as possible. I recognise the rationale for the amendment is that it would bring the procedures into line with those which an authority must follow when making an emergency prohibition order under Clause 43. However, we believe that the situations are different. In the latter case, the urgency is to have the use of property prohibited in the interests of health or safety. It is therefore essential for the owner or landlord to know of the situation as a matter of urgency, in order that he can do what is necessary to put the prohibition into effect. In the case of the emergency remedial action to which this amendment relates, the top priority is for the local authority to do the necessary work itself, for which Clause 40 provides. Notifying the owner or the landlord is of course essential, but it is not the top priority. As I have said, the top priority is to get the job done. The authority should not be distracted from that task by the need to prepare the kinds of documents necessary to support the ordinary, non-emergency kind of remedial action. This is not shortcutting. The nature of the two emergencies is somewhat different, and that is the reason why there is a different procedure in the Bill.My Lords, I hear what the Minister says. I am bound to say that, if an authority is notifying one person, in this day and age—when you can duplicate, run off and print notices at will from a computer—it is very odd that they cannot notify the owner at the same time. That is probably taking the situation too far. However, I thank the Minister for his reply and, for today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41 [ Notice of emergency remedial action]:
moved Amendment No. 35:
Page 26, line 42, at end insert—
"(f) the reason why the authority consider it necessary to take emergency remedial action"
The noble Baroness said: My Lords, we believe it is important that the local authority spells out why it is taking emergency remedial action. It needs to justify why the ordinary improvement notice procedure is not appropriate.
The authority could run up considerable costs, without the landlord having a prior right to appeal to the residential property tribunal. A statement of reasons is required to accompany an improvement notice. No such provision has been made in the case of emergency action, where surely it is more important that the landlord should be told why the authority is taking this step. I beg to move.
My Lords, I think that I can satisfy the noble Baroness that the amendment is unnecessary, for reasons which I will explain.
As I said earlier, Clause 8 was introduced into the Bill in the light of the concerns expressed by the Joint Committee on Human Rights. It requires local authorities to prepare a statement of the reasons for their decision to take one of the kinds of enforcement actions available to them. A copy of that statement must accompany every improvement notice, copy of a notice, or copy of a prohibition order which is served under the provisions of the Bill. I can confirm that notices of emergency remedial action are regarded as improvement notices for this purpose, by virtue of Clause 8(5). For the sake of completeness, the requirement also extends to emergency prohibition orders. The matter is therefore well covered.My Lords, I thank the Minister for that very helpful reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 [ Emergency prohibition orders]:
moved Amendment No. 36:
Page 27, line 45, leave out "interim or final management order is in force under" and insert "management order is in force under Chapter 1 or 2 of".
On Question, amendment agreed to.
Clause 46 [ Demolition orders]:
moved Amendment No. 37:
Page 30, line 38, leave out "an interim or final management order under" and insert "a management order under Chapter 1 or 2 of".
On Question, amendment agreed to.
moved Amendment No. 38:
Page 31, line 12, leave out "in certain circumstances" and insert "as specified by the appropriate national authority"
The noble Baroness said: My Lords, the amendment would require the appropriate national authority to specify the circumstances in which compensation paid following the making of the demolition order may be repaid.
The noble Minister commented in Committee that this was an area covered by the 1985 Act and was a job for the Lands Tribunal, and consequently was loath to get involved. I can understand such a sentiment: however, I must press the Minister on this issue. Does he not see that there is a potential problem with leaving such a vague and bland assurance on what is actually quite an important matter? I beg to move.
My Lords, I believe that the amendment is unnecessary because the point is covered.
Where a local authority has a duty to take the most appropriate enforcement action under Clause 5 in relation to a category 1 hazard in residential premises, making a demolition order is one of the courses of action available to it, unless the premises are subject to a management order under Part 4. The amendment would require the appropriate national authority to specify the circumstances in which compensation, paid following the making of a demolition order, may be repaid. The amendment would conflict with Section 5(84)(a) of the Housing Act 1985, which was inserted by paragraph 30 of Schedule 15 to the Bill and makes detailed provision for repayments and requires disputes to be referred to the land tribunals. That is why the amendment is unnecessary—it is covered elsewhere.4.30 p.m.
My Lords, I am tempted to say, "of course". I thank the Minister for drawing our attention to that matter, which will be recorded in Hansard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 39 not moved.]
Clause 47 [ Clearance areas]:
[ Amendment No. 40 not moved.]
Clause 49 [ Power to charge for certain enforcement action]:
moved Amendment No. 41:
Page 33. line 38, at end insert—
- "( ) The person on whom a notice order mentioned in subsection (1) is served or who is subject to a charge under subsection (5) may appeal to a residential tribunal in respect of the amount of any such charge.
- ( ) An appeal under subsection (8) must be made within the period of 28 days beginning with the date of the service of the notice or order or the service of the authority's decision on a review (as the case may be).
- ( ) A residential property tribunal may allow an appeal after the end of that period if it is satisfied that there is good reason for the failure to appeal before the end of that period (and for any delays since then before an application is made for permission to appeal out of time).
- ( ) The tribunal may confirm vary or reverse the decision of the authority on any such appeal."
The noble Lord said: My Lords, Amendment No. 41 gives a free-standing right to appeal against the amount of any charge imposed by the local authority in connection with the service of an improvement notice and other orders. At the moment the residential property tribunal has authority to interfere with the charge only if it upholds the appeal against the notice, and so on. The recipient of a notice may consider the amount of the charge excessive. This is often a contentious matter between landlords and local authorities. Therefore, there needs to be a simple means of appealing against such charges. None is provided for at present. Although the Government have a power to prescribe maximum charges a high figure may be fixed. The amount of work undertaken by the authority may not justify the charge which it is seeking to impose, so there should be a way for the recipient to challenge that without having to challenge the underlying notice. I beg to move.
My Lords, I recognise that owners and landlords will wish to object to a local authority charge that they think is unreasonable. It is natural and I fully accept that. However, Clause 49 makes it clear that such charges must be reasonable and, as an additional safeguard, they must not exceed such an amount as the appropriate national authority may specify by order. The current order covering this matter sets a ceiling of £300. We have taken no decision on any future ceiling, but we would certainly expect to consult on any future order. We have to strike a balance. On the one hand, local authorities should not levy excessive charges; on the other hand, it is legitimate for them to seek to recover the reasonable cost of making privately rented properties healthy and safe, rather than increase the burden on council tax payers generally.
There has not been a case made for creating what would be another category of appeals to the residential property tribunal, which will already have much to do under the Bill. The proper approach to this matter is through the ordinary checks and balances that apply to local authorities. There is a limit there now and if we seek to change the limit we will certainly consult on any new regulations. The current situation is not that onerous.My Lords, I thank the noble Lord for that answer. I am disappointed that he would not agree to the suggestion of a further resource for landlords to appeal. I accept that the charges may not be unreasonable at the moment, but they could be in future. I shall have to reconsider the matter, but meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 51 [ Repeal of power to improve existing enforcement procedures]:
[ Amendment No. 42 not moved.]
Clause 55 [ Licensing of HMOs to which this Part applies]:
moved Amendment No. 43:
Page 37, line 10, at end insert—
"( ) any HMO in the authority's district of 3 storeys or above,"
The noble Baroness said: My Lords, this somewhat contentious issue is about how wide we draw the definition of a house in multiple occupation. We noted the Government's intention to set the threshold for the mandatory licensing scheme in secondary legislation, so we do not expect the Government to accept the amendment. It is a probing amendment which will give us an opportunity to debate further why many of us believe that we should have a wider, more inclusive definition of which types of properties should be included in the licensing schemes.
So far Ministers have indicated their intention that the accompanying regulations will require only HMOs with three or more storeys and five or more occupants to be licensed. The Office of the Deputy Prime Minister itself estimates that this will cover only about 120,000 HMOs—about 19 per cent of the 638,000 HMOs that are estimated to be in England. A key concern of many organisations is that the proposed threshold will leave thousands of vulnerable tenants in unidentified and hazardous HMOs because they will fall outside the scope of those considered thus far by the Government. At the very least, all HMOs with three or more storeys should be licensed.
There is good evidence for that. In particular, the 1996 Entec report on fire risk identified all three-storey HMOs as high risk, regardless of occupancy levels. I discussed this in 1996 in another place in a previous Housing Bill. Local authorities have discretionary powers to extend licensing to three storey HMOs with fewer than five occupants, but that will not be sufficient to protect tenants. It will not be that easy to apply for extended areas for additional licensing of HMOs. Even if that does happen, the Minister will have to approve it and it will be limited to a five-year period.
It will be a lengthy process in which local authorities will have to consult all the interested parties on the need for additional licensing of HMOs. Landlords are likely to be the main respondents, so the process may be protracted. The tenants in such buildings are possibly one of the groups that are hardest to reach in a consultation. That process would have to be repeated once every five years and would be onerous. What if there was a future Secretary of State who was not quite as generous as the current Secretary of State? That person would be able to reject any such schemes.
I know that the Government will say that their own proposals are the answer, but it is not a simple answer and is not satisfactory. I know that the Local Government Association is keen to see the scope widened in the definition and has suggested to me a wider amendment than this.
I have put two other amendments in this group. Amendment No. 44 is designed to reduce the time period by which local authorities must have satisfied themselves that there is no Part 1 function to be exercised. Local councils need to take action against seriously unsatisfactory living conditions—category 1 hazards—as well as poor management. I have mentioned the vulnerability of the client group occupying HMOs and the LGA, which represents local authorities who will be involved, believes that the five year time frame is too long. In Committee I moved an even shorter period—one year. I am now changing that to three years, but five years is a long time to leave serious hazards in place. I hope that the Minister will look favourably at that.
Amendment No. 76 refers to the extension of selective licensing. It allows local authorities a third set of general conditions enabling them to apply to extend the circumstances for selective licensing. I know the Government will say that this is another way to extend their proposed category of HMOs.
Under the Local Government Act 2000, local authorities have a duty to promote the well-being of their communities. We believe the current provisions in the Bill are too limited, as they will not allow local authorities the opportunity to exercise that duty in its widest sense. We have said at the previous stage, and outside this Bill, that low demand and problems arising from anti-social behaviour are circumstances where selective licensing could prove a very useful tool for local authorities trying to ensure the private rented sector is effectively managed. If the Government were to accept a third set of conditions, we believe that such circumstances could include areas that have a large amount of seasonal holiday letting, or student accommodation.
The NUS is also concerned about the possible definition of an HMO. I mentioned in Committee that I used to represent a ward that had a lot of student accommodation. Very little of it was three-storey, but, by golly, they were houses in multiple occupation, and they certainly needed licensing. The local authority would find it difficult to do so if it had to go through this cumbersome process every five years.
We have pulled back a bit. We are now asking for all houses of three storeys to be included in the definition, and we have pulled back on other things. However, concerns on this issue have been expressed by Shelter, which has experience of vulnerable clients who live in this sort of accommodation; from the NUS; and from the Local Government Association, which represents the authorities who will have to carry out the legislation we are discussing. I hope we can hear from the Minister today that, when the regulations are brought out, the points raised by myself and many others will have been listened to. I beg to move.
4.45 p.m.
My Lords, I am grateful to the noble Baroness for reiterating the case she has made so energetically at earlier stages of the Bill, and for saying essentially that these are probing amendments. It is important for us to go over this issue one more time, and I hope the noble Baroness will not mind if I spend a little time doing exactly that. I want to offer her some reassurance, and also ensure that the Government's position is clearly understood.
If we were to accept Amendment No. 43, it would extend the scope of licensing to include all HMOs of three storeys, rather than restricting the mandatory requirement to those occupied by five or more persons, forming at least two households. We had already debated this when the noble Baroness moved Amendment No. 58 in Committee. The Government are aware that the risk of injury or death from fire in a three-storey HMO is higher than that in smaller HMOs, or indeed a house of a similar size in single occupation. We have made that clear from the outset. That is why the starting point for mandatory licences has been pitched at three storeys—which includes basements and attics—in residential use. The amendment fails to recognise that the number of occupants in the house is also a factor in determining the risk of fire occurring. Conversely, the risk is diminished where a building is occupied by only two, three or four people. The Government do not believe in undue regulation, and I said last time that we need to draw a line somewhere. We estimate that between 100,000 and 120,000 HMOs would be subject to the mandatory licensing scheme if we set the scope at those occupied by five or more people. The truth is, however, that we cannot be precise, because the data on this are, as I am sure we can all accept, rather patchy. If we were simply to say that licensing must apply to all HMOs—which is, I think, ultimately where the noble Baroness is coming from—this would have a significant impact on local authority resources. It would involve bringing in thousands of extra properties into the compulsory licensing regime unnecessarily, placing additional unwanted, unwarranted and unhelpful burdens not just on local authorities, but also on landlords. That could lead to landlords leaving the market or even being discouraged from entering it, which would be highly undesirable and not in anyone's interests. That said, local authorities can impose licensing on three-storey houses not within the scope of the mandatory regime if they identify problems with the management of the properties. The noble Baroness referred to her time on Southampton council and her experience with students. I am familiar with exactly those sorts of problems, and I have little doubt that local authorities, when confronted with them, will address them appropriately—and, where required, outside the mandatory regime. Our mind is not closed on the scope of mandatory licence arrangements, but we want to tread cautiously, to ensure that the regime is properly targeted in the first instance. We have undertaken to carry out a review of licensing within three years of it coming into force, and that is probably about the right timescale. If the review proves that we need to change the scope of licensing, then we have the powers to do so through regulation, which is why it is important that this matter should be reserved for secondary legislation. We need to see how the regime works before extending, or indeed reducing, its scope. Amendment No. 44 provides that the requirement as currently drafted in Clause 55(6)(b)—that a local authority must satisfy itself that there are no Part 1 functions to be exercised by it within five years—is reduced to three years. Perhaps there has been some misunderstanding over this provision, and it should be clarified. The provision places a statutory duty on local authorities to ensure they discharge the functions in relation to a licensed HMO as soon as reasonably practicable, and, in every case, within five years. This is a new and significant change in how a local authority must deal with defects in high-risk HMOs within its area. Under the existing law there is no requirement for an authority to do anything about housing conditions—it simply has a general power to act. Under this provision, the authority must act, which those of us in particular who have been involved in housing action must welcome. I certainly would have welcomed this power as a local authority chair of housing, or as a leader of an authority where there were a lot of HMOs. Having said that, we need to be more realistic about how the authority can discharge the function, and within what time limits. For a start, the local authority need not necessarily carry out an inspection at all. The duty can be discharged if the authority is satisfied on the basis of evidence available to it, such as a report from a surveyor or previous inspector, or information supplied by a landlord in connection with the application for a licence. In those circumstances the duty could be discharged within a matter of days or even weeks. However, I accept that many authorities will discharge their duty by means of an inspection. We expect local authorities to prioritise their inspection regimes based on the information available to them, and their knowledge—or perhaps the lack of it—of the property concerned. An authority would want to inspect the highest risk properties first and possibly leave those HMOs that have recently been inspected and given a clean bill of health until the end. The crucial point is that the provision does not allow a local authority to wait up to five years to discharge its functions—it must do so as soon as is practicable. Five years is a maximum, not the norm. It would be perfectly possible to set a time limit of 12 months, as the original Committee amendment sought, or three years, as this amendment suggests. But there are real and practical difficulties. Local authorities with a large number of licensable HMOs would have to divert other resources to discharge the function in a shorter period, perhaps even putting people at risk. This means that they would be unable to deal with real problems relating to health and safety in other rented accommodation. The Government think that five years, therefore, is appropriate as the latest time within which the functions can be discharged, since it relates to the normal period for the licence and ensures that within that time, all licensable HMOs in England and Wales are given a clean bill of health as well as being free from hazards which require enforcement under Part 1. Of course, in an ideal world, all properties would be free of hazards from day one, but we do not live in an ideal world—we have to deal with what is there. If an authority is confident that with existing resources it can inspect all licensable HMOs in 12 months or three years, it will be perfectly free to do so. But for the reasons given, the Government are not persuaded that it is appropriate to require them to comply with a shorter time frame. I hope that the noble Baroness feels able to withdraw her amendments. Amendment No. 76 relates to Clause 78, which provides that a local housing authority may designate all or part of their district as subject to selective licensing where two conditions are met—if it is, or is likely to become, an area of low housing demand or it has a significant and persistent problem with anti-social behaviour, to which the inaction of private landlords is a contributory factor. In either case, the local housing authority must believe that the designation, together with other measures, will help lead to an improvement in the social or economic conditions of the area. Clause 78(7) allows the appropriate national authority to specify other criteria for making a selective licensing scheme to deal with other housing challenges where licensing could bring about positive benefits. Clause 78(8) confirms that additional criteria may be related to more general protection of private rented sector tenants. Amendment No. 76 would add a third set of grounds for a local authority to seek to designate an area for selective licensing. These additional grounds would be problems arising from ineffective management of privately rented properties in the area. Selective licensing is intended to be a targeted measure, and this amendment would effectively subvert that aim. Quite frankly, the amendment is so broad that it would allow local authorities to seek to introduce selective licensing of the whole of the private rented sector in their area, a result that is contrary to what we are trying to achieve with these provisions. That said, it is perhaps worth reiterating that Clause 78(7) allows the appropriate national authority to add to the grounds for selective licensing in the future. Furthermore, we have made a commitment to review the operation of selective licensing within three years of its implementation. So there is a clear timetable in place for examining whether there are additional problems for which selective licensing could prove a useful tool. I hope that those comments satisfy the noble Baroness. I do not think that the measures she suggests are right or proportionate but that they would lead to unwelcome and overbearing burdens on the local authority. For that reason, they could become unworkable and subvert what I think is generally agreed to be an appropriate way of dealing with problems in the houses in multiple occupation sector and measures which the local authorities and the Local Government Association have, in broad terms, signed up to and supported with some enthusiasm.My Lords, I thank the noble Lord for that full reply. It is important to say that all the measures that I have proposed are being asked for by local authorities. Not for the first time, I welcome the fact that there is a timescale for reviewing how this will proceed and that some of the points we have made here and at previous stages of the Bill will be considered.
I think that the proposed threshold for mandatory licensing of only large houses in multiple occupation—those with three or more storeys and five or more occupants—is over-cautious and inadequate, but the Government have put their case. I believe that there will be considerable risk to people in these properties from fire. I certainly hope that if this proves the case even before three years are up, the Government will revisit the issue. I have already suggested periods in which it is reasonable for landlords to take action—three years, five years and one year. I am quite clear that three years is a reasonable time in which to deal with a category one hazard, and I think that local authorities are as well, so I am very disappointed that the Government have not moved on that issue. We are talking about severe hazards. Amendment No. 76 would give local authorities the very discretion that the Government have been saying they have given them in legislation for a number of years. We have welcomed that legislation. This is what is so frustrating for local authorities. With one hand we give them discretion and powers to do things, but when we see the detail of some Bills we decide that we will not give them those powers after all. Given that the Government have been cautious in how wide the scope is for bringing in licensing of houses in multiple occupation, to draw so tightly the other areas to which local authorities can extend is not helpful. However, I welcome the fact that the Government will review this in three years' time. These are important issues. I think that the Government realise that, and all we can hope is that as they draw up the regulations, our words ring in their ears. With that, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[ Amendment No. 44 not moved.]
Clause 56 [ Designation of areas subject to additional licensing]:
moved Amendment No. 45:
Page 38, line 10, after "designation" insert "including publicising its intent both electronically, outside the relevant property or properties and in the local media"
The noble Lord said: My Lords, we discussed this matter at some length in Committee. Amendment No. 45 would place on an authority a duty to make public as wide as possible its decision to extend the licensing scheme to a certain property.
We have just had a debate about local discretion for local authorities. As the Minister knows, I am much in favour of giving local authorities additional powers. In fact, I fight the whole time for the Government to give my own authority more power. However, on this issue it is important that we put in place a specific and understood mechanism by which a local authority should be able to inform local people of its decision. As drafted, the Bill provides that local authorities should take "reasonable steps". We on these Benches do not feel that that is sufficient. What exactly is meant by "reasonable steps"? I beg to move.
My Lords, Clause 56 permits individual local housing authorities to extend licensing beyond the scope of mandatory licensing by designating part or all of its areas subject to additional licensing for specified descriptions of HMOs. Before making a designation, the local authority must consider that a significant proportion of HMOs of that description is giving rise to or is likely to give rise to problems to occupants or members of the public because of poor management of that stock.
As we have said in the past, it is important that regulation is targeted at properties where the worst problems exist. Often these sorts of properties may well be concentrated in a particular area, such as areas with a high number of properties let to students. Such properties often have two storeys and are occupied by four people. They fall outside the type of property that is subject to mandatory licensing.5 p.m.
Amendment No. 45 would require a local housing authority, in addition to consulting those likely to be affected by an additional licensing designation, to publicise the intent of the designation electronically outside the relevant properties and in the local media. We debated this proposal in Committee, for both additional HMO licensing and selective licensing. I appreciate the point that the noble Lord, Lord Hanningfield, has made—indeed, I have some expressed sympathy with it—but I am going to disappoint him by saying that I am unconvinced that amending the provision in the manner suggested would be of benefit.
I shall briefly put the case for the status quo. There is nothing to be gained by prescribing to local authorities the methods that they must use to disseminate information concerning consultations on licensing schemes. I would be rather surprised if a local authority chose not to use any of the three forms of publicity that are specified in the amendment, but I would trust that the authority in question knew its own business well enough and was able to decide how best to contact the relevant parties. After all, Clause 56(3)(a) provides that local housing authorities should take reasonable steps to consult those likely to be affected by the designation. Authorities will know that any failure to take their consultation requirements seriously could provoke a judicial review. Moreover, the appropriate national authority will need to be satisfied that effective consultation has taken place before it will confirm an additional licensing scheme.
The noble Lord, Lord Hanningfield, the noble Baronesses, Lady Hanham, Lady Hamwee, and Lady Maddock, and I have a great deal of local government experience between us. I was thinking of adding it all together and telling everybody how much experience we have, but I have declined from that act of mathematics. Suffice it to say that we have bags of local government experience and we all know how important consultation is. We know that local authorities are very imaginative in consulting with communities in different ways, by which I mean interested communities, at which the clause is aimed.
We should trust them to do exactly that. I am grateful for the amendment that the noble Lord, Lord Hanningfield, has brought forward. We have had some useful discussion about it. I hope that local authorities will exercise their imagination and ensure that those who need to know, know, and that they can understand with some ease and clarity the information that gets to them. The amendment does not necessarily represent the right way to go about achieving that. It is not something that one can so easily prescribe in primary legislation, but the issue remains important.
My Lords, I thank the Minister for his answer. He has obviously accepted our point that consultation and publicity need to be very wide. As I said earlier, a great deal of the consultation is going to be implemented by very, very small district councils, which have neither the resources nor, sometimes, the capacity to do it. Recent surveys of local government have shown that some of them lack the ability to do it. I know of one or two district councils which are unable to cope with their responsibilities at the moment. I accept that the larger authorities have the mechanisms in place, but it would have helped to make clear to those very small authorities the way forward. However, I accept what the Minister has said.
My Lords, I am not sure what the noble Lord means by "very, very small" authorities. I know that he is a county man and that he may consider many districts to be very small, but does he not accept that many small authorities are better at consulting and are closer in touch with their public than some of the very big ones?
My Lords, I said "very small" authorities. I am in the process of helping one or two very small authorities deal with the complexities of modern-day legislation. There are some very good small local authorities, but there are some very small ones which lack capacity and need advice and support in meeting the requirements of some modern legislation. Some advice in the Bill might help them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 46 not moved.]
Clause 61 [ Requirement for HMOs to be licensed]:
moved Amendment No. 47:
Page 40, line 28, at end insert "Chapter 1 of".
On Question, amendment agreed to.
Clause 62 [ Temporary exemption from licensing requirement]:
moved Amendment No. 48:
Page 41, line 18, at end insert—
"(2A) An owner of a property in the process of selling that property shall be entitled to a temporary exemption up to a maximum of three months, and the subsequent owner shall be entitled to a similar temporary exemption period in which to make the necessary preparations to obtain a license, if a license is required under the terms of the Act."
The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendment No. 69. An amendment that was similar to Amendment No. 48 was discussed in Committee. I am pleased to inform the Minister that we have returned with a slightly revised version and I know that he will be hard pressed not to accept it today.
On that note of optimism, perhaps I may take a moment to explain our important yet subtle change. We can all agree that the licensing requirement could unfairly penalise people who are in the process of selling their property and who, for one reason or another, have failed to obtain the necessary licence. The Minister said in Committee that although he had some sympathy with individuals in such circumstances, he was loath to accept our initial amendment as it opened a possible loophole; that is, an individual who claimed continuously and fraudulently to be in the process of selling the house in order to avoid the necessity of obtaining a licence. That loophole has now been closed. Amendment No. 48 would place a time-frame of three months on the process. I am aware that selling a house may take considerably longer than that and I recognise the weakness of specifying an amount of time. Such an arbitrary figure is never going to deal with all circumstances, but it represents a genuine, if imperfect, attempt to address the issue in question.
Amendment No. 69 would allow people who are in the process of selling a property to use that as a defence for not having a licence. Some people who are buying a property and who are not fully familiar with their licensing obligations may well be caught out. A suitable and reasonable period of time should be allowed for them to be made aware of the requirements placed on them. If the Minister cannot give us a positive answer today—although I hope that he can—perhaps he will consider asking his officials to have another look the matter before Third Reading. I beg to move.
My Lords, in some ways, we are divided by a point of principle. A similar amendment was proposed in Committee. This amendment proposes a time limit of three months. That is an improvement on the amendment proposed in Committee. I understand the concerns of the noble Lord, Lord Hanningfield, but we cannot support him.
Buying and selling property is not like buying a can of beans from a supermarket. If a landlord is taking steps to ensure that a house in multiple occupation ceases to be licensable under Part 2, he can apply for a temporary exemption under Clause 62, whether or not tenants are still in the house. The local authority will grant an exemption if it is satisfied that the property is genuinely no longer going to need a licence; for example, if it is going to be sold with vacant possession. However, it is not appropriate that persons should be able to evade licensing provisions because they are in the process of selling a property with sitting tenants. If no steps are being taken to ensure that the property should cease to be licensable, and selling a property is not such a step, it must remain subject to the licensing regime. Why should the tenants, who otherwise receive licensing protection, not receive it simply because the landlord has decided to sell the property? As to the position of a person buying a house in multiple occupation, we are not convinced that the three-month exemption period is necessary or desirable before he is required even to apply for a licence. If someone is buying a house in multiple occupation with sitting tenants, the buyer, as part of the buying process, should be sorting out what needs to be done; that is, the licensing arrangements. That is part of the process that any reasonable person would have to go through. It should not come as a shock to the buyer to find out on the day that he owns the property that he now owns a house in multiple occupation that requires a licence. If it gets to that stage, it is a pretty sorry state of affairs. If he is buying a property with vacant possession, he is not in a different position from that of any other owner of a large empty property. If he intends to let it out as a house in multiple occupation, he should apply for the licence before admitting occupiers into the house. There is a straightforward case here. I appreciate that the period has come down to three months but if it were three weeks, I would probably take exactly the same view. It is not acceptable. Amendment No. 69 would provide that an absolute defence to any offence of being in control of or managing a house in multiple occupation would be that the owner was in the process of selling the property. In response to Amendment No. 48, I said that the Government cannot support the notion that an owner ought to have an automatic exemption from licensing simply because he is selling his property. It therefore follows that the Government cannot support Amendment No. 69 either. In effect, it would remove criminal liability for operating or managing a house in multiple occupation in those circumstances. I regret to say that this is the first time this afternoon that a point of principle lies between us. From a practical point of view, I think that it would not be right to have this type of provision in the Bill. In terms of the protecting of tenants, people who are buying and selling houses in multiple occupation ought to be aware of what they are doing.My Lords, I note what the Minister has said. We certainly did not want to create any loopholes or give any opportunity for fraudulent use of this amendment. The Minister will know that I often put forward amendments setting out the concerns of the industry, which people have put forward and about which they have lobbied us, about the buying and selling of properties. As we have already discussed, at one point 4 million properties were bought and sold in this country every year. Many of those involved this type of property. Therefore, one does not want to put too many handicaps in the way of buying and selling properties. That is why these amendments have been put forward. I have heard what the Minister has said today and, if people think that it is appropriate, I may come back for a further look at this issue at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 49:
Page 41, line 43, insert at end—
"(e) the need to make an application for a licence under this part unless an appeal is made or in the event of an appeal being refused and that otherwise he could be guilty of an offence."
The noble Lord said: My Lords, if a local authority decides not to serve a temporary exemption notice, then, in the absence of an appeal, if the property continues to be occupied as an HMO, at the end of the period allowed for the appeal the landlord will immediately be guilty of a criminal offence. Therefore, the landlord needs to be warned of the necessity of making an application for an HMO licence before the period expires unless an appeal is to be made. Similarly, in the event of an appeal being refused again, the landlord needs to be aware of the need to apply for a licence.
Once an application is made, the landlord will be protected while the application is being processed but, in the absence of such an application, the landlord is laying himself open to a fine of up to £20,000 and possibly other sanctions as well. The landlord should be told of this and the amendment would ensure that this was done. I beg to move.
My Lords, I shall be brief. In effect, we do not think that what is proposed is unreasonable but we do not think that the detailed signposting should appear on the face of the Bill. It could be included in the prescribed information accompanying applications for temporary exemption notices. That would be a way round that. We do not think that what is proposed is unreasonable but the Bill is not the place to do it.
My Lords, I thank the Minister, who has agreed with us. We will find ways of making it certain. It is very important that this information is made available and that people are aware of what their liabilities might be. I thank the Minister for that reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 63 [ Applications for licences]:
moved Amendment No. 50:
Page 42, line 27, leave out "maximum"
The noble Baroness said: My Lords, the appropriate national authority under the Bill will prescribe the maximum fee payable for a licence. We are concerned that this will cause confusion. We believe that the Government or the National Assembly for Wales should set out in guidance what local authorities should charge so that we do not have people paying substantially different fees in different districts. In Committee, the Minister said that he was discussing the costs of running the licensing scheme with the Local Government Association. I wonder whether he is able to give us any indication of how those discussions have progressed and whether he can tell the House the estimate that he has put on the costs of each individual licence.
I do not think that the amount of work is going to differ very much in different areas. Therefore, the cost should not vary very much in different areas. The Minister also commented that, were these two amendments to be accepted, it would mean that a national fee would have to be assessed at the upper end of what would be considered to be viable. But we do not believe that that is the situation either, bearing in mind that the costs in each local authority are going to be approximately the same. We believe that there should be some sort of national understanding and that that would be welcomed by local authorities and by the licensees who will have to apply for the licences. We believe that this would ensure stability and understanding of the costs of licensing throughout the country. I beg to move.
5.15 p.m.
My Lords, at this point I cannot give the noble Baroness any idea of the fees but I shall explain in a positive way why I cannot do that. As she said, Amendment No. 50 would enable the appropriate national authority to specify the actual fee to be charged or the way that those fees are calculated instead of simply being able to specify a maximum fee. We do not think that the change would be that great in practice. But I understand that the noble Baroness is looking for a balance between local discretion on fees and some assurance that the fees will be set fairly and will reflect the true costs of licensing, provided that it is carried out efficiently. We do not dissent from that. We want the fees to be seen to be fair to landlords and to local council tax payers.
We have taken the view that the Bill gives us the ability to achieve that. We have had discussions with the Local Government Association and others about how best to specify the appropriate level and how to calculate it. At the moment, it would be fair to say that no simple solution has emerged. However, we are shortly to consult on this formally and will make no decision until we have heard what all the key stakeholders think is practical and reasonable. There will be a consultation on this issue. Specifying a maximum fee level nationally is simple in concept but difficult in practice, if we want to reflect variations in costs and local circumstances. The consultation will give us information about whether or not there is wide variation. The noble Baroness has taken the point that in some ways there probably will not be such a wide variation. We are uncomfortable with the possibility of all the authorities turning the maximum into the norm, irrespective of variations. Specifying a method of calculating a maximum fee level may be more promising in that it allows fees to reflect the factors that vary between areas and authorities, such as the number of houses in multiple occupation, the number of houses in poor condition, or the number of landlords that are already known to the authority through membership of an accreditation scheme, for example. Some of the issues will make it easier for one authority as opposed to another so we need to provide greater clarity regarding the position on fees and the way they should be determined. There is no doubt that that is required. We hope that the consultation will produce that. Amendment No. 79 more or less enables the appropriate national authority to specify the actual fees to be charged. In the light of the fact that we have gone over this ground, I ask the noble Baroness not to press her amendment. There will be consultation and we will ensure that when it begins the noble Baroness and other parties in the House are fully informed of what is happening at the time so that they can put their five penn'orth in. Obviously, we want the views of the stakeholders. It may turn out that there is not a massive variation and therefore we would not want an excessively complicated system. It is quite clear from our early discussions with the LGA that we do not have a simple formula at the moment. I think that the best thing to do is to consult the industry.My Lords, the Minister's reply was about as woolly as I expected, under the circumstances. The problem about setting the maximum fee is laid out in his reply. We do not actually know what the situation is. If we have to consult now, when the legislation is printed as it is, it may well be that the answer is not that there should be the maximum fee, but that it should be laid down in guidance, which is precisely what my amendment suggests. I am surprised that the Minister has not said, "Well, that is fine, because with this consultation we accept that there is going to be a difficulty".
I hear what the Minister says. I am not sure when the consultation will take place, but clearly it is without the timescale of the Bill. I probably need to see whether we could come back with a better amendment which would be acceptable to the Government, in the light of what the Minister has said. I do not believe that we are terribly far apart on this matter, but we are in danger of perhaps leaving some considerable confusion in the minds of local authorities as to what they can charge—although presumably, after consultation, guidance would be issued. I thank the Minister for his reply and I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
moved Amendments Nos. 51 and 52:
Page 42, line 35, after "under" insert "Chapter 1 of".
Page 42, line 37, leave out "Part" and insert "Chapter".
On Question, amendments agreed to.
Clause 64 [ Grant or refusal of licence]:
moved Amendment No. 53:
Page 42, line 40, leave out "may" and insert "shall"
The noble Baroness said: My Lords, we return to the question of provisional licensing. As the Bill is drafted, it requires local authorities to grant or refuse licences for houses in multiple occupation. When applications for houses in multiple occupation licences are made, local authorities will have five years to satisfy themselves that there are no Part l functions that ought to be exercised, although licence applications should be dealt with within six weeks. As a result, there appears to be a presumption that local authorities will grant licences without an inspection of the property, as they will identify health and safety hazards as the landlord's responsibility, which can be dealt with under Part 1 during the licensing period. Local authorities cannot, we believe, be satisfied that a house meets prescribed standards without inspection.
We have had quite a lot of discussion on what resources will be required to deal with all the inspections. The demands on resources will be substantial if local authorities must try to inspect every licensable house in multiple occupation before granting a licence. It is likely, therefore, that the system will grind to a halt and fall into disrepute as a result. It would not therefore achieve the goal of securing the protection of those living in the so-called higher risk properties.
The prime responsibility for ensuring that the health and safety of occupants of such properties is not put at risk as a result of housing conditions, either physical or as a result of management failures, lies with the owner or licence holder. Therefore, within the licensing system, there should be a provision that does not rely wholly on policing and inspection by local authorities or on inadequate information provided in licence applications.
A system of provisional licences could meet those concerns. They could be issued when the landlord supplies evidence not only that there are in place satisfactory management arrangements but that in all respects a house is reasonably safe, including no unacceptable hazards under Part 1. We believe that the provisional licensing arrangements would be better than leaving a situation in which some houses have no licence arrangements at all for very considerable lengths of time before they are inspected. For that reason, we strongly believe that provisional licences should be introduced on that basis. I beg to move.
My Lords, Amendment No. 53 is intended to ensure that a local authority, on receiving the application for a licence, is under a positive obligation either to grant or refuse the licence. Our view is that in practice the replacement of "may" with "shall" will have no appreciable difference in the exercise of the authority's duty, although that would not normally be the case in a Bill in which one is dealing with "may" and "shall".
If a local authority is satisfied that the requirements of Clauses 63, 64 and 65 have been met, it would be required to exercise its discretion in favour of the applicant and grant a licence. If it was not satisfied of those matters, it would have to refuse the licence. There is no other course of action for a local authority beyond receiving an application for a licence. Nor is it open to a local authority not to act by failing to determine the application. The only reasonable course of action for a local authority would be to exercise one of the prescribed options. Clause 55(5) imposes a positive duty on local authorities,We acknowledge the amendment, but it would not make any difference in reality whether the wording was "may" or "shall". If I accepted it, it would result in a discrepancy between the provisions of Part 2 and the comparable provisions of Part 3. It would be unhelpful for a different formulation to be adopted in Clauses 64 and 86, when the same considerations apply. I shall give the game away in the sense that we are happy to have another look at the matter to see whether the suggested wording would make the legislation clear. As I have said, there is no appreciable difference in using one word or the other. So why not change it? On the other hand, one might argue, why not leave it? If we did change it, however, we would have to change it in more than one place in the Bill. I shall take the matter away and consider whether we should stick with what we have or whether we can make the Bill even clearer. But that would mean amending the other clauses so that we have consistency in the Bill. The noble Baroness did not really go into detail on the other amendments, but I am happy to do so. Amendment No. 55 would provide that a local housing authority may, subject to conditions, grant a provisional licence in circumstances where the local housing authority has not inspected the house and there is no possibility of an inspection being carried out before the granting of a licence. The amendment is intended to ensure that a local authority need not grant a full licence for a house in multiple occupation when there is the possibility that it does not comply with health and safety conditions in Part 1. With due respect, however, the amendment confuses Parts 1 and 2 of the Bill. The mandatory licensing provisions in the Bill are intended to improve management and amenity standards in houses of multiple occupation; they are not intended to be a certification of compliance with Part 1. The licensing process does, however, facilitate better targeting of inspections by ensuring that local authorities have key pieces of information that allow them to target the highest risk houses in multiple occupation under the new housing health and safety rating system. The licensing system requires local authorities to consider health and safety implications in high risk properties as soon as practicable and within a maximum period of five years. Local authorities know the properties in their areas and can decide how best to carry out the duty at the earliest opportunity within that five years. The licence application process provides local authorities with the tools to gather sufficient information to allow them to assess and prioritise the risks within a licensable house in multiple occupation. The amendment is well intentioned, but it does not achieve anything that is not already possible under the Bill. It is already open to a local authority to categorise a licence as provisional, if it feels that that is appropriate. The provisions of the Bill are sufficiently flexible to enable that, and the local authority as appropriate may decide the duration of the licence. The amendment would add another level of complexity in the form of a new set of provisions in regulations. In that sense, what is sought can already be achieved under the Bill. I hope that after what I said on the earlier amendment, the noble Baroness will not pursue the matter."to ensure that all applications for licences and other issues falling to be determined by them … are determined within a reasonable time".
My Lords, I thank the Minister for his reply. I am sorry that I slightly confused him by not saying how many amendments I was speaking to. I am also grateful, but slightly puzzled, by his assurance about the provisional licences, because I have not seen anything that gives the local authority that power, but if the assurance is that it can issue a provisional licence if necessary, that seems to meet our point. So, with that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 54 and 55 not moved.]
5.30 p.m.
Clause 66 [ Tests for fitness etc. and satisfactory management arrangements]:
moved Amendment No. 56:
Page 44, line 40, leave out "and funding arrangements"
The noble Baroness said: My Lords, before local authorities can grant an HMO licence, the housing authority has to be satisfied regarding the management arrangements for the property. One of the specific requirements is to take into account the landlord's funding arrangements. Presumably, that concerns the landlord's ability financially to support any work that has to be done, mortgaging and all the other financial aspects of owning a property. As we stressed in Committee, we do not believe that that is a proper thing for the local authority to be doing. The amendment would remove the specific requirement to consider the funding arrangements in each and every case.
They may be cases where a local authority has justifiable concerns about the financial arrangements of a licence holder and whether he will be able to meet his obligations, but these are likely to be relatively few. The Government do not appear to have appreciated the burden that will be placed on local authorities, as well as landlords and managers, of having to investigate the funding arrangements of a property owner.
Local authorities have limited experience of interpreting private sector accounts and probably none in relation to landlords who are small businessmen and women. Their experience is limited to one-off contracts, such as for building works. By and large, they are not accountants taking into account people's financial position. Such a provision will also work to the detriment of new entrants, because such landlords will have no financial track record.
The financial assessment for a landlord should be left to the financial institution funding the borrowing on a property. If that institution is not convinced of the landlord's financial position, no money will be forthcoming. I beg to move.
My Lords, I continue to be rather puzzled, because the noble Baroness has bags of experience in local government, as has the noble Lord, Lord Hanningfield, but I find the way that they describe the expertise within local authorities to be very strange. In my recollection of my local authority, even when we were a district-level authority with district-level powers, we could understand funding arrangements and financial matters in the private sector. Indeed, the local authority worked with the private sector in many instances and had to undertake difficult financial decisions based on advice provided from within the local authority.
So I cannot accept that the local authority sector does not have the expertise with which the noble Baroness charges it with lacking. Indeed, I should be very worried if it did not have that expertise available, because it would be unable to undertake the daily judgment that it has to in a whole range of service activities. It is important that it has that capacity and that it can call up that information, because standards will deteriorate if a manager does not have the money to carry out his obligations. That is why it is essential that local authorities must be satisfied that adequate funding arrangements are in place, or available, before they grant a licence. The suggestion that they do not have such expertise is untenable. Big and complex projects are before local authorities all the time. It is also incorrect to suggest that environmental health officers will be administering licensing schemes on their own. They will of course have a central, critical role, but other functions relating to the licensing process will be dealt with by other staff: maybe administrators, managers, people with some form of building control expertise—who knows what they will have to bring up to ensure that the licensing process works? I do not see why they cannot relate carefully and clearly to those staff at the local authority with accountancy and fiscal investigative skills, because those staff certainly exist. No doubt the authority will give the functions to those people within its staff who have the ability to understand and analyse financial matters. So the amendment is misconceived. If the noble Baroness is trying to create a case for a new local authority burden, she is somewhat wide of the mark. Perhaps she ought to go back to her local authority to ask it whether it feels that it could carry out this sort of work. I should be very surprised if it were to say, "Oh no, we cannot. We do not have that knowledge or expertise within the authority", because I believe that it does.My Lords, I hear the Minister's reply and I thank him for it. I think that the essence of this is that there will be a large additional burden placed on local authorities, because I do not believe that all environmental health officers, who will be carrying out licensing, will have the expertise to deal with examination of accounts, of mortgage arrangements and of other funding arrangements for the ownership of property. Of course they can call on the local authority's finance department, which will understand them, but why should it have to scrutinise every licensee for his funding ability? The provision is an unnecessary addition, but, for today's purposes, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 57:
After Clause 66, insert the following new clause—
"Fitness Certificates
(1) A person who proposes to apply for a licence in respect of an HMO within the area of a local housing authority or who proposes to become the manager of one or more houses within the area of a local housing authority may apply to that authority for a certificate that he is a fit and proper person for the purposes of section 65.
(2) The provisions of sections 62(2) to (7) and 65(1) to (3) shall apply in the case of an application for a certificate under this section.
(3) Local housing authorities shall grant a certificate if they are satisfied that the applicant is a fit and proper person for the purposes of section 63(3)(b)(i) and (d) and, in determining any subsequent application by the holder of the certificate in relation to an HMO licence, the holder of the certificate shall be treated as having satisfied the authority in relation to those matters unless proceedings are pending for the revocation of the certificate.
(4) Any certificate shall remain in force for the period of 5 years from the date of its grant unless revoked in the meantime but without prejudice to the right of the holder of the certificate to apply for a further certificate on the expiration of an earlier certificate.
(5) For the purposes of this section the following provisions of this Act shall apply—
(6) The provisions of Part 3 in Schedule 5 (appeals against licence decisions) shall also apply to decisions in respect of a refusal to grant a certificate or the revocation of a certificate (except that any reference to "a relevant person shall" be omitted for these purposes)."
The noble Baroness said: My Lords, this amendment comes back to the idea of fitness certificates. We spent some time on this in Committee, so I shall not detain the House for terribly long, except to say that, under the Bill, houses in multiple occupation and selected licences will be issued on an individual, house-by-house basis.
The purpose of the new clause is to improve and simplify the system. It would enable a prospective licence holder or manager of more than one property in a local authority area to apply to the authority for an individual certificate of fitness for the purposes of licensing. The authority would then need to investigate that person only once. That returns us to a previous provision, which means that every time someone put forward an application, he would have to have his funding arrangements re-examined. If found to be a fit and proper person, a certificate would be issued to that person under our amendment.
We have made considerable concessions since Committee. Under this new version of the new clause, a certificate of fitness once granted would last for five years, not 10, as previously suggested, unless it was revoked for good reason in the mean time. There would be a right of appeal against the refusal of a certificate. Once the five-year period was up, the person concerned could reapply and be reconsidered.
That is important in some areas where one landlord owns a large number of properties. If that person has to be scrutinised each time he applies for a licence, that is administrative bureaucracy gone mad. The amendment would ensure that that was unnecessary. I beg to move.
My Lords, I support the purpose of the amendment, which we discussed in Committee. I, too, was concerned that we should not make extra work for local authorities. In response to amendments that I have moved this afternoon, the Government have been keen not to make extra work for authorities. Casting my mind back to Committee, I think that we had at least some reassurance from the Government that there would be some allowance for local authorities, once they had agreed that someone was a fit and proper person, not to have to go through the whole process again. I think I remember that right, but perhaps that can be reiterated today, because I understand what the noble Baroness is saying and have great sympathy for it, as I have said previously.
My Lords, we debated this amendment in Committee and I dealt with it at that stage. In fairness, I ought to point out that the amendment does not take account of the revision of clause numbers since the time it was debated in Committee. But I will not dwell on that point. I think I also said at the time that I saw some merit in the noble Baroness's argument, but the amendment does not eliminate the need for separate licence applications on different properties.
In many cases a landlord may own a single property which is subject to licensing, and in those cases it is appropriate that his fitness should be determined as part of the consideration of the application. However, there will be cases where a landlord owns multiple properties. It would be absurd if local authorities were required to carry out separate fitness inquiries in relation to every application in those sets of circumstances. It is our intention—and I think this gets to the point raised by the noble Baroness, Lady Maddock—that the application forms for licensing will address that scenario by asking whether the applicant already holds a licence for other property in the area, or whether such an application is outstanding. In that way, the landlord will not be required to reprovide and re-present information that they have already provided to the authority. In effect that means that an initial application approval would act as a fitness certificate. That does not mean that the local authority cannot make further inquiries, or is bound to grant further licences, as one would expect, because circumstances may change and it may be right in the case of later applications to refuse the licence on the basis of experience. So I think that the bureaucratic nightmare conjured up by the noble Baroness is not quite such a horrific scenario as she envisaged when she embarked upon this worthy amendment. In the circumstances, I hope that she will feel able to withdraw it.My Lords, she would not have embarked upon it if it had been clear at the outset that that is what the situation would be. Half the reason for putting forward amendments is to pluck out from the Government what they have in mind. If it is right that the application form will make it clear that if one has more properties one makes that clear on the application, and therefore there will be only one examination—I fully accept that there may be occasions when it is necessary to do more than that—then I am content. But that information would not be available if we had not moved this amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 67 [ Licence conditions]:
moved Amendment No. 58:
Page 45, line 10, leave out "such steps as are reasonably practicable" and insert "reasonable and practicable steps"
The noble Lord said: My Lords, Amendment No. 58 is grouped with other amendments, two of which are non-government amendments. I will deal with the amendments in turn.
Clause 67 provides that the local authority may include conditions in Part 2 licences in addition to those mandatory conditions that must be included in every licence and which are laid out in Schedule 4. Subsection (2) sets out the conditions that a local authority may decide to include in a licence if appropriate in the circumstances. The list is not intended to be exhaustive.
Government Amendment No. 58 would alter Clause 67(2)(b), which has a licence condition relating to,
"taking of such steps as are reasonably practicable to prevent or reduce anti-social behaviour by persons occupying or visiting the house".
The amendment replaces the words "reasonably practicable" with "reasonable and practicable". It is timely that the noble Baroness, Lady Hamwee, has arrived in the Chamber because this change was prompted by a debate in Committee on a point raised by the noble Baroness. I think her query was whether the words "reasonably practicable" in subsection (2)(b) necessarily implied that conditions had to be reasonable as well as practicable. She suggested that there might be steps which, although entirely practicable, would nevertheless be unreasonable for the landlord to take.
5.45 p.m.
We do not wish there to be any possibility that landlords or managing agents are required to take unjustifiable steps regarding the behaviour of their tenants. Nor do we want there to be any danger that misinterpretation of this provision leads to landlords being able to validate harassment of their tenants. Therefore, this amendment will clarify the situation that licence holders, subject to a condition of this type, can be expected or required only to take steps that are both reasonable and practicable when endeavouring to prevent or reduce anti-social behaviour. So, the noble Baroness has scored.
Amendment No. 61 is a non-government amendment. It would enable a local housing authority to serve a "breach of condition notice" on a licence holder who fails to comply with any of the licence conditions. The notice would require the licence holder to comply with the conditions specified in the notice within a period of not less than 28 days from the date the notice was served, but the period could be extended by the authority.
As I understand it, this amendment is aimed at ensuring that a person does not find himself or herself in an inadvertent breach of a licence condition and at risk of prosecution. It inserts a procedural step to give landlords a last chance before they face having to go to court.
It will be recalled that Clause 70 has now been amended and provides that a licence may be revoked only where there are serious or repeated breaches of licence conditions. It is hard to conceive of any situation where a prosecuting authority would consider it in the public interest to bring a prosecution for a single trivial breach of a licence condition when it could not even revoke the licence for that breach.
As has been said before in your Lordships' House, most authorities are now signed up to the enforcement concordat. I think all local authorities ought to be signed up to that, but that is another matter. That makes it quite clear that prosecution is not appropriate in the case of any and all breaches of statutory obligations.
I share noble Lords' general objectives of ensuring that prosecutions are not brought inappropriately. I hope that our words on the record today make it quite clear that local authorities are not free to bring pointless prosecutions for trivial offences. As a responsible enforcement authority, the job for a local authority policing the licensing regime will be to give advice where this will help, to give a warning where a landlord is getting close to the mark and to take serious action—such as a prosecution or a revocation of a licence—only where such action is justified.
The unfortunate effect of the proposed amendment is that it would inhibit prosecutions where there had been deliberate and serious breaches of licence conditions. Some conditions are just not capable of being remedied within 28 days of service of a notice. Some breaches might be so serious as to warrant immediate prosecution. I know that the amendment has not yet been spoken to but I hope that the noble Lords who tabled that amendment will not press it having heard what I have said.
Amendment No. 62 is a government amendment. It follows on from the contents of Schedule 4. which impose an obligation on local housing authorities to impose particular conditions on all Part 2 and 3 licences. This includes a requirement to keep smoke alarms in working order and supply a declaration as to the condition and positioning of alarms to the local housing authority on demand. The government amendment is a minor amendment which would clarify that this includes a requirement on landlords to install smoke alarms if smoke alarms are not already in place. The amendment removes some ambiguity from the draft. Most landlords are responsible and provide alarms in their properties. We are simply trying to plug a gap that may inadvertently exist.
Amendment No. 66 provides that a person having control of or managing an HMO—whom for convenience I shall refer to as the landlord—can be guilty of committing an offence under Clause 72(2) only if he or she knowingly permits another person to occupy the property so as to cause the house to be occupied by more persons than are permitted on the licence. An amendment was tabled to that effect in Committee by the noble Lords opposite. We agreed to take the matter away and give it further thought. We have done exactly that.
I note that the noble Baroness and the noble Lord have retabled their amendment. I should like to reassure them that government Amendment No. 66 serves the same purpose as non-government Amendment No. 67. Although the words are slightly different, we prefer our version. I therefore hope that noble Lords opposite will feel able not to press their amendment.
Non-government Amendment No. 70 seeks to reduce the penalty for the offence of managing an unlicensed property, or allowing a property to be overcrowded, to a fine not exceeding level 5 on the standard scale instead of the £20,000 fine currently provided for in Clause 72(6). We believe that running an HMO without a licence when one is required should be made a serious offence and we think that that should be reflected in the level of fine payable on conviction.
In the same vein, we believe that operating an HMO with a licence but allowing such property to be occupied by more people than the licence allows, although a breach of the conditions of the licence, breaches a fundamental term of the licence and should not be classed as a breach of other licence conditions. We therefore think it appropriate to classify this breach as running an HMO without a licence and to set the penalty of fine at the same level, at £20,000.
This amendment has been extensively debated. I can only reiterate that our intention in setting the exceptional level of maximum fine for these offences is simply to underline the seriousness with which the Government are treating the new compulsory licensing regimes and to set them apart from other housing offences which are pitched at a fine at level 5. The Government believe that the penalty for these offences should be sufficiently substantial to act as a strong deterrent to landlords who might otherwise seek to operate without a licence or may be tempted to allow a licensed property to be occupied by more people than the licence allows.
There are landlords out there—thankfully very few, and the ones who exist are notorious—who might see some merit in breaching these arrangements. I do not think that we should act in a way that offers them any encouragement at all.
I turn, finally, to government Amendment No. 83. Clause 88 provides that a local authority may include conditions in Part 3 licences in addition to those mandatory conditions that must be included in every licence and are laid out in Schedule 4. Subsection (2) sets out the sorts of conditions that a local authority may decide to include in a licence if appropriate in the circumstances. It is not intended to be an exhaustive list.
Our amendment would alter Clause 88(2)(b), which is the suggested licence condition relating to taking such steps as are reasonably practicable to prevent or reduce anti-social behaviour by persons occupying or visiting the house. The amendment replaces the words "reasonably practicable" with "reasonable and practicable", in line with the earlier amendment.
I hope that noble Lords will agree that we have responded to some of the concerns raised in Committee. We have tried to replace words that needed to be put on the face of the Bill with ones that work better. I would certainly resist amendments that weaken our approach to landlords who, unfortunately, step out of line and commit serious breaches of their conditions. I beg to move.
My Lords, I thank the Minister for many of those comments, many of which related to some of our amendments. It was difficult to follow how his lengthy remarks related to amendments that we will debate later today. Therefore, it still seems necessary for us to move our amendments, after which the Minister can say that the point has already been covered. The Government have, for example, tabled an amendment that is almost identical to our Amendment No. 67. I think that we will have to reiterate the point when we reach those amendments to avoid any confusion. Nevertheless, the Minister's remarks were very helpful.
My Lords, I thank the Minister and the Government, although I am sure they realise that they are tempting me to go on being picky about legislation. I do not promise not to be. I am grateful to them for taking up the point.
On Question, amendment agreed to.
moved Amendment No. 59:
Page 45, line 36, at end insert "but (except in the case of prescribed standards under section 65(3)) the authority shall not do so unless it has first carried out an inspection of the house under section 4 and has determined that a category 1 or category 2 hazard exists"
The noble Lord said: My Lords, in Committee the Minister indicated that the reference to other facilities in Clause 65(4)(b) included such things as fire alarms. Currently, Clause 67(4)(b) makes it clear that the authority can impose licence conditions relating to installations even if the same result can be achieved as a result of an HHSRS assessment under Part 1 of the Bill.
There could consequently be a mismatch, in that if the authority acted under Part 1, then it must carry out a proper hazard assessment and decide on the most appropriate course of action. As the Bill stands, that is not required if the local authority goes down the licence route. There should be a proper HHSRS assessment in the same way as the licence conditions operate under Part 1. Without that requirement an unnecessary facility may be required. A proper assessment under the HHSRS system would show whether that was necessary in the first place. Otherwise, landlords could face considerable costs for meeting licence conditions in respect of something that is not really necessary in the first place. I beg to move.
My Lords, as a general rule, an authority is required to address health and safety issues through Part 1 functions and not by means of the licence conditions. However, Clause 67(4)(b) provides that it may impose conditions relating to the installation or maintenance of facilities or equipment as part of that licence. Amendment No. 59 would require that licence conditions made under the clause relating to the installation or maintenance of facilities can exceed national minimum standards prescribed under Clause 65(3) only if a housing health and safety rating system assessment has been carried out on the property in question and a category 1 or 2 hazard has been discovered.
We think that the amendment proceeds on a false basis. Part 1 functions must be dealt with under Part 1. Therefore, if a category 1 or 2 hazard is discovered in a property, there will be no need for a licence condition to address the hazard because it will be dealt with via the rating system regime. So, contrary to what the amendment envisages—that licence conditions need to he restricted by combating category 1 and 2 hazards—the conditions are already more restricted than the amendment proposes. I understand that the amendment derives from a fear that landlords will be required by licence conditions to install unnecessary equipment. We think that that fear is unfounded. Clause 67 makes it clear that authorities must be reasonable when setting licence conditions by including the wording,Moreover, landlords may, of course, appeal to a residential property tribunal if they believe that any licence condition is unfair. Earlier this week and following our discussions in Committee, I wrote to the noble Lord and other Peers concerning fire safety standards. As my letter made clear, we will not be using these provisions to prescribe inappropriately sophisticated fire safety equipment. Rather, we will be using the prescribed standards to ensure that all licensed houses in multiple occupation comply with basic fire safety standards. Moreover, there is the broader point that the provisions of Clause 67(4)(b) are not intended to refer only to health and safety-related facilities and equipment. They are about guaranteeing basic standards of accommodation for some of the most vulnerable tenants. I hope that that is a satisfactory explanation. It is not meant to be a bucket of cold water. However, issues relating to Part 1 can and must be dealt with using the powers under Part 1."so far as appropriate in the circumstances".
My Lords, I thank the Minister for his detailed reply. Unfortunately, during some of it I was occupied in talking about the previous amendment. I heard the gist of it and I will examine it in Hansard in some detail to see whether we need to return to the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
moved Amendment No. 60:
Page 45, line 46, at end insert—
"(7) A licence may not include conditions imposing restrictions or obligations imposed under the management regulations or which are contained in a code of practice approved for the purposes of section 216."
The noble Lord said: My Lords, HMOs will be subject to control or regulation under the HHSRS standard, licence conditions, management regulations and the approved code of practice. Owners of HMOs are in the main small business people faced with a tremendous amount of regulation. It is a great burden to them. Experience shows with planning permissions how licensed conditions can grow and multiply.
The amendment's purpose is to cut down the risk of such duplication. If matters are dealt with in the management regulations or subject to the code of practice, there is no leave for them to be repeated as licence conditions. There is also the risk that, with the code of practice, matters that are really recommendations of good practice are given legal force by the imposition of licence conditions. I beg to move.
My Lords, I regret that my reply is longer than the noble Lord's speech in moving the amendment. As he said, Amendment No 60 would require that licence conditions do not duplicate restrictions or obligations already covered by the management regulations provided for under Clause 217 or the approved code of practice as provided for under Clause 216.
We have some sympathy with part of the amendment. The Bill's provisions would appear to allow the possibility of a landlord who breached a management regulation and a licence condition that replicated it being subject to double jeopardy; that is, prosecuted twice for the same offence. We do not want that situation to arise. I am pleased to say that it will not. If a local authority were foolish enough to pursue such a course, the attempted second prosecution would be thrown out as an abuse of process, regardless of whether the first prosecution was successful. It will pay the necessary cost, because it should not be a burden on the landlord. We do not wish authorities to generate superfluous regulation. We have already noted that Clause 67 makes it clear that local authorities must be reasonable when setting the licence conditions. I have mentioned that landlords will have the right of appeal against any licence condition they consider unduly burdensome or inappropriate. We would expect local authorities to be aware that if, for example, they sought without good reason to impose a licence condition that closely duplicated the effect of a management regulation, such a condition would be deemed unreasonable and could successfully be appealed. With regard to licence conditions duplicating elements of an approved code of practice, we appreciate that there is some circumspection about what is best practice becoming legally enforceable through replication as a licence condition. None the less, if a local authority has good reasons for including such a condition in a licence, we would not wish to prevent it from doing so. As I said, landlords can always appeal against conditions they believe to be unfair or unnecessary. It would be perverse if something considered to be such a prime example of good management that it was included in the code of good management practice were banned from being a licence condition. The management code has not yet been finalised. We hope that when it is finalised it will recommend that good landlords will ensure that smoke alarms are installed and regularly checked. We are certain that it is appropriate also to have a condition in every licence issued that the licensee will ensure that smoke alarms are installed and maintained. That is a requirement contained in Schedule 4. It would make more difficult the task of driving up management standards in houses in multiple occupation if the amendment were pressed. I hope that it will not be and that my reply is satisfactory to the noble Lord.My Lords, I thank the Minister. Again, we will analyse his answer. I was trying to make the point that I have made before: many HMOs are owned by small businesses and one does not want duplication or too much onerous bureaucracy in the processes. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 61:
After Clause 67, insert the following new clause—
"Hmo Licences—Breach Of Conditions
(1) A local housing authority may, if any of the conditions of the licence is not complied with, serve a notice (in this Act referred to as "a breach of condition notice") on the licence holder requiring him to secure compliance with the conditions as are specified in the notice.
(2) A breach of condition notice shall specify the steps which the authority consider ought to be taken to secure compliance with the conditions specified in the notice.
(3) The period allowed for compliance with the notice is such period of not less than 28 days from the date of service of the notice as specified in the notice but this period may be extended by the authority.
(4) If at any time after the end of the period allowed for compliance with the notice—
(5) It shall be a defence for a person charged with an offence under subsection (4) to prove—
(6) The person who is guilty under subsection (4) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(7) The provisions of Part 3 of Schedule 1 (appeals) shall apply to a notice served under this section as if it were an improvement notice (omitting paragraphs 12, 13, 17 and 18).
The noble Lord said: My Lords, this amendment was included in an earlier group, but I wish to speak to it now. In relation to HMO selective licensing, the thrust of the Bill is to criminalise in the event of non-compliance.
I understood the Minister's remark during Committee stage that something might be so serious that only an immediate revocation would be a suitable answer. That is draconian and should be reserved for cases where there have been repeated infringements. However, we are tabling the new clause as we still believe that there is a need for something like our amendment to give some leeway to landlords, managers and local authorities in the first instance.
I will quickly remind the House of the main thrust of Amendment No. 61. A breach of condition notice is suggested as an intermediate step that the local authority can adopt in less serious cases. It would allow the local housing authority to set out the breaches complained of and the steps required of the landlord to comply with the notice. The landlord would have 28 days in which to comply.
Non-compliance with the notice would be a criminal offence, potentially attracting a level-five fine. There would be provision for a defence of reasonable excuse where the landlord could demonstrate that he had taken all reasonable measures to comply with the notice and/or that he had a reasonable excuse for failing to comply with all the conditions listed.
It enables a stern warning to be sent to the landlord without the need to go immediately to the extreme step of revoking the licence or instituting criminal proceedings. In most cases it will ensure compliance without the need to go any further. It would allow local authorities to fire a warning shot and is another weapon in their armoury. It would also avoid criminalising landlords. It will save costs for both local authorities and landlords and, through not having such a heavy-handed approach, it will foster good relations between housing associations and landlords. I beg to move.
My Lords, Amendment No. 61 would enable a local housing authority to serve a breach of condition notice on a licence holder who fails to comply with any of the licence conditions. The notice would require the licence holder to comply with the conditions specified in the notice in a period of not less than 28 days from the date the notice was served but the period could he extended by the authority.
The amendment is aimed at ensuring that a person does not find him or herself in an inadvertent breach of a licence condition and at risk of prosecution. It inserts a procedural step to give landlords a last chance before they face having to go to court. Noble Lords will recall that Clause 70 has now been amended and provides that a licence may be revoked only where there are serious or repeated breaches of licence conditions. It is difficult to conceive of any situation where a prosecuting authority would consider it in the public interest to bring a prosecution for a single trivial breach of a licence condition when it could not even revoke the licence for that breach. We have been over the issue and in making my comments earlier I made it plain that I did not think it was an appropriate amendment under the circumstances. I also pointed out that it would have the unfortunate effect of inhibiting prosecutions where there have been deliberate and serious breaches of licence conditions. Some conditions are not capable of being remedied within 28 days of service of a notice and some breaches might be so serious as to warrant immediate prosecution. I hope that having heard what I have said, and what I said earlier, the noble Lord will withdraw his amendment.My Lords, I thank the Minister for that reply. We will examine all this in some detail after today because we feel that there need to be steps that are not so serious as the final one. We will read in Hansard what the Minister said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 [ Licences under Parts 2 and 3: mandatory, conditions]:
moved Amendment No. 62:
Page 209, line 34, leave out "keep smoke alarms in the house" and insert "ensure that smoke alarms are installed in the house and to keep them"
On Question, amendment agreed to.
Clause 68 [ Licences: general requirements and duration]:
moved Amendment No. 63:
Page 46, line 11, leave out "5" and insert "7"
The noble Lord said: My Lords, we turn to the concept that an HMO licence should continue in force for not more than five years, as we have just discussed. The Government estimate that 120,000 properties will be subject to compulsory licensing. The industry believes that that is a gross underestimate and considers the figure to be closer to 300,000. Even using the Government's estimate a massive effort will be required to meet the requirement for mandatory licensing of HMOs, and local authorities do not have the resources available to deal with the number of inspections required.
I believe that in Committee the Minister was not persuaded about the merits of a five-year timetable. That is why we have come back with yet another concession—the Government are getting many concessions out of us today—suggesting a seven-year period. We believe that it would be a more practical and sensible way forward and one that we hope the Minister will look upon with favour. I beg to move.
My Lords, this amendment would increase the maximum duration for a licence from five to seven years. The issue of for how long a licence should be granted will depend on the merits of each case. However, there must always be a maximum period after which the local authority must review the matter and decide in the light of new circumstances or existing circumstances the terms on which a new licence should be granted, if at all.
In Committee we argued that 10 years was too long a period. The only real benefit of such a protracted duration would be a small saving in administrative costs. If local authorities were to try to keep in touch with what was happening on the ground in HMOs, they would inevitably have to review licences that they had granted for such long periods. That process in itself would incur substantial additional administrative costs. We promised to give the issue further consideration in advance of Report but, having done so, we are firmly resolved to stick by the five-year period for the arguments that were made in Committee but also on several other counts. First, five years chimes with the existing provisions for registration schemes with control orders. I shall not regale the noble Lord too long on that but those control orders were set up under the Housing Act 1996 by a Conservative government and we have been under no pressure to extend similar provisions for registration schemes. Secondly, there is a read-across from this provision in the Bill to others such as it being incumbent on local authorities to satisfy themselves that they have discharged their Part 1 functions in respect of licensable HMOs as soon as reasonably practical and within the five-year duration of the licence. Thirdly, we would be faced with the prospect of a not insignificant raft of consequential amendments that would need to be tabled for Third Reading—not a prospect that I think anyone in your Lordships' House would relish, particularly having heard what was said today. Fourthly, I do not consider that we have had a convincing case made for a period longer than five years. Finally, I offer the reassurance that we are committed in any event to reviewing the licensing regime within three years of implementation and to consulting on the way in which the review is carried out. That would be the most opportune moment to make any changes once we have the benefit and knowledge of how the licensing regime is operating on the ground. We could well decide at that point that a compromise should be struck on the issue that would allow local authorities greater discretion. As a general rule and for now I think that the Government have pitched the period of five years about right for the maximum duration for a licence. As I explained, that has the benefit of being consistent with the provisions for registration schemes introduced by the previous Conservative government. For those reasons I hope that the noble Lord will withdraw the amendment.6.15 p.m.
My Lords, given the Minister's remarks I believe that he was almost persuaded that the relevant period should be seven rather than five years. I hear what has been said and note that the Government do not wish to depart from the period of five years for the maximum duration for a licence but that the matter will be reviewed in future. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 64:
Page 46, line 17, leave out "not"
The noble Lord said: My Lords, as the Bill stands, HMO licences and selected licences are not transferable. These remarks therefore apply to Amendments Nos. 64, 65 and 84 that would create a scheme for the transfer of HMO licences.
Again, the arguments in favour of such a scheme were well rehearsed in Committee. However, it is perhaps worth spending a moment reminding ourselves of their merits. Each time a property is sold, the existing licence holder will have to apply for the licence to be revoked and the proposed licence holder will have to apply afresh. The result is that each time the local authority will have to reconsider the property. It may want to change the standards or impose fresh conditions, that is despite the fact that these matters can be looked at every five years when the licence has to be renewed—as we have just discussed—although as a result of our previous discussion that period may become more flexible.
If there were a system of transferring licences, the local authority would need to look only at the issue of whether the licence holder and the manager, if different, are fit and proper persons and whether the management arrangements are satisfactory. It would not have to look at property specific issues. This would also narrow the uncertainty from the perspective of both buyers and sellers. You could have a situation where a property had been assessed for a licence just a few months before it was sold, but the local authority would have to undertake a new assessment. The workload for local authorities will be tremendous anyway. Having to assess a property every few months could become a nightmare. Landlords could be forgiven for thinking that this is a system which enables a new fee to be charged all over again.
A transfer system would enable a reduced fee to be charged to reflect the simpler processes, thus reducing conveyancing costs. Conveyancing costs would also be reduced if the terms of the condition of contract could be simplified by excluding property specific topics; otherwise, conveyancing will be slowed down even more. I beg to move.
My Lords, Amendment No. 64 would change subsection (6) of Clause 68 to allow local authorities to transfer licences instead of having to go through the full licence application process. I believe that this amendment was discussed at some length in Committee. I do not think that the amendment is particularly helpful. The application process is, after all, designed to ensure that adequate standards of management are in place. That stands even where information relating to the property has been collected as part of the application process by the original landlord. These safeguards include checks that the landlord or manager is a fit and proper person and has adequate management experience and adequate arrangements are in place. Those are some of the fundamental objectives that underlie the Bill.
Amendments Nos. 65 and 84 would provide that transfers may take place either with the agreement of the licence holder or when there is a change of circumstances. The transfer process is akin to an application for a licence with the exception that the local authority does not have to satisfy itself as to the minimum, rather than the maximum, number of households or persons appropriate for the property in question. I have some sympathy with the intent behind the amendment but, on balance, we do not think that it achieves its purpose. Given the similarities in the process to the existing new licence application process, it is not clear to me where time savings would be made. Such time savings could equally be achieved through a well targeted application form that allows landlords to identify where the property-related information supplied by the previous landlord is still pertinent or where the applicant has met the fit and proper test for another property. An underlying aim of the proposed transfer scheme is to reduce the application fee that applies for licence applications, and hence reduce costs for the new landlord. In our view the application fees charged for licence applications are proportionate to the costs of the scheme and can be used only towards the costs of that scheme. Even in administering a transfer application local authorities will incur some costs as they are required to check whether any new licensing applicant meets the fit and proper test and that adequate management arrangements are in place. If this amendment and Amendment No. 84 were accepted, rather than receiving a full five-year licence in exchange for an application fee, the applicant for transfer would receive whatever remained from the previous landlord's licence in exchange for a transfer fee. I do not accept that that benefits anyone. I hope that the noble Lord will feel able to withdraw the amendment.My Lords, I thank the Minister for that reply. I said that I thought that under the management scheme, the owners should go through a scrutiny process, but I was concerned that a building that had been inspected and agreed only a few months before it was sold should not have to go through the process again, involving costs and time for local authorities. There are 300,000 such buildings, many of which will change hands. If they have been inspected only a few months before, it should not be necessary to inspect them again. I certainly did not want to suggest that there would be no double-checking on the appropriateness of the management of the properties.
I note what the Minister said, and we may have to come back at Third Reading to the issue of the transfer of licences. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[ Amendment No. 65 not moved.]
Clause 72 [ Offences in relation to licensing of HMOs]:
moved Amendment No. 66:
Page 49, line 14, after "he" insert "knowingly"
On Question, amendment agreed to.
[ Amendment No. 67 not moved.]
moved Amendment No. 68:
Page 49, line 16, at end insert ", and
(d) in this subsection "occupy" means occupation as an only or main residence (or treatment as such in accordance with section 222) and any reference to occupation shall be interpreted accordingly."
The noble Baroness said: My Lords, Clause 72(2) creates an offence whereby a landlord permits a house in multiple occupation to be occupied by a number in excess of that permitted under the HMO licence for the property. The Government have met some of our concerns about the provision by introducing an amendment so that the landlord is guilty only if he "knowingly" permits occupation in breach of the licence. We have just supported the Government's amendment and withdrawn our one. I want to make that clear.
However, Amendment No. 68 is concerned with the definition of occupation for these purposes. Clause 245(6) defines an occupier simply as someone who,
"occupies the premises as a residence".
Legally one can have more than one residence. The presence at a property of someone who is a casual resident as opposed to a permanent resident could mean that a landlord is guilty of an offence. The amendment would clarify the expression "occupation" so that an offence would be committed only if occupation were by someone for whom the property is his only or main residence.
There is an inconsistency. When determining whether the house needs to be licensed, the test is one of only or main residence. We had understood that the offence would be committed only when the number of permanent residents exceeds the permitted number. Without the amendment there is a mismatch between the offence under the clause and the criteria for whether a house is one in multiple occupation in the first place.
In this day and age boyfriends or girlfriends regularly stay over, or people often stay with friends overnight. A landlord may let a licensed HMO to five people in which all the rooms have double beds that have been supplied by the landlord and are capable of being occupied by more than one person. Nowadays that is what tenants usually demand. What happens if on occasion all beds are occupied to their full capacity by guests? Alternatively, what if one room is occupied regularly at the weekend, for example?
The amendment would make it clear that the offence occurs only when the property is permanently occupied in excess of the permitted numbers rather than criminalising transient arrangements. I beg to move.
My Lords, it does not really matter whether the residence is "only" or "main". It just needs to be a residence. There is no way that weekend or overnight occupation will count as residence.
We are satisfied that the definition in Clause 245(6) is strict. It would prevent people who have stayed overnight being counted as occupiers for the purposes of Clause 72. That makes the amendment unnecessary. There are definitions, but it would not matter whether it was "only" or "main". It must be a residence. Transient, weekend or overnight occupation cannot be claimed as residence.My Lords, I am grateful for that reply. I hope that the Minister is correct. If an inspection took place and the number was in excess of that for which a licence had been granted, there would be a test of strength as to whether that person was a resident. If that is plainly and clearly on the record, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 69 not moved.]
had given notice of her intention to move Amendment No. 70:
Page 49, line 36, leave out "£20,000" and insert "level 5 on the standard scale"
The noble Baroness said: My Lords, the Minister dealt with this point and made it absolutely patently clear that there was not much point in my going further as the amendment would not be accepted. I shall not waste any more time on it.
[ Amendment No. 70 not moved.]
My Lords, Amendment No. 70A is on the supplementary sheet. I must point out that if either this amendment or Amendment No. 71 is agreed to, I cannot call Amendment No. 72.
My Lords, before the Minister speaks—
My Lords, what I am about to say will be really helpful.
My Lords, shall I say it first so that the Minister can tell me how helpful he will be, as he will know the burden of my objection?
My Lords, if I get it wrong the noble Baroness can come back to me. I am determined to stay in order. There is no one to call order in this place as there are no orders. It is run on an anarchy basis. However, I shall move Amendment No. 70A so that I can speak to the government amendments. At the same time, I shall speak to the opposition amendments. Finally, when I am asked to move my amendment, I shall not do so. Does that help?
My Lords, it would be helpful if the Minister could explain his amendments. The government amendments are being moved in anticipation of the amendments that we have tabled. The Minister said at the outset that his amendments were meant to address the matters raised by the amendments in the next group, the first of which is Amendment No. 71.
If the Minister is kind enough to explain his amendments, perhaps it will be possible for us to move our amendments and then for the Minister not to move his amendments formally.moved Amendment No. 70A:
Leave out Clause 73 and insert the following new Clause—
"Other Consequences Of Operating Unlicensed Hmos: Rent Repayment Orders
(1) For the purposes of this section an "unlicensed HMO" means an HMO which is required to be licensed under this Part but is not so licensed.
(2) Nothing in this Part affects—
(3) But amounts paid in respect of rent or other periodical payments payable in connection with such a tenancy or licence may be recovered in accordance with subsection (4) and section ( Further provisions about rent repayment orders).
(4) If
the tribunal may make an order (a "rent repayment order") requiring the appropriate person to pay to the applicant such amount in respect of the housing benefit mentioned in subsection (5)(b), or (as the case may be) the periodical payments paid as mentioned in subsection (7)(b), as is specified in the order.
(5) If the application is made by the local housing authority, the tribunal must be satisfied as to the following matters—
(6) Those requirements are as follows—
(7) If the application is made by an occupier of a part of the HMO, the tribunal must be satisfied as to the following matters—
(8) Where a local housing authority serve a notice of intended proceedings on any person under this section, they must ensure that a copy of the notice is received by the department of the authority responsible for granting the housing benefit to which the proceedings would relate.
(9) In this section—
- "the appropriate person", in relation to any payment of housing benefit or periodical payment payable in connection with occupation of a part of an HMO, means the person who at the time of the payment was entitled to receive on his own account periodical payments payable in connection with such occupation;
- occupier", in relation to any periodical payment, means a person who was an occupier at the time of the payment, whether under a tenancy or licence or otherwise (and "occupation" has a corresponding meaning);
- "periodical payments" means periodical payments in respect of which housing benefit is payable under regulation 10 of the Housing Benefit (General) Regulations 1987 (S.I. 1987/1971) or any corresponding provision replacing that regulation."
The noble Lord said: My Lords, I shall repeat what I said earlier this afternoon. Government Amendments Nos. 70A, 72B, 72B, 85A, 86A and 86B are, in effect, a synthesis of the amendments tabled by the noble Baronesses, Lady Hamwee and Lady Maddock, and those tabled by the noble Baroness, Lady Hanham, and the noble Lord, Lord Hanningfield.
Before I speak about the detail behind the amendments, I want to take the opportunity, as I tried to do this afternoon, to thank all four colleagues in the House for their co-operation in this matter. They may not be aware of it, but they have co-operated. Early sight of their amendments has meant that civil servants who, it says in my brief, "worked like the clappers"—they were here until 11.30 last night—have been able to assemble the government amendments. We have been in a position therefore to respond by tabling amendments on Report for your Lordships' consideration. I hope that the package of government amendments will meet something that all three parties think should proceed. That is an example of how the House can work. I shall withdraw my amendment so that we can come back at Third Reading.
6.30 p.m.
These amendments are a synthesis of those tabled by the opposition parties. Their effect is to amend the existing provisions to provide that rent is payable but that a landlord who receives rent while operating an unlicensed property could be liable to a penalty equivalent to any rent received during the period of the offence, up to a maximum of 12 months. The residential property tribunal would be given the power to make a rent repayable order, imposing the penalty where it determined that an offence had been committed under Clause 72(1) or Clause 93(1) in Part 3 of the Bill.
A local housing authority would be entitled to make an application for such an order where it discovered that a landlord or managing agent was committing an offence, including circumstances where there had not been a prosecution, and any housing benefit that had been paid to that landlord either directly by the local housing authority or indirectly by the tenant during by period when such an offence was being committed.
Persons other than the local housing authority who had paid money to the landlord would also be permitted to make an application to the residential property tribunal for a rent repayable order where an order had already been granted to a local housing authority in respect of the same property or where the landlord had been convicted of the offence. Such rent would be recoverable as an ordinary civil debt.
The sanction proposed would help to prevent a landlord profiting from renting properties illegally, including cases where this would be at the expense of the public purse through housing benefit. It would also provide a civil sanction through the residential property tribunal for cases where potentially slow and resource-intensive action through the courts was not practical.
Amendments Nos. 72B and 86B remove the right to automatic possession in Section 21 of the Housing Act 1988 in relation to assured shorthold tenancies for unlicensed landlords. That would have the effect of bringing licensing in line with similar provisions that have been introduced in Part 6 of the Bill in respect of the tenancy deposit scheme. As well as providing consistency with the tenancy deposit scheme, it would also mean that there would be an incentive for landlords to obtain a licence and it would also prevent landlords evicting tenants to avoid licensing.
We have included additions in these government amendments over and above what would have been included in a pure synthesis, and these are chiefly down to the fact that a number of technical points need to be ironed out. That is precisely why we were grateful for sight of the opposition amendments on the basis that we were not—I repeat: not—going to table any amendments for the reasons that I gave earlier.
The technical points to be ironed out include notably, for example, changes to deal with the treatment of housing benefit and also to provide for a "notice of intended proceedings" procedure, giving landlords an opportunity to make representations before any application by the local housing authority to the tribunal. Otherwise, the amendments are self-explanatory, although I accept that they are lengthy. As I said, they pick up the content of the amendments tabled by noble Lords opposite.
I did not have time to write to noble Lords and noble Baronesses opposite at the voluminous length that is normally the case, but I promise to do so later this week—that is, before the end of the week; it is now Wednesday. As I said, when the time comes, I shall withdraw the amendments so that, between now and Third Reading, we can tidy them up as required by outsiders and ourselves. These things are never perfect and we never have them exactly right; there is always something that needs to be looked at. That said, I repeat that we are extremely grateful for the early sight of the opposition amendments, which we honestly did receive.
My Lords, I am very grateful to the Minister for that explanation. What upset us most was the fact that we had no forewarning of this matter. Our amendment was not tabled very early because of an indication that we received during the previous stage of the Bill, when the noble Lord, Lord Bassam, said:
that spin-off being vulnerable tenants being evicted. Discussions took place with the department and Shelter, and I am very grateful to Shelter for being the go-between on this issue. But I think that in the end we got rather muddled. My impression was that we would have a discussion now and the Minister would come forward at Third Reading with these amendments, but then they suddenly appeared today and that makes life rather difficult. However, we are getting there in a spirit of co-operation. Our other big concern related to people on housing benefit and what would happen if overpayments of housing benefit were made. Very vulnerable people could risk being homeless. The tenants involved are likely to be the most vulnerable and those who find it most difficult to cope with the system. They are also tenants for whom the administration of housing benefit is not absolutely A1, and problems could arise. I have one or two queries about the Minister's amendments. There is no point in my talking at great length because the Minister has covered some of the issues. We are very pleased with Amendments Nos. 72B and 86B, which, as the Minister said, affect Section 21 powers—an issue that I raised on the previous occasion. The housing benefit issue is still something of a problem. Obviously the clauses have been drafted by the Minister's department, which has been able to consider the matter in far more detail and has been able to dot the "i"s and cross the "t"s in a way that is much more difficult for us to do. The Minister may not be able to confirm this today but we need to ensure that no tenants will be thrown out of their homes because council officers decide to seek repayment of housing benefit paid to an unlicensed landlord. That is one area about which we need to be careful. That said, I appreciate what the Government are doing and I think that all those who were concerned about the matter also appreciate it. I hope that by Third Reading we will have got it right. When we reach my amendment, I shall not move it as I have spoken to the whole group together."Officials are at present consulting relevant stakeholders on the issues. The best we can say today is that while we are convinced that we have the principles right, it is only right for us to give som further thought to the matter and report back at a later stage the Bill. At present we should retain the clause and further consider the issues in concert with the LGA, Shelter and the other organisations which have expressed understandable concern about a potential spin-off from the clause".—[Official Report, 9/9/04; col. 771.]
My Lords, we have tabled Amendments Nos. 72 and 73 in this group. To some extent, I was trying to say the same thing as the noble Baroness, Lady Maddock. It would have been more helpful if the government amendments had come after our amendments because, in relation to amending an amendment, it would have provided an opportunity for those of us who have tabled amendments to address them rather than being slightly cut off, as we have been. There is absolutely no point in now going through in detail the amendments that we have tabled.
I am grateful to the Minister for saying that he will withdraw or not move his amendments today because that then gives us an opportunity to talk to those who have been concerned about this matter. We have not been talking to Shelter, but the Residential Landlords Association has also been very concerned. We now need to ensure that the synthesising has not synthesised out something about which that organisation would have been concerned. I presume that the Government will bring back these amendments at Third Reading. If necessary, we shall also bring back some amendments, and we can then finally sort out the matter.My Lords, I do not know when Third Reading will be.
My Lords, it will be at the beginning of November.
My Lords, then there is some time. We have put our amendments on the table. Before the end of the week I shall write to noble Lords. I am happy to arrange for discussions so that we have all three names on the same amendments rather than have amendments to amendments. We should use this time to achieve a 100 per cent agreed position, if that is possible.
My Lords, I thank the Minister for that response. That would be really helpful. As I have had little opportunity sitting on the Bench, listening with one ear and looking with one eye, to try to check the amendments, I believe we should perhaps accept that that is the best way forward. We shall have the amendments checked; we shall ensure that they cover all the aspects about which we have been concerned; and we can have a discussion before Third Reading, which I understand will be at the beginning of November. For today's purposes I too will not press the amendments on this matter that I have tabled. I hope we can return with agreed amendments at the last stage.
My Lords, I hesitate to intervene, but the noble Lord, Lord Rooker, should perhaps indicate his intention on Amendment No. 70A now.
My Lords, my intention is to withdraw Amendment No. 70A and not to press all the government amendments associated with it.
Amendment, by leave, withdrawn.
Clause 73 [ Further sanctions relating to unlicensed HMOs]:
[ Amendments Nos. 71 to 74 not moved.]
Clause 77 [ Licensing of houses to which this Par applies]:
moved Amendment No. 75:
Page 53, line 18, at end insert—
"(6) Whatever the arrangements of management, it is th manager who shall be ultimately responsible for a house under Part possessing a valid licence."
The noble Baroness said: My Lords, considerable discussion on this issue in Cor we felt that it deserved to be looked at
amendments require that applications for licences shall be made by the manager of a house. We are concerned that, as the Bill stands, the owner, rather than his agent—many owners employ agents to manage properties—remains responsible for licensing. Our amendments in this group are designed to target accurately the responsibilities by requiring that applications for licences be made by the manager of a house.
We need to consider what happens in relation to managing agents when a property is licensed to an owner who, within the terms of the licence, passes that responsibility to a managing agent; and whether managing agents need to have some form of licensing as well if they are to be responsible for the expanded nature of houses in multiple occupation. The purpose of the amendment is to scoop up the managing agents. I beg to move.
My Lords, as the noble Baroness has said, we have had some discussion on these matters before. I shall try to summarise quickly why we think they are not a good idea.
In essence, the amendments would undermine one of the key provisions of the Bill. The licensing regime itself will identify who is the most appropriate person to hold the licence for any given property and that person will then be held responsible for resolving any issues that may subsequently arise. It would not be helpful, or indeed fair, to stipulate that the manager should always be the licence holder, regardless of the particular management arrangements that have been put in place.6.45 p.m.
Amendment No. 75 seeks to add a new provision to Clause 77, placing the duty for obtaining a licence for a property in the designated area on the person managing, as opposed to the owner, of the property. From previous debates, I am aware that noble Lords opposite are concerned about the potential problem of a managing agent being paid to manage a property on behalf of the owner, but avoiding responsibility because the owner is the licence holder.
In the end, I believe that that is a fear that is unfounded. Under the provisions of Clause 86, an authority must be satisfied that the person holding the licence is the most appropriate person to do so. Therefore, if there is a fit and proper person willing to act as the manager, and he is the most appropriate person to hold the licence, we would expect the local authority to grant the licence to him rather than to the owner. In that case, as is right and proper, he will be the person liable should the property fail to comply with any of the provisions in this Bill.
On the other hand, it is often the case that the manager of a property is also a tenant. While he may technically have responsibility, the owner is, in fact, the person who is in control. In such situations, clearly it should be the owner who is the licence holder and not the manager.
Unfortunately, the amendment contains the phrase,
"Whatever the arrangements of management".
That suggests to us that anyone with the title "manager" should be held accountable for applying for a licence, regardless of whether he has any genuine role in the management of the property. Needless to say, that is not how we would like to see licensing operate.
I am quite certain that the noble Baroness would not wish to enable bad landlords to avoid their responsibilities, but this amendment would allow an owner to employ someone at a nominal rate—possibly a tenant—to call that person the manager and thereby sidestep all the liability for provisions under this part of the Bill.
Amendment No. 82, also in this group, would replace the requirement that a local authority is satisfied with the management arrangements in place, with a requirement that the authority is satisfied that the manager has ultimate responsibility for the management of the property in question.
In a nutshell, there are two problems with this amendment: first, the subsection that it removes; and, secondly, the subsection that it introduces. I have already explained why an amendment making managers ultimately responsible for obtaining licences is unnecessary.
Clause 86(3)(d) is crucial to the efficacy of a licensing regime because it requires a local authority to approve the proposed management arrangements for a property when deciding whether or not to grant a licence to an applicant; for example, we do not want to end up with a situation where a manager is granted a licence because he is fit and proper, but no heed is paid to the fact that he cannot be reached in emergencies—or otherwise—because he will not divulge his telephone number.
It is for those practical, hard-nosed reasons that we believe that we have the balance of this part of the legislation right. I hope that the noble Baroness, having heard what I have said, will again agree to withdraw the amendment.
My Lords, I thank the Minister for that explanation. Our concern remains with properties where the owner is absent. He cannot possibly be the manager of a house and have responsibility. I am sure that the Minister has many examples in Brighton of houses in multiple occupation which are owned by absentee landlords and where the responsibility for the management of the property is left in a vacuum or is passed to managing agents who may or may not look after the property.
I need to consider this amendment again in the light of what the Minister has said. I know we have addressed the matter once before. It is important that we ensure that people who manage properties are licensed and responsible. I shall withdraw the amendment today, but I cannot say that I shall not return to the issue again at Third Reading. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 78 [ Designation of selective licensing areas]:
[ Amendment No. 76 not moved.]
Clause 82 [ Duration, review and revocation of designations]:
moved Amendment No. 77:
Page 56, line 21, leave out "from time to time" and insert "keep under"
The noble Lord said: My Lords, in tabling this amendment again we are responding to a request from many noble Lords in Committee, including the noble Baroness, Lady Hamwee. I look forward to support from all noble Lords on this amendment. The words "from time to time" do not mean the same as "keeping under review". "Keeping under review" is a permanent action. We believe that this is far more important when it comes to a local authority reviewing the designations that it has made under this part of the Bill. I believe that even the Minister hinted that he preferred the terminology that I put forward in Committee. Therefore, in much anticipation, I beg to move.
My Lords, we have been there before and I do not have a great deal to add. We discussed earlier the question of how best to monitor the effectiveness of a licensing scheme. The noble Baroness expressed concern about the term "from time to time", suggesting that it was insufficiently precise.
I do not think that there is a great deal of difference in our positions. I understand the point the noble Lord is making. None of us wants selective licensing schemes to continue in force when they are no longer performing any useful role. That would be completely unnecessary regulation. However, I do not think that the amendment offers an improvement to the provisions as drafted. To keep a scheme under review implies a continuous element to the review, and it is difficult to see how this would work in practice. "From time to time" encapsulates the level of monitoring that is reasonable under the circumstances. I know that the words have been used by my noble friend, and there was perhaps a slight case of overheating at the time. However, I think it fair to say that "from time to time" is the legal equivalent of being kept under permanent review, and that was the point which the noble Lord made at an earlier stage. I believe that there is understanding of the expression as we have it in the Bill, and I hope that the noble Lord, having made his point, will withdraw his amendment.My Lords, I am very disappointed indeed that the Minister could not accept this amendment, as we almost had it agreed in Committee. As the Minister will not accept it today, it may be that we shall have to vote on it at Third Reading. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 83 [ Requirement for Part 3 houses to be licensed]:
moved Amendment No. 78:
Page 56, leave out line 36 and insert—
"(c) a management order is in force in relation to it under Chapter 1 or 2 of"
On Question, amendment agreed to.
Clause 85 [ Applications for licences]:
[ Amendment No. 79 not moved.]
moved Amendments Nos. 80 and 81:
Page 58, line 34, after "under" insert "Chapter 1 of".
Page 58, line 36, leave out "Part" and insert "Chapter".
On Question, amendments agreed to.
Clause 86 [ Grant or refusal of licence]:
[ Amendment No. 82 not moved.]
Clause 88 [ Licence conditions]:
moved Amendment No. 83:
Page 60, line 24, leave out "such steps as are reasonably practicable" and insert "reasonable and practicable steps"
On Question, amendment agreed to.
Clause 89 [ Licences: general requirements and duration]:
[ Amendment No. 84 not moved.]
Clause 93 [ Offences in relation to licensing of houses under this Part]:
[ Amendment No. 85 not moved.]
Clause 94 [ Further sanctions relating to unlicensed Part 3 houses]:
[ Amendments Nos. 85A to 87 not moved.]
Clause 97 [ Interim and final management orders: introductory]:
moved Amendments Nos. 88 and 89:
Page 67, line 10, leave out subsections (5) and (6).
Page 67, line 29, at end insert—
"(9) In this Chapter "third party", in relation to a house, means any person who has an estate or interest in the house (other than an immediate landlord and any person who is a tenant under a lease or licence granted under section 103(3)(c) or 112(3)(c))."
On Question, amendments agreed to.
Clause 98 [ Making of interim management orders]:
moved Amendment No. 90:
Page 67, line 44, at end insert ", and
(c) on an application by the authority to a residential property tribunal, the tribunal by order authorises them to make such an order; and the authority may make such an order despite any pending appeal against the order of the tribunal (but this is without prejudice to any order that may be made on the disposal of any such appeal)."
The noble Lord said: My lords, the purpose of these amendments is to ensure that all interim management orders require the prior authorisation of the residential property tribunal. An interim management order is a severe remedy, under which the local authority takes over management and control of a property.
The local housing authority is under a duty to make an interim management order if an HMO is a Part 3 house which requires a licence, is not licensed, and they consider either that there is no reasonable prospect of it being licensed in the near future or that the health and safety condition is satisfied. An interim management order must also be made where they have revoked the licence and consider that, on the revocation coming into force, there is either no reasonable possibility of the house being licensed in the near future or that the health and safety condition will be satisfied.
The authority can make an interim management order where the health and safety condition alone is satisfied, but here they need the prior approval of the RPT. This is an inconsistent approach, especially as prior authorisation is required for all interim empty-dwelling management orders.
There is a right of appeal against an interim management order, but only after the event. By then, the local authority will have taken over the property and, if it transpires that the order has been made unjustly, the damage will have long since been done. There are already problems of delays in hearing appeals before RPTs.
If advance RPT authorisation is required in one category of case, why not in all? There are judgments to be made by the local authority before making an interim management order, so there is always the potential for disagreement as to whether an order should be made.
Arguments could well arise between the landlord and the authority as to whether there are prospects of the property being licensed in the near future. Issues could also arise as to whether the health and safety condition is fulfilled. These are matters where the landlord should be able to make representations to the RPT before any order is made, not afterwards on appeal. I beg to move.
My Lords, the amendment would require the approval of a tribunal before an authority could make an interim management order in respect of a house which is required to be licensed under Part 2 or Part 3 but is not licensed, and where the authority consider that there is either no reasonable prospect of it being licensed in the near future or the health and safety condition in Clause 100 is satisfied.
As currently drafted, the Bill requires the approval of a tribunal for discretionary interim management orders, such as special interim management orders under Clause 98 and interim management orders for non-licensable houses in multiple occupation. This recognises that an interim management order is a significant imposition upon landlords' rights. The requirement for approval by a tribunal is an appropriate safeguard where an authority is exercising its discretion. However, in regard to licensable HMOs the decision to make an interim management order is not a result of the exercise of discretion but, rather, a response to a set of circumstances prescribed in the Bill. The local authority must make an interim management order in two defined sets of circumstances, the first of which is where there is no reasonable prospect of it being so licensed in the near future. This is the circumstance in which the landlord fails to apply for a licence or the landlord or managing agent cannot meet the fit and proper person test under the requirements of the Bill. In such circumstances, the local authority must make an interim management order. Interim management orders are implemented in situations which require a local authority to step into the manager's shoes where a suitable person cannot be found. Hence they need to be practical, workable and as unbureaucratic as possible—unlike the current control orders, which some authorities find far too cumbersome. The other circumstance in which a local authority may make an interim management order is where the health and safety condition of the Bill is satisfied. This represents a very serious set of circumstances, in which the local authority is required to manage the property to protect the health, safety or welfare of the occupiers or licensable properties, or of people living nearby. In such cases it may be essential to the health and safety of the relevant persons that effective management controls should be put in place very quickly, not weeks or months down the line after a tribunal has considered the issue. It is important to recognise that if a landlord disagrees with the local authority's decision to make an order, he or she can appeal against that decision to the tribunal. The tribunal has wide powers in these circumstances and can confirm the order, with or without amendments to the terms, or revoke it and order that a licence should be granted, or a temporary exemption notice issued. I hope that has provided sufficient assurance to the noble Lord that there are safeguards in place to ensure that management orders are only made when it is appropriate to make them. I doubt whether the noble Lord has ever had any experience of an interim management order. In all the years I was a member of my local authority, I can remember only a few. They have to be approached very carefully by officers; they can take months to put in place; great care is taken to achieve the objective; and usually they are made only in dire circumstances. All that I have said applies also to Amendment No. 91. It is probably even less appropriate in those circumstances. I hope that the noble Lord feels able to withdraw both amendments.My Lords, I thank the noble Lord for his reply, which was helpful. As with several other amendments, we shall have to analyse it in some detail, but it probably covers the points that I was making. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7 p.m.
[ Amendment No. 91 not moved.]
moved Amendment No. 92:
Page 68, line 46, leave out subsection (8).
The noble Lord said: My Lords, I tabled the amendment again in the hope that the Minister would be able to furnish me with any further examples of what would be incorporated within subsection (8). I am still not entirely comfortable with the explanation on the face of the Bill.
Perhaps the Minister would explain how this would work in practice; for instance how would a housing authority know if part of the house was in shared ownership or in some other shared agreement? I beg to move.
My Lords, I recollect using most of my notes here in Committee when the noble Lord proposed similar amendments. I understand why he has raised the matter again, given the question that he has just asked.
The amendment would take away the local authority's discretion to make an interim management order which did not apply to any part of a house occupied by a resident landlord. I gave examples where it might be necessary to include a landlord's accommodation in the order, where, for example, he may have taken a room or set of rooms and shared facilities with the tenants such as a bathroom or kitchen, or if he was behaving in an anti-social manner or was harassing the tenants. Inclusion in the order in those circumstances would make it far more practical for the local authority to be able to take effective legal action against him—it would know which part of the house he was occupying. The landlord may occupy a self-contained basement flat and it may be reasonable for the authority to exclude that flat from an interim management order so that it does not have to carry out repairs or do other things at the landlord's expense. That landlord would himself have the discretion to determine how the money, which would otherwise be deducted from his rental income, was spent on the repair of the area in which he privately resides. If the landlord is aggrieved by any decision to include or exclude his personal accommodation from the interim management order he will have a right to appeal against that decision to the residential property tribunal. I should mention that the exact precedent for this provision is contained in Section 380 of the Housing Act 1985, in relation to "control orders". So there is nothing new being proposed in this regard in the Bill. It is just a practical measure to ensure that controls are not imposed over owner occupiers—the landlords—unless they are essential. That is the purpose of the exercise.My Lords, I thank the Minister for that reply. It seems that there will still be much dispute on this issue. How will a local authority know the situation without looking in every room in every house to ask, "do you live there or not", which the landlords might dispute? The Minister said that people could appeal. It seems that there will be many appeals on this matter. However, I have listened to the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 105 [ General effect of interim management orders:immediate landlords, mortgagees etc.]:
moved Amendments Nos. 93 and 94:
Page 74, line 43, leave out "and in" and insert—
"except to the extent that any of those rights or remedies would prevent the local housing authority from exercising their power under section 103(3)(c).
( ) In"
Page 75, line 8, leave out subsection (6).
On Question, amendments agreed to.
Clause 106 [ Financial arrangements while order is in force]:
moved Amendments Nos. 95 and 96:
Page 75, line 19, leave out "relevant expenditure." and insert—
"( ) relevant expenditure, and
( ) any amounts of compensation payable to a third party by virtue of a decision of the authority under section (Compensation)."
Page 75, line 24, after "expenditure" insert "and any amounts of compensation payable as mentioned in that subsection"
On Question, amendments agreed to.
moved Amendment No. 97:
After Clause 111, insert the following new clause—
"Power To Require Neglect Of Management To Be Remedied
(1) If in the opinion of the local housing authority, the condition of a house is defective in consequence of neglect to comply with the requirements imposed by regulations under section 217 (management regulations), the authority may serve on the person having control of the house or the person managing the house a notice specifying the steps which, in the opinion of the authority, are required to make good the neglect.
(2) The notice shall require the person on whom it is served to carry out the steps specified in the notice.
(3) A person commits an offence if he fails to comply with a notice under this section.
(4) In proceedings against a person for an offence under subsection (3), it is a defence that he had a reasonable excuse for not complying with the notice.
(5) A person who commits an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6) The provisions of Part 3 of Schedule 1 (Appeals) shall apply to a notice served under this section as if it were an improvement notice (omitting paragraphs 12, 13, 17 and 18)."
The noble Lord said: My Lords, the management regulations are detailed and deal with the day to day running of all HMOs, not just licensed HMOs. They are prescribed by central government. Under the Bill any breach would be a criminal offence. Breaches could be trivial. There is already excessive criminalisation of landlords under the Bill.
The current management regulations provide for criminal prosecution in the event of a breach but also allow for the service of a works notice where work is required to remedy a breach. Current government circular advice advises local authorities normally to resort in the first instance to service of a works notice rather than institute criminal proceedings in the event of a breach.
The amendment will allow service of a notice to take steps to remedy a breach, not just to carry out works as applies at present. The proposal contained in this suggested new clause would retain and improve the existing alternative of serving a notice in the event of a breach. Failure to comply with the notice would be a criminal offence. In serious cases the local authority could prosecute immediately. Serving a notice is not intended to be a precondition if there is a serious breach. Tenants are therefore protected. Indeed, the existence of a notice procedure will enable local authorities to take action to get the problem dealt with much more quickly, rather than just prosecuting. The notice procedure provides a half way house so that one does not have to resort immediately to criminal proceedings in less serious cases. I beg to move.
My Lords, I hope that I can satisfy the noble Lord. I understand the point he makes. I must say that, although I am not the daytime Minister with responsibility for this matter, I am not aware that we are receiving a large number of complaints from landlords about the Bill in the way that the noble Lord has just implied.
The amendment proposes that a local authority enforcing the management regulations can issue a notice specifying works to remedy physical defects in the condition of a house if the property was defective in consequence of neglect, to comply with the requirements imposed by the management regulations under Clause 217. A similar amendment was tabled and debated in Committee and I pointed out then that the amendment misrepresented the purpose of the management regulations, which is to set basic management duties for HMO managers. The physical conditions of all properties, including HMOs, and housing conditions that pose a risk to the health and safety of occupants must be pursued by the powers provided under Part 1 of the Bill. We have always stressed that it is not the Government's intention to duplicate powers provided under Part 1 with management regulations powers. We do not wish it to be onerous for landlords. Government Amendment No. 223 clarifies that management regulations may impose duties relating to repair, maintenance, cleanliness and good order on managers. This would serve the purpose of complementing the Part 1 powers by ensuring that managers are aware of their duties in taking care of situations that could develop into potential hazards. That should not be confused with the amendment, which seeks to duplicate powers available under Part 1 to combat hazards. I am happy to come back on this matter. The point has been well made that it is not our intention to duplicate the powers provided under Part 1, which is specific and applies to all properties.My Lords, I thank the Minister for that reply. As is the case with several other amendments, we shall analyse it again. I take his point about not wanting to duplicate Part 1. We shall see whether we need to return to this matter again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 114 [ General effect of final management orders: leases and licences granted by authority]:
moved Amendment NO.98:
Page 82, line 24, leave out "and in" and insert—
"except to the extent that any of those rights or remedies would prevent the local housing authority from exercising their power under section 112(3)(c).
( ) In"
On Question, amendment agreed to.
Clause 115 [ Management scheme and accounts]:
moved Amendments Nos. 99 to 103:
Page 82, line 47, at end insert—
"(ca) the amount of any compensation that is payable to a third party by virtue of a decision of the authority under section (Compensation) in respect of any interference in consequence of the final management order with the rights of that person;
(cb) provision as to the payment of any such compensation;"
Page 83, line 3, leave out "relevant expenditure;" and insert"—
- "( ) relevant expenditure, and
- ( ) any amounts of compensation payable as mentioned in paragraph (ca);"
Page 83, leave out line 7 and insert—
- "( ) relevant expenditure, and
- ( ) any amounts of compensation payable as mentioned in paragraph (ca);
- ( ) provision as to the manner in which the authority are to pay, on the termination of the final management order, any outstanding balance of compensation payable to a third party."
Page 83, line 18, after "meet" insert "—
(i)"
Page 83, line 19, after "order" insert ", and
On Question, amendments agreed to.
Clause 116 [ Enforcement of management scheme by relevant landlord]:
moved Amendments Nos. 104 to 106:
Page 84, line 11, leave out "A relevant landlord" and insert "An affected person"
Page 84, line 25, leave out "a relevant landlord" and insert ''an affected person"
Page 84, line 27, leave out subsection (4) and insert—
"(4) In this section "affected person" means(a) a relevant landlord (within the meaning of section 115), and (b) any third party to whom compensation is payable by virtue of a decision of the authority under section (Compensation)."
On Question, amendments agreed to.
Clause 118 [ Revocation of final management orders]:
moved Amendment No. 107:
Page 85, line 28, after "any" insert "other"
On Question, amendment agreed to.
Schedule 6 [ Management orders: procedure and appeals]:
moved Amendments Nos. 108 to 111:
Page 219, line 34, at end insert—
"(aa) the decision of the authority as to whether to pay compensation to any third party,
(ab) the amount of any such compensation to be paid,"
Page 219, line 35, leave out "right" and insert "rights"
Page 219, line 37, leave out "an" and insert "any such"
Page 226, line 4, at end insert—
"Right to appeal against decision in respect of compensation payable to third parties
31A (1) This paragraph applies where a local housing authority have made a decision under section ( Compensation) as to whether compensation should be paid to a third party in respect of any interference with his rights in consequence of an interim or final management order.
(2) The third party may appeal to a residential property tribunal against—
Time Limits For Appeals Under Paragraph 31 A
31 B (1) This paragraph applies in relation to an appeal under paragraph 31A against a decision of a local housing authority not to pay compensation to a third party or as to the amount of compensation to be paid.
(2) Any such appeal must be made within the period of 28 days beginning with the date the authority notifies the third party under section ( Compensation)(2).
(3) A residential property tribunal may allow an appeal to be made to it after the end of the period mentioned in sub-paragraph (2) if it is satisfied that there is good reason for the failure to appeal before the end of that period (and for any delay since then in applying for permission to appeal out of time).
Powers of residential property tribunal on appeal under paragraph 31A
31C (1) This paragraph applies in relation to an appeal under paragraph 31A against a decision of a local housing authority not to pay compensation to a third party or as to the amount of compensation to be paid.
(1) The appeal—
(2) The tribunal may confirm, reverse or vary the decision of the local housing authority.
(3) Where the tribunal reverses or varies a decision of the authority in respect of a final management order, it must make an order varying the management scheme contained in the final management order accordingly."
On Question, amendments agreed to.
Clause 122 [ Effect of management orders: furniture]:
moved Amendment No. 112:
Page 88, line 14, leave out subsection (1).
The noble Baroness said: My Lords, we return to the unpalatable proposal in the Bill that furniture should be seized and kept by the local authority and used as payment under management orders. This part of the Bill is difficult. I asked the Minister in Committee a question that he could not answer: what would happen where the furniture in question was owned by a third party—for example, a TV or video hire company, or even a suite or set of chairs that were either rented or on hire purchase? Will the Minister give us more information about that? I should be grateful if he could deal with the question of hire purchase. I beg to move.
My Lords, I will take advice on that point, but, frankly, the goods and chattels should not he in dispute. They are owned either by the landlord or by the tenant; alternatively, if they are owned by a third party, they are still not owned by the landlord. Goods on hire purchase remain the property of the person who owns the goods—that is, the retail company that is renting them out—so I suspect that they could not be affected. Anyway, Clause 122 does not permit a local authority to seize goods within a property that belong to the landlord or any other person, meaning those goods belonging to a third party or on hire purchase. The clause relates only to furniture and chattels that are provided for the use of tenants under the terms of their tenancy agreements, and one assumes there will be an inventory, and provides that only once an order is in force is the furniture vested in the local authority. Indeed, the landlord is free at any time to request that the furniture be returned to him, and the local authority can renounce its right to possession of the furniture on receipt of the request. Nothing would happen to a third party's furniture, because there is no transfer of ownership. I hope that is clear and that the noble Baroness is satisfied.
My Lords, I thank the Minister for that helpful reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 113 not moved.]
moved Amendment No. 114:
After Clause 123, insert the following new clause—
"Compensation
(1) If a third party requests them to do so at any time, the local housing authority must consider whether an amount by way of compensation should be paid to him in respect of any interference with his rights in consequence of an interim or final management order.
(2) The authority must notify the third party of their decision as soon as practicable.
(3) Where the local housing authority decide under subsection (1) that compensation ought to be paid to a third party, they must vary the management scheme contained in the order so as to specify the amount of the compensation to be paid and to make provision as to its payment."
On Question, amendment agreed to.
Clause 124 [ Termination of management orders: financial arrangements]:
moved Amendments Nos. 115 to 117:
Page 89, line 7, leave out from "of" to end of line 12 and insert—
the authority must, as soon as practicable after the termination date, pay the balance to such relevant landlord, or to such relevant landlords in such proportions, as they consider appropriate."
Page 89, line 15, leave out from "of" to end of line 19 and insert—
the difference is recoverable by the authority from such relevant landlord, or such relevant landlords in such proportions, as they consider appropriate."
Page 89, line 21, after "to" insert—
"(a) a third party, or
(b)"
On Question, amendments agreed to.
Schedule 7 [ Further provisions regarding empty dwelling management orders]:
moved Amendment No. 118:
Page 246, line 6, at end insert—
"EDMOS: DUTY TO OBTAIN BEST RENT OR RENT FOR CONSIDERATION
(1) Subject to sub-paragraph (2), any right or interest created by the authority under paragraph 2(c) or 10(3)(c) shall be granted at the best rent or licence fee as is reasonably obtainable in the circumstances.
(2) If the authority considers it appropriate to create an interest or right at less than the best rent or licence fee reasonably obtainable in the circumstances, they may do so but (in addition to the rent or licence fee actually payable by the occupier of the dwelling) they shall pay to the relevant proprietor the difference between the rent or licence fee actually payable to the authority and the rent or licence fee which would be otherwise payable by virtue of sub-paragraph (1).
(3) If the relevant proprietor considers that the local housing authority has created an interest or right otherwise than as is required by sub-paragraph (1), he may apply to the authority for a determination to that effect and the authority shall either determine that the dwelling is the subject of a right or licence which complies with sub-paragraph (1), or if not the amount which is to be paid to the relevant proprietor under sub-paragraph (2).
The noble Baroness said: My Lords, given that we are effectively at Committee stage with regard to the section on empty dwelling management orders, as they were only introduced at the last stage, I hope the Minister will allow me a bit of leeway with these amendments, which are designed to probe the particular aspect of EDMOs relating to rent.
It is argued that there should be a specific obligation on the authority to obtain the best rent reasonably obtainable when letting or licensing a dwelling. There is currently no such obligation. There is an issue as to whether the authority will be letting to council tenants—that is, operating as a social landlord—or operating in the private sector. The schedule suggests the latter. Will the Minister tell us whether these EDMOs will be operated by a social landlord, or whether the local authority will expect them to be let within the private sector? Whichever way this is going, but particularly if they were to be let within the private sector, there is no obligation on the authority to obtain the best rent, and it is our view that there should be.
This is particularly relevant if the local authority carries out significant works prior to letting. One of the reasons why a property may be taken into ownership as an EDMO is that it has been lying empty and becoming derelict. Surely by securing the market rate for any property subsequently let out under this scheme, a local authority would be able to channel funds back into any outlay, thereby reducing the cost pressures of taking over these properties.
Our amendment specifies that a local authority is only under an obligation to obtain the best rent where it is "reasonably obtainable in the circumstances". That allows authorities with properties in areas of low demand to tailor their expectations of the rent that should be received accordingly, and would cover the areas in the north, mentioned by the Minister at the last stage, where there are large areas of terraced property that is empty for no good reason, and would be taken by the local authority to be let as a social landlord.
Will any further guidelines be issued to local authorities regarding whom they should allow to take over the properties subject to EDMOs, or will it be left entirely to the discretion of the relevant local authority?
Amendment No. 118 would place on an authority a duty to obtain the best possible rent. Amendment No. 119 would effectively create an appeal system whereby the owner of a property that was subject to an EDMO could appeal to the residential property tribunal in circumstances where the authority was clearly not obtaining the best rent possible.
I stress that these amendments are probing, even at this stage, and I hope that the Minister will be able to respond to them in that context. I beg to move.
7.15 p.m.
My Lords, I can respond in wholly positive ways to the points that the noble Baroness has made. First, the amendments are not necessary. That is good news, as I shall explain. For a final empty dwelling management order—I refuse to use the acronyms—the local authority must set out how it intends to manage the dwelling in a management scheme in accordance with paragraph 13 of Schedule 7.
Paragraph 13(3)(c) requires the authority to include details ofwhile paragraph 13(3)(d) requires details of"the … rent … the dwelling might … be expected to fetch on the open market",
Where the amount of the rent payable is less than the open market rent, the management scheme must account for the difference. Paragraph 13(3)(g) provides that the local authority may charge a rent that is less than the open market rent, but it must make up any shortfall out of its own resources. For an interim empty dwelling management order, there is no requirement to set out a management scheme. However, because the local authority cannot grant a tenancy without the consent of the relevant proprietor, it would have to secure the proprietor's agreement regarding the management of the dwelling, including any rent level—in other words, the proprietor has to approve the new tenant. Paragraph 26 of Schedule 7 sets out the rights of appeal to the residential property tribunal in relation to empty dwelling management orders. There is a right of appeal against the terms of the final empty dwelling management order, including the terms of a management scheme, and there is a right of appeal against the terms of an interim empty dwelling management order. We do not consider that Amendment No. 119 would add anything useful to those appeal rights."the … rent … the authority will seek to obtain".
My Lords, I am never minded to be totally satisfied until I have had a chance to look at what has been said, but the Minister's reply certainly goes a long way towards meeting our concerns.
Will the Minister be kind enough to go back one step? If the local authority has to have the approval of the proprietor, will the proprietor be able to object to the local authority passing the property to a registered social landlord, for example to rent out to somebody on the waiting list or elsewhere, and insist that the property is rented in the private sector?My Lords, as far as I can see, the proprietor has a veto over the tenant. The management order might contain something about the management of the property to an RSL, but my understanding is that the actual tenancy has to be approved by the proprietor.
I thank the Minister for his response to those amendments. I beg leave to withdraw.
Amendment, by leave, withdrawn.
[ Amendment No. 119 not moved.]
Clause 128 [ Making of interim EDMOs]:
moved Amendment No. 120:
Page 93, line 33, at end insert ", and
(c) to give him a reasonable opportunity to make representations as to why an interim EDMO should not be made."
The noble Baroness said: My Lords, the EDMO is a considerable interference with the property owner's rights. Before such an order is made, the relevant person should be given the opportunity to make representations as to why the order should not be made, which may bring to the local housing authority's attention the reasons why the order should not be pursued at a particular moment. The purpose of the preliminary notice is to ascertain what steps the recipient is going to take. He may not want to do so for perfectly good reasons, and he should be given the chance to explain these to a local authority, so that they can be properly considered. For example, there might be plans to convert the dwelling to non-residential accommodation, and there must therefore be a period allowed to the relevant proprietor, and a chance given, to inform the authority of the reasons why an order should not be made in circumstances such as these. I beg to move.
My Lords, I may come back on this. I do not get the noble Baroness's point about non-residential use. The idea of bringing these empty dwellings into use is to provide homes for people, so I am not quite sure about non-residential use.
My Lords, as we understand it, a property that has been empty for some time is a residential property none the less. But there is nothing to stop an owner putting in a planning application to change its use. It might be unusual but it could happen. In a two-storey property, for example, the owner might want to change the bottom storey into a shop. That was my drift. It is possible that an owner or proprietor might want an opportunity to put such an application forward.
My Lords, we are talking about an owner who has left a place empty and probably derelict for years, depriving people of homes, and suddenly wants to do something with it. The whole idea of this process is to get the owner to do something with it. If the owner is given a wake-up call, an empty dwelling management order may not be necessary.
Clause l28(3)(b) requires that the local authority must ascertain what steps, if any, the relevant proprietor is taking or intends to take to secure occupation of the dwelling. Clause 128(4) requires that the local authority must take into account the rights of the relevant proprietor—that is right, because the ownership is not transferring. In addition, the residential property tribunal must be satisfied that the local authority has complied with these requirements and may refuse to authorise the making of an order if it considers that the local authority has not done so. Taken together—this is about rights of appeal—it is inherent in the existing clause that the relevant proprietor will be given an opportunity to set out reasons why the dwelling should not be subject to an interim empty dwelling management order. If it is because they want to do something with it, they should get it occupied and then it will not be empty. That is good news for everybody.My Lords, I am grateful for the Minister's reply, which answers my questions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 121:
Page 93, line 36, after "rights" insert ", wishes and intentions"
The noble Baroness said: My Lords, it is our view that the residential property tribunal should not just consider the rights of the relevant proprietor when deciding whether to give authorisation for an order to be made but should also take account of the wishes of that person and what they intend to do in relation to the property. This order is a form of expropriation and a full balancing act needs to be carried out. By confining this to a person's rights, an unnecessary restriction is placed on the matters which the property tribunal should take into account. That is the purpose of the amendment—in fact, I think the Minister may have answered it last time. I beg to move.
My Lords, if I have answered this, I will sit down. I object to the word "expropriation", because it is a misreading of what we are attempting to do. The ownership of the properties will not change, and I always take expropriation to mean that. We are talking about empty dwellings.
If the relevant proprietor has expressed an intention to do something that would ultimately secure occupation of the dwelling, the local authority would not be inclined to pursue the matter. If it did, the residential property tribunal would never authorise it. If the relevant proprietor simply expressed an intention to keep the dwelling unoccupied, the local authority would be quite within its rights to make the order, all other things being equal. So I cannot really see that the amendment would add anything useful to the wording in Clause 128(4). The amendment is linked to Amendments Nos. 128 and 136, which we shall come to shortly.My Lords, once again, this was almost covered in the previous response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 122:
Page 93, line 38, leave out subsection (5).
The noble Lord said: My Lords, as the Bill stands, a local housing authority is expressly authorised to make an interim empty dwelling management order even though there might be a pending appeal against the order of the RPT to the Lands Tribunal.
It is important that the full appeal process should be exhausted before an EDMO is made. There may, for example, be an important point of law involved. In order to appeal, permission must be given by either the RPT or the Lands Tribunal. This is a significant safeguard against the possible abuse of the appeal procedure. The order should not come into force until the end of the appeal process. It is unlikely that there will be much urgency to override the full appeal process. I beg to move.
My Lords, Amendment No. 122 would remove subsection (5) of Clause 128. This provides that the interim empty dwelling management order may be made despite any pending appeal to the Lands Tribunal against the decision of the residential property tribunal to authorise the making of the order. We see no good reason why an interim empty dwelling management order should not come into operation as soon as it is authorised.
The amendment amounts to a charter to delay even further the bringing back into use of a property which will already have been unoccupied for at least six months, and probably a good deal longer. I ask colleagues to remember that while an interim empty dwelling management order is in force, the local authority cannot grant any right of occupation unless the relevant proprietor consents. No final empty dwelling management order can come into effect until either the relevant proprietor agrees the management scheme or that scheme has been determined by the residential property tribunal. So the relevant proprietor's interests are hardly affected by the coming into effect of the empty dwelling management order. The residential property tribunal will have the power to order a stay on any order authorising an interim empty dwelling management order in a case where there is genuine merit to an appeal. There are powers in Clause 213 to enable this to happen. If an appeal to the Lands Tribunal is subsequently made, it would be within the jurisdiction of the Lands Tribunal to revoke the order if that is the decision of the tribunal.My Lords, I was not wanting to delay appeals but to make certain that there was fairness and that the proper process took place. Again, I shall read what the Minister has said, and if we need to come back to it, we will. I thank him for his reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 123:
Page 94, line 10, at end insert—
"( ) in paragraph 7(6)—(i) paragraphs (aa) and (ab) do not apply, and (ii) paragraph (a) is to be read as referring instead to Part 4 of Schedule 7:"
On Question, amendment agreed to.
Clause 129 [ Authorisation to make interim EDMOs]:
moved Amendment No. 124:
Page 94, line 24, leave out "the prescribed period of time" and insert "6 months or such longer period as may be prescribed"
The noble Lord said: My Lords, Clause 129 permits a residential property tribunal to authorise the making of an interim empty dwelling management order if it is satisfied that the dwelling has been occupied for a period of time prescribed in regulations. We will consult about what time period is appropriate to be specified in the regulations, but are certain that it will be a minimum of six months.
The Delegated Powers and Regulatory Reform Committee recommends in its 28th report that the regulations should be subject to the affirmative route. The reason was that in its view, the nature of empty dwelling management orders would be radically changed if the prescribed period were to be specified as very short.
This amendment will define the prescribed period as being at least six months or such longer period as may be prescribed by order of the appropriate national authority. Setting out on the face of the Bill a requirement that a dwelling must be unoccupied for a minimum period of six months before an interim empty dwelling management order can be approved addresses the committee's central concern. It retains flexibility to increase this period if the outcome of our consultations is that a longer period would be appropriate. But specifying a longer period would not alter the fundamental nature of empty dwelling management orders so the negative route is, in our judgment, correct.
I shall briefly address the other amendments in the group. Amendment Nos. 127, 132 and 133 all relate to matters that must be demonstrated by a local authority before a residential property tribunal can authorise an application to make an interim empty dwelling management order. All of the matters to which the amendments relate are to be the subject of secondary legislation. They are matters on which we intend to consult in detail before making regulations. I am happy to give an undertaking that we will consider the points made in drafting the actual wording in the regulations. I beg to move.
My Lords, I shall speak to Amendments Nos. 127, 132 and 133, which have been grouped with Amendment No. 124. I listened to what the Minister said about them.
When we debated the empty dwellings management orders in Committee, I congratulated the Government on them. I declare an interest as patron of the Empty Homes Agency. Much play was made of the fact that a lot of work would be done voluntarily, involving a lot of persuasion, and that an EDMO would be the last resort. However, there is no mention in the Bill of the voluntary aspect. Amendment No. 127 would incorporate into the Bill the idea that much of the work would be voluntary; that is, local authorities working with people to persuade them to do things, with an EDMO being the last resort. That is the purpose of the amendment. Amendments Nos. 132 and 133 would amend Clause 129(6), which lists grounds on which an owner could avoid an EDMO. Interestingly, paragraph (e) refers to an owner who is "genuinely" trying to sell the property, but paragraphs (c) and (d), which deal with repairs and planning applications, make no reference to genuine attempts. The amendments would tidy up that part of the clause and that is the spirit in which I tabled them.On Question, amendment agreed to.
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.32 p.m.
Moved accordingly, and, on Question, Motion agreed to.
Pornography
7.32 p.m.
rose to ask Her Majesty's Government what steps they are taking, together with international agencies, to shut down websites that give access to violent pornography.
The right reverend Prelate said: My Lords, I am very grateful to the Government for allowing time for this Unstarred Question. My concern arises out of the horrific death of the teacher, Jane Longhurst, whose mother lives in the Diocese of Oxford. Noble Lords will remember that Graham Coutts, who was convicted of Jane's murder in February, repeatedly accessed websites that depicted violent sex, and how elements of his action mimicked what he had seen online. Sites mentioned during the trial included Necro Babes, Hanging Bitches and Deathbyasphyxia.
Pornography on the Net is big business. In 2001, there were 74,000 adult websites or 2 per cent of all sites on the Web. It has been estimated that, each day, 20,000 new porn pages are added. They generate profits of more than 1 billion dollars a year, which are expected to rise to some 5 billion dollars a year by 2005. For some, the use of those sites is compulsive. Perhaps 1 per cent of the visitors to sex sites, some 200,000, are "cyber sex compulsive". That is the definition of people who spend more than 11 hours a week visiting sexually orientated areas.
The main problem, of course, relates to child pornography and child abuse images. It has been estimated that 5 million images of child abuse are circulated on the Internet, featuring some 400,000 children. In Britain, as elsewhere, the mere possession of such material is illegal and a number of successful police operations have been designed to tackle the problem. I recognise that dealing with adult sex that may depict violence against women, which is the subject of my Question, is more complex and is not so easily addressed.
In the United Kingdom, the relevant legislation is the Obscene Publications Acts 1959 and 1964 and the Criminal Justice and Public Order Act 1994. That legislation makes it a criminal offence to publish any article whose effect, taken as a whole, is such, in the view of the court, that it tends to "deprave and corrupt" those likely to read, see or hear the matter contained or embodied in it. That material now includes data stored on a computer disk or by other electronic means which is capable of being converted into a photograph. The difficulty is that other countries do not always have a similar law. In a country such as the United States, where, as a result of the First Amendment, freedom of expression is given overriding priority, it is possible for images that are illegal in this country to be put on websites without prosecution. In addition to different laws in different countries, there are of course different sexual mores, so that what might be regarded as unacceptable in one society is tolerated in another. So I recognise all those difficulties, but I know that the Home Secretary believes that something can and should be done by way of international co-operation.
Mrs Longhurst and those working with her inside and outside Parliament have put forward a five-point plan for dealing with this problem: blocking access to some of the material on which Graham Coutts depended; looking again at the relevant legislation to which I have already referred to consider whether the possession of the kind of material that he used could be a criminal offence; better international co-operation; the role of Ofcom in this area; and the way credit card companies might be involved in putting financial pressure on the providers of extreme images.
In a debate on this issue in Westminster Hall on 18 May, a number of helpful points were made in relation to each of the above proposals; for example, encouraging suppliers of personal computers to build in filters from the start in the way that cars are fitted with seatbelts at the point of manufacture; looking at how the Proceeds of Crime Act 2002 might be applicable in this area to stop people benefiting financially from the extreme images on the Internet; using the reserve power in the Communications Act 2003 to regulate, and so on. Ofcom would be very willing to be consulted by the Government about what helpful steps it might take and what might be possible. I hope that the noble Baroness, Lady Howe, will say something more about that. Whatever steps are taken, it is widely recognised that there is no one catch-all solution and that the problem needs to be tackled from a number of different angles.
During the debate to which I have just referred, I was disappointed that the Minister in another place said nothing about international co-operation, perhaps because of lack of time. That is the issue about which I am particularly concerned. The Internet service providers (ISPs) argue that they cannot be expected to vet the tens of thousands of Web pages and millions of messages on their systems. Many providers argue that their position is much closer to that of a post office, acting as a conduit for information, than to that of a publisher. Although there is some truth in that view, the analogy does not mean that nothing can be done. Some things are being done, at least in the area of child abuse images. For example, in June, British Telecom implemented a ban on illegal websites, using a list compiled by the Internet Watch Foundation—the industry's watchdog. The project, known as Clean Feed, means that subscribers to BT's Internet services such as BT Yahoo and BT Internet who attempt to access illegal sites will receive an error message as if the page were unavailable. BT will register the number of attempts, but will not be able to record details of those accessing the sites. However, the Internet Service Providers' Association (ISPA) has expressed some doubts about the effectiveness of this solution and stated that it will prevent only casual browsing of known websites. It will not hinder organised distribution of such images. It will not prevent access to new websites that offer illegal content. In short, preventing access is not a solution to the presence of those websites in the first place. The question is what can be done about the websites themselves.
My particular concern this evening is what international co-operation may be possible. I recognise the difficulties. As the noble Baroness, Lady Scotland, told the House:
"There is no international consensus on what constitutes obscenity, or when the freedom of an adult to have access to obscene or pornographic material should be constrained".—[Official Report, 23/2/04; WA 31.]
But the fact that there is no consensus now on what constitutes obscenity does not mean that it is impossible to arrive at a consensus in the future. Because there is no consensus now on whether an adult should have access to obscene or pornographic material, it does not mean that we should not seek to reach a consensus or strive to implement one.
This evening, I have mentioned other measures to tackle this problem. Some of the five points of the campaigning group are like trying to ward off the tentacles of an octopus. In the end, it is necessary to get at the octopus itself; that is, at the sites themselves. Most of these sites are situated abroad. There is no escaping the need for international co-operation, followed by international action. I know that the Government share this concern and I look forward to hearing what the Minister thinks may be possible and what progress he believes has been made so far.
7.41 p.m.
My Lords, I thank the right reverend Prelate the Bishop of Oxford for initiating the debate this evening. I very much agree with him.
An important issue is that these sites will prevail as long as the mass of people accept that it is difficult, and maybe impossible, to do something about them. Most people would reject that. The technology we now have has provided these websites and I am amazed that similar technology cannot be used to control them. Although this is just a supper debate, it is on an issue that touches a nerve in many parts of Britain today. There are concerns about children and women—and young men, too—and about the use of these websites. It almost seems that one cannot prevent them coming into one's home. If we wait for international law, we will wait for ever. It needs international co-operation. I know that my noble friend Lord Puttnam, who is present, would like to have taken part in this debate. His vast knowledge of this whole area of technology—not of pornography—would have been an admirable contribution to the debate. We must look at this from a different direction. One of the models that we can look at is ICSTIS, the telecoms regulator for the premium rate industry. That is an industry that came about as a result of the deregulation of telecoms. That regulatory body was created not by law but by an agreement with the service providers. I reject the view of the Internet service provider organisations that one cannot do a lot about this. One can do a lot by working together. ICSTIS deals with premium rate services. Some of them come from abroad but immediately they are on UK lines that regulatory body can, and, indeed, does, step in. These services can be provided by telephone, as they originally were, fax, PC—which could be linked to e-mail, Internet or bulletin-boards—mobile phone or interactive digital TV, as allowed by new technology. There are 40,000 services at any one time, costing from 10p a call to £1.50 a minute. It is a sector that is regulated not by law but by consensus between the service providers themselves. The right reverend Prelate mentioned BT's decision earlier this year. ICSTIS has recently introduced a licensing system whereby services have to be legal, decent and honest. Maybe that is the way forward. I do not know. There are specific provisions for forbidding content that is violent, sadistic or cruel. There was a case almost two years ago of a service from Germany that came into the UK and advertised child pornography. In fact, the service did not provide that. It was the come-on to get the public to go on the line. ICSTIS took the service off and fined it £75,000. That kind of emergency intervention, whereby one can take the service off within a matter of hours by the co-operation of the telecoms companies, is what is needed. I find it objectionable and unacceptable for the website providers to say that there is nothing they can do about it because if they came together and said that they will work to do what they can, inroads could be made into what is quite clearly offensive and, more than that, dangerous for many innocent people in Britain. We all have computers on which messages pop up. We just click to get rid of them. If a child is on the computer that does not have a firewall, it is not quite so easy to do that. A lot of material is very offensive. I sense that there is a will in Government to do something. The Minister will cover that when he responds. That is at the heart of this. We could get Ofcom and the service providers together and get a general international consensus. That would not be about the global line of acceptability, because we all have different standards, but the line has to be that if a service is coming into a country and that country finds it offensive then it should be possible to prevent that service going into that country. There are technological ways of doing that. I welcome the debate this evening very much and I hope that the Minister will be able to be helpful. I am not suggesting that he has the answer because this is a very difficult conundrum. But as long as we try and do something about it, we can achieve something. I am not saying that we will be able to eliminate the cases that the right reverend Prelate the Bishop of Oxford mentioned, but these services are growing year on year and I suspect that the British people are almost becoming immune to them. It is like everything else. If there is a drip, drip, drip of violence, then it begins to be acceptable because one is no longer as shocked as one was a year before. It is time for us to see what we can do to stop this kind of service. It is not what the Internet was going to be about. It was about broadening horizons, not doing what some of these services are trying to do.
7.45 p.m.
My Lords, I am very glad indeed to have this opportunity to support the right reverend Prelate the Bishop of Oxford in his bid to press the Government for more action in response to what has been a horrifying growth in the distribution and viewing of violent porn and, particularly, of child abuse images. Clearly, the recent barbaric murder of Jane Longhurst has highlighted the problem of those people who not only have an appetite for watching violent pornography via the Internet but who also go on to act out their abhorrent fantasies in real life. This disturbed group of people may be, and hopefully is, relatively small in number but far too little is known about the long-term wider effects on society of indulging this kind of appetite, especially in a world where the material is all too universally available. By way of an illustration, I go back to the days when flashers were considered to be harmless, if somewhat embarrassing, eccentrics. Yet we all know now that that behaviour was all too often the early sign of far more deviant sexual behaviour.
It is very plain that the Internet has brought unimaginable benefits right across the globe. However, it is the very built-in absence of regulation that has brought the problems that now concern us. Since in today's world every form of communication can now be accessed via the Internet, including—I stress—broadcast programmes, those problems will continue to grow unless we can all globally agree a fundamental, comprehensive and "civil society" approach to what is and is not acceptable. One hopes that that is not quite as impossible a task as it would have seemed only a few years ago. I agree with the noble Baroness that a lot of the technology produced enables restraints to be placed on that kind of material. It is only right to acknowledge that progress has been made. My own preference was that in this country, Ofcom should be given the main responsibility for the whole area. That was not allowed, and that provision is not within the Communications Act 2003. However, we should not forget that Ofcom has an indirect responsibility—that of media education. That can play a very important part in alerting parents and children to what they need to know to defend themselves. Not all is gloom; there have been advances. On the voluntary regulation side, I would really rather praise the Internet Watch Foundation. It is funded by the industry itself, and not everyone agrees with that approach. But it has worked with government, Internet service providers, the police and others and has acted as a catalyst in getting other forms of European activities going. On the European front, there is an organisation called INHOPE, which has the backing of some 17 members. At an international level, many countries are tightening their child pornography codes and their laws—such as Australia, South Africa and Canada, to name but a few. None of that would have been possible without the great advances that have been made on the technical side. A most encouraging sign is the creation of filtering systems, which allow individuals or parents to exercise, if not failsafe then nevertheless considerable, control. We have heard about search engines such as Yahoo, as well. In the UK, Internet service providers can apparently remove sites which break UK law or break their "acceptable use" policy. We can put that against the fact that only quite recently more than 300 MPs signed an Early Day Motion calling for more international action. Changes in the law have helped, too. The Sexual Offences Act 2003 created the important new offence of grooming. Under Section 46 of that Act, the burden of proof has passed from the prosecution to the defendants to prove if they can the necessity for them to download indecent images of children. As the paper, Supplying the Skills for Justice, highlights, enforcement needs specially trained police. Of the 140,000 police officers in the UK, apparently only 1,000 are trained to handle digital evidence and a mere 250 work with computer crime units or have higher level forensic skills. Recently, a major investigation involving some 6,000 UK citizens on suspicion of child pornography offences—Operation Ore—showed up that major resource discrepancy. It was itself the cause of delays of some nine months or so. So we can all agree that more action is needed. I found BT's experience particularly worrying. The official figure for the percentage of reported child pornography hosted in the UK since 1997 had apparently fallen from 18 per cent to less than 1 per cent. That is clearly good news—but then came the bad news. BT reported that over its first few weeks of the new technology, a horrifying 150,000 such attempts had been made and blocked off. There are clearly even darker figures waiting to be uncovered in this distasteful area, as the extent of embedded addiction to what I would call the "drug" of pornographic viewing is revealed. Clearly the Government have a vitally important task ahead, if the aim of the Home Office Internet Task Force on Child Safety, which we would all support—to make the UK the best and safest world for children to use the Internet—is to be effective. My hope goes further than that. I hope that the Minister will be able to reassure your Lordships that far more international as well as national action is on the agenda. The will to enforce decent standards has to be global. However law-abiding most of the developed countries are likely to be, if this distasteful and, as we have heard, hugely lucrative industry can move its operations to a part of the world where few controls exist, the problem is clearly going to continue to grow. As the Minister will know, many of those concerned with the issue had hoped that the subject would be on the agenda of the recent G8 meeting in June. That did not happen. Can we be reassured that these issues still have a very high priority for this Government?7.56 p.m.
My Lords, I, too, thank the right reverend Prelate the Bishop of Oxford for securing this debate on websites with access to violent pornography. He has eloquently outlined the dangers of this pernicious and perverse use of the Internet and the ways in which websites can be shut down, and I support him in this debate. I intend to focus on pornography involving children and accessible on the Internet, where some interventions have taken place.
Interpol and police forces in several western countries continue to co-operate to identify people, mostly men, who use the Internet to distribute child pornography. In that way, some have been arrested. However, as my noble friend Lady Howe said, 6,000 people have been suspected of the crime in this country but not that many have been taken into custody. The production of child pornography involves the abuse and exploitation of children. An image of a child or children involved in explicit sexual activity invariably identifies adults committing a serious crime. Ever images that appear less harmful, such as a photograph of a naked child in a sexually suggestive pose, still involves the exploitation and degradation of a child. In August 2002, the Sentencing Advisory Panel, of which I am a member, published advice to the Court of Appeal on the sentencing of offences involving child pornography. The panel consulted the police, who gave priority to tracing children involved in recently produced material, because they were still at risk and in need of protection from further abuse. In addition, adults suffer continuing shame and distress from the knowledge that indecent images of themselves as children are still in circulation. Much of the child pornography distributed by the Internet depicts children of typically far eastern appearance and does not originate from the United Kingdom. That is, however, by no means always the case, because the availability of handheld video cameras has encouraged the growth of a so-called cottage industry among paedophiles, involving their own children or others, whom they have abused. Evidence exists that child abusers commonly use and are influenced by child pornography. Users of child pornography groom children before abusing them with the intention of having sexual intercourse with those children. People who collect child pornography are therefore a danger to children. People who regularly download child pornography and have been prosecuted are only a very small proportion of the real total, because pornography is easily accessible on the Internet. Pornographic material involving children varies from images depicting nudity or erotic posing with no sexual activity to gross assault and sadism. Her Majesty's Government strengthened protection against sex offenders by reforming the law on sexual offences in the Sexual Offences Act 2003. A new offence of sexual assault was introduced to cover non-penetrative behaviour, carrying a maximum penalty of 10 years' imprisonment. Special protection for children formed part of the new Act. The necessity for these legislative changes became clear on 21 January last year, when the Attorney-General referred to the Court of Appeal three cases of men who sexually interfered with children because he regarded their sentences as unduly lenient. All three defendants had assaulted children. The three Law Lords who heard the appeal agreed that all cases of sexual interference, whether amounting to rape or not, should be considered with guidelines formulated for the sentencing of rape. All three men received prison sentences varying from three to 13 years. There must be many more sexual abusers of children or paedophiles who are at large. They continue to produce and distribute pornography involving children. The Sexual Offences Act 2003 identified offenders against children as the ones to be given the longest prison sentences. But the child victim of a sexual assault is physically and psychologically scarred and damaged for life. Therefore it is clearly preferable that everything should be done to prevent children from being abused by paedophiles. One important step in prevention is to shut down websites that give access to child pornography. If it were possible to do that with child pornography, with international co-operation the same technology could be used to shut down other pornographic websites, especially those with violent pornography.8.1 p.m.
My Lords, I am particularly glad that the right reverend Prelate the Bishop of Oxford has already drawn attention to the impact of pornography on children. He also commended British Telecom. I am delighted to agree with my noble friend Lord Chan in drawing particular attention to pornography involving children.
The making of such material almost always involves some degree of violence and/or deception. It harms people several times over. First, it harms the child when the films, photos or videos are made. Then it depraves and dehumanises those who view them, all the more so if the viewers happen—intentionally or otherwise—to be children or adolescents. A lot of this material is believed to originate in South-East Asia where there are large numbers of extremely vulnerable children and also governments who are not always fully in a position to give their own children the protection they deserve. I therefore ask the Government to give special care and thought to the involvement of children when they are considering how best to prevent violent pornography. I should like to commend British Telecom, because I understand that that company has given a positive lead to all British Internet service providers by using special software which blocks out and more or less excludes material showing child pornography. Have the Government already asked British Internet servers to adopt this practice? If this has not yet been done, will the Government be prepared at least to use compulsory powers and to provide penal sanctions?8.3 p.m.
My Lords, I join other noble Lords who have expressed congratulations to the right reverend Prelate on bringing forward this important subject this evening. I am grateful for the practical suggestions that he made, all of which I agree with, except that Ofcom should have a role in the regulation content. Both he and the noble Baroness, Lady Howe, resuscitated an argument which I think we had at some length during the proceedings on the Communications Bill.
Your Lordships decided that that was not a matter for Ofcom. But I agree with the noble Baroness that ICSTIS has an important role to play and I have listened with care to the proposals that that body has made with regard to voluntary agreements with those who provide the material that goes out, particularly to people using mobile phones. That is an important aspect of the problem in the United Kingdom. As the right reverend Prelate said, this debate is a useful sequel to the debate which was held in Westminster Hall last May, when a number of suggestions were made, but which the Minister who replied—Mr Paul Goggins—did not have adequate time to deal with. I shall ask a few questions that arise out of that debate. It is common ground—it has been expressed this evening—that almost all the sites which offer violent pornography are hosted on foreign servers, and therefore are not committing offences under our law as it now stands. Therefore, although perhaps the Obscene Publications Act needs to he looked at, that would not touch the vast majority of the images coming into this country and which generate the enormous profit of £1 billion a year. I am surprised that it is not more than that considering the number of accesses which we have heard about, even in the short interval during which British Telecom has been able to monitor them. But Operation Ore, which has been referred to, was successful in exposing thousands of people in the UK who had downloaded illegal images from foreign websites, as well as identifying 102 children within this country in need of protection. Chris Hanvey of Barnardo's says that this represents the tip of a large iceberg of abusers and offenders who are not being caught in the UK. In Operation Ore, responses varied considerably between one police force and another, according to the resources available, and partly also according to the degree of co-operation by local IT providers with the force concerned. To get a uniform approach, there would have to be clarification of the circumstances in which service providers may give information to the police where Internet-related offences are suspected but when charges have not yet been made, and there would also need to be a more national approach to this type of crime. Whether that needs a new type of police agency, or whether it could be added to the terms of reference of the National Hi-Tech Crime Unit, is a matter for consideration. Certainly the great majority of local police forces are not well equipped to deal with this type of crime, as we have heard. Operation Ore dealt with a single website, albeit a very large one. The data in relation to that site were collected by the FBI via the credit cards of 140,000 people worldwide—of whom I understood that 7,000 were in the UK, although the figure of 6,000 has been mentioned. It was suggested in another place by my honourable friend Mr Richard Allan, among others, that, as the right reverend Prelate mentioned, much more could be done by the credit card providers to block access to violent pornographic sites. I believe that the credit card providers are willing to co-operate through their "brand image protection programme" wherever they have the power to do so. The problem is that VISA and MasterCard are franchises, and they may not have power to require their licensees to comply with restrictions on the use of cards to access given sites. Is this a question that the Home Office has discussed with credit card providers since May, and has it any methodology for dealing with it? The Home Office Minister Paul Goggins said in reply to a Written Question in another place in June:He undertook to work with them to make that as effective as possible. What progress is being made, and can the Home Office foresee our police having the technology to etect credit card access to the abusive sites by users in the UK, without having to rely on the FBI and the US to do the work for us?"co-ordinated action by the major credit card schemes … can have a major impact on the commercial trade in child abuse images".—[Official Report, Commons, 14/6/04: col. 754W].
The Home Secretary had discussions with the US Assistant Attorney General when he visited the US last spring, and Mr Goggins said that discussions were continuing after that at official level. There are sites hosted in the US which would be illegal anywhere in Europe, and apparently the Americans find it difficult to close down these sites or prosecute them in spite of the Child Pornography Prevention Act 1996, which makes it an offence attracting a mandatory 15 years' imprisonment to produce or distribute images depicting,
"a minor engaging in sexually explicit conduct".
No doubt it would not have been easy for the Government to get the administration to focus on this issue in the run-up to the presidential election, but can the Minister say whether any progress is being made in the conversations with the US, considering that the US is so much a key to an internationally effective solution to the problem?
The Oxford Internet Institute is planning a major international conference in September 2005 on the problems of international co-operation on Internet-based crime. I hope that the Government will come forward with some effective ideas that can be fed into that meeting.
Next year, Britain will occupy the presidency of both the European Union and the G8. This would be an excellent opportunity to develop a more robust European approach and to persuade the US and other OECD countries to join us. Although, as the noble Baroness, Lady Scotland, has pointed out—and this has been quoted already—there is no international consensus on what constitutes obscenity, there is agreement at the minimum that images of children involved in sexual acts are totally unacceptable, and there is a European Union framework decision on combating the sexual exploitation of children and child pornography, as well as a Council of Europe cybercrime convention which aims at common definitions and minimum standards for offences concerning child abuse images on computers.
Can we not build on those foundations, and attempt to secure a worldwide prohibition on the portrayal of violent sex on the Internet? Without this, the producers and distributors of this material can always move to a more lax jurisdiction, as they do now, and co-operation between prosecution agencies in different countries will always be harder to achieve.
8.12 p.m.
My Lords, the pornography industry has many distasteful and horrifying aspects that we would rather forget, but however shocking and appalling it is, it is our duty to tackle these issues head-on. Thus, I welcome the spotlight turned once again to the serious problem of violent pornography. I thank the right reverend Prelate the Bishop of Oxford for initiating this debate and noble Lords who have taken part in it this evening.
The right reverend Prelate referred to the dreadful case of Jane Longhurst. Many noble Lords will have seen articles by her sister, Sue Barnett. Jane's murder was aptly summed up by the Daily Mail as,
"unequally disturbing in that it could have happened only in this high-tech age, committed by someone whose murderous fantasies were fuelled by appalling images freely available on the internet".
As we know, Jane's killer, Graham Coutts, was addicted to violent pornography, in particular sites dedicated to necrophilia and sexual asphyxiation. The day before her death he spent hours trawling through dozens of appalling images of women being raped, strangled and hanged.
In the aftermath of her sister's tragic death, Sue Barnett has set up a trust in her sister's name, to help people to educate and protect themselves from violent pornography sites as well as to call for their outright ban. Eight out of 10 computers have no Internet filtering software installed and 48 per cent of children give out personal information online. With such shocking statistics at our fingertips I am sure that your Lordships will join me in wholeheartedly supporting this cause.
I support the call for the Government and Internet service providers to take action to block access to such sites and hope that the Minister may be able to shed some light on progress in that matter in particular when he replies. Have Her Majesty's Government ever considered making it legally binding for all computers to have filtering software installed?
One of the most difficult aspects of tackling the problem is the now-accepted finding that the Internet opens up a world of sharing experiences; of making people feel comfortable and confident that what they are doing and enjoying—and in many cases becoming addicted to—is okay. For many it begins with an initial search for a little excitement; a search that then extends beyond a little excitement into more and greater degrees of obscenity in its worst forms. We know that there are sites that actually teach people how to become "good paedophiles". There are probably similar sites to teach people how to ensnare mature victims, both men and women.
We must do all in our power to confront what appears to be a growing, ugly and despicable trend in our so-called civilised world. We all welcomed the tighter controls and moves against the sexual grooming of children in the Sexual Offences Bill last year. The many debates during the Bill's progress made several points hit home. Pornography is an old crime with new tools; new tools that mean it can reach a wider audience much faster and easier than it used to. It is common knowledge now that it is yet another money-making industry used by criminals and terrorists alike.
Will the Minister inform the House what active steps Her Majesty's Government have taken since the immediate aftermath of Jane's death? Will he inform the House in detail which government departments are involved in trying to stop violent pornography sites; and assure us that cross-departmental co-operation is occurring? I join the noble Lord, Lord Avebury, in asking the Minister what progress has been made with regard to credit card access to abusive sites.
While we welcomed the formation of the National High-Tech Crime Unit in April 2001, it recognises on its website that it is legally limited as to whom it can take action against. There remains a serious problem of offensive websites based in other countries. Will the Minister inform the House—as other noble Lords have requested—what meetings the Government have had with other countries regarding better international co-operation in shutting down such operations?
Are there any official memorandums of understanding or other legal or voluntary agreements within Europe or beyond on these matters? If so, what are they and what are their targets? If not, will Her Majesty's Government be making moves to bring one forward? We know that in the Westminster Hall debate on 18 May this year the subject was discussed in reference to meetings between the Home Secretary and political representatives in the United States. In addition, we understood from that debate that the Government were considering the scope for a wider initiative to influence how the issue is dealt with by other countries and for specially targeting those questions at the G8 summit. Perhaps the Minister can provide us with an update: is any action—as opposed to talks—proposed in the pipeline? We have already heard from the noble Baroness, Lady Howe, that sadly the G8 did not discuss the matter in June this year.
I entirely agree with the right reverend Prelate the Bishop of Oxford that co-operation is key and we must seek consensus. Inevitably a balance must be drawn between protecting children and other individuals on the one hand and letting adults make their own viewing decisions within the boundaries of the law.
That said, it is not necessarily adults who are accessing those sites. The next generation have proved themselves extremely adept in their use of the Internet to their advantage. In any event, violent pornography such as that related to Jane Longhurst's murder falls well beyond the legal remit and there is more we can do to address that horrific problem.
I am concerned regarding the paucity of resources targeting the problem. I understand that there are only 240 computer forensic officers devoted to tackling this growing problem and most of them are focused on Operation Ore and child pornography. That is no bad thing; but worse than that, I understand that there are only three police officers in the entire Metropolitan Police area devoted to tackling non-child pornography. Are the Government prepared to put more resources into that vital area?
While I would be the first to defend our civil liberties, freedom of speech and expression, violent pornography on the Internet exceeds all boundaries of what we in our society should be prepared to live with. I agree with the noble Baroness, Lady Dean, that ICSTIS is doing some great work, as is the Internet Watch Foundation. However, unfortunately the technology of abuse remains ahead of the law. The sentiment throughout the debate of tackling those problems head-on can be the only way forward. Perhaps we should initiate further debate so that we can hear from other noble Lords, including the noble Lord, Lord Puttnam, who has a wealth of knowledge in this area to contribute.
8.19 p.m.
My Lords, I, too, express my gratitude to the right reverend Prelate the Bishop of Oxford for instigating this debate. Sadly, it is an issue with which regrettably I am all too familiar being a Brighton resident and following the tragic murder of Jane Longhurst who was very much a part of the Brighton community. I pay tribute not only to the dignity of her parents and sister for the way in which they have campaigned on the issue following her death but also to the MPs, David Lepper and Martin Salter, who in different ways have pressed for more and urgent action regarding this abuse.
Following the death of Jane Longhurst the Government have given very active consideration to what more can be done in this field. The implications of her trial have focused our minds tremendously. We are now reconsidering what can be done regarding websites that feature necrophilia and sexual violence. We are considering how we can proceed in relation to strengthening the law in that area. The Government are obviously very concerned about the availability of violent or extreme pornography, and the influence that this sort of material could have on our children. The availability of such material on the Internet, accessible directly from our homes wherever we live, makes this an issue that affects all countries. As the right reverend Prelate and all other contributors to this evening's valuable debate have rightly said, it is a global and international problem. Attempting to limit illegal material that is available via the Internet is an issue which can be tackled on many fronts. These present different, difficult but also interlocking challenges. However, they may also offer some opportunities for tackling the problem. We need to consider all of them in our attempts to reduce the availability of illegal material. First, it is important that the Government seek to consider combating this problem domestically, and I shall go on to outline what our approach has been to this issue within our own jurisdiction. However, the Internet is, as we all know, a very effective communications medium and allows millions of people to access and publish vast quantities of information. There are many hundreds of thousands of websites and news groups that purport to contain violent pornography of various types. Most sites require a small credit card payment to gain access and the registration and hosting of sites is spread around the world with many centres of activity, particularly in the United States, Russia and China. Dealing with this issue internationally presents many challenges, not least because there are no common definitions or agreed priorities for criminalisation of adult pornography internationally. Indeed, that is perhaps the root and the cause of the problem. However, there is much that can be done in respect of seeking to deal with this issue internationally on a variety of fronts which I shall go on to outline. The first consideration in any attempt to deal effectively with such material, whatever medium is used to convey it, is to consider if it is illegal. At present the obscenity laws (the Obscene Publications Acts 1959 and 1964) cover the publication, distribution, showing, giving, et cetera, and possession for gain, of material that has a tendency to "deprave or corrupt" those likely to read, see or hear it. This is admittedly a difficult test to apply, and very different from the way we deal with indecent photographs of children, which are relatively easy to identify. However, the purpose of the obscenity Acts is to tackle the spread of the material and the possible corruption of individuals by it, rather than the protection of children. That is why the obscenity Acts do not penalise simple possession of any material. They leave the test of what is obscene ultimately to the jury, which ensures that juries can reflect the moral standards of their day. The flexibility of the test is part of its strength. It remains the case that it is illegal to publish some extreme images under the Obscene Publications Act 1959 whether via the Internet (websites) or other means. The Government are currently considering whether the law relating to pornographic material featuring violence and sexual abuse should be strengthened. The Government and law enforcement agencies have developed excellent working relationships with our domestic Internet service providers in recent years. This means that where it is found that a United Kingdom Internet service provider is hosting illegal material, there is an excellent record of co-operation from the Internet industry in removing that material. In addition, all Internet service providers have a customer relationship established via an acceptable use policy with those who use their services to host material. If that material is not illegal, but is considered to be of an objectionable nature by the company, again there are established procedures in place by which such material can be removed. The Government are currently working with the Internet industry to further promote good practice within such acceptable use policies. The noble Baroness, Lady Howe, referred to the important work of the Internet Watch Foundation in the UK in providing a hotline for the reporting of child abuse images. She rightly paid fulsome tribute to its work. The IWF decides whether the reported website carries potentially illegal material, and passes details of illegal material to the relevant law enforcement agencies to take action. When the site is hosted within the UK, law enforcement will seek its removal with the relevant Internet service provider. That procedure has been extremely successful in practice. In 2003, less than 1 per cent of illegal material identified by the Internet Watch Foundation was hosted in the UK. In respect of adult pornography, we are confident in the ability of the IWF to identify material that is potentially in breach of the Obscene Publications Act 1959 in response to complaints, and to refer to the police any that is hosted in the UK. We are told by the IWF and UK law enforcement that hardly any extreme material that might he illegal in the UK if distributed to an adult is hosted within the UK. As already outlined, we have well established procedures and industry co-operation for seeking its removal. That may mean that the legislative environment, action taken by law enforcement agencies and industry co-operation in the UK have all contributed towards such material being hosted elsewhere. That makes it very difficult for the producers and distributors to be dealt with unless they also break local laws in the country where they operate. There is much being done at present and which can be done in the future to combat extreme and violent pornographic websites, wherever they are hosted. It is important to tackle the problem on a variety of fronts. For example, dealing with the producers and distributors of material is much more effective than simply taking down one website. One role undertaken by the Internet Watch Foundation and police units, such as the National Hi-Tech Crime Unit, is passing on the details of sites that are hosted outside the UK to other hotlines and law enforcement bodies in the hosting countries. They will consider the site under their own legislation and take action where appropriate. Law enforcement agencies have well-established relationships with their counterparts in other countries to share information and work together on investigations. In particular Interpol, Europol and the G8 contact network all facilitate that working. However, it is important to recognise that this is an area on which there is no clear international consensus on what, if anything, should be done. Different countries have taken different approaches to violent pornography and what is legal to possess or distribute within their own jurisdiction. There are no common definitions or agreed priorities for criminalisation among adult pornography. Even with images of child abuse, there are different approaches, although with child abuse images there is a clearly agreed international consensus to tackle the issue. The G8 countries have agreed a strategy to protect children from sexual exploitation on the Internet. It currently focuses on building a shared international database of images to speed the identification of victims and offenders to prevent further harm, and on targeting those who make a profit from trading in child abuse images. The strategy also seeks to promote mechanisms for sharing information and best practice internationally to further protect children from exploitation on-line. We continue to work with colleagues around the world, particularly the US, on what more can be done to close down those violent pornography sites. The Home Secretary has made it clear that we shall work with our G8 partners to see what more can be done to deal effectively with violent pornography. Other work has focused on preventing payment mechanisms being used to purchase illegal material. The Association for Payment Clearing Services (APACS), the UK trade association for payments, the Internet Watch Foundation, and the Children's Charities' Coalition for Internet Safety, have all worked actively to prevent payment mechanisms being used for purchasing child abuse images. The arrangements now in place have made it possible for law enforcement agencies to become more effective in investigating, detecting and taking action against the sites that use specific payment services to sell child abuse images. The relevant card companies will also seek to trace the banks and the billing companies involved in processing payments and will cease the use of their cards. Units such as the National Hi-Tech Crime Unit, through its industry outreach programme, have been especially successful in working closely with industry on intelligence and designing out hi-tech crime. Again, while much of the focus here has been on child abuse images, given the clear international consensus to tackle this problem, action has been taken against illegal pornographic sites more generally, and we continue to see how the lessons learnt from dealing with child abuse images can apply more widely to other illegal images. In addition, the Government continue to work with the Internet industry and others to see what can be done in various ways to reduce access to illegal material or that which might be deemed to be inappropriate by the user. Much can be done by parents to seek to protect their children from discovering violent pornographic material. Chief among that is the need for responsible parenting, providing good advice and ensuring that children feel able to talk about material found which upsets them. Also available is a variety of software which can control content and allow parents to monitor their children's activity. Through the work of the Task Force on Child Protection on the Internet, the Government are considering ways in which the Internet can he made a safer place for children. They have engaged in several public awareness campaigns. They are also currently working with industry to see whether filtering and monitoring software products can be evaluated against an objective standard and impartial advice provided to parents. They are working with search engine companies to seek ways in which search can be made a safer experience for our children. We are also considering what technical solutions can be developed to block illegal images. In closing, I want to deal with an issue relating to extreme and pornographic websites which presents us with a variety of challenges. Our resolution to deal with this issue domestically is not enough in itself. The development of the Internet has made a difference. In 1959, the supply of obscene material was far more easily cut off. The advent of the Internet means that we now have to seek to influence other countries whose legislation, policy or practice in this area may well be very different from our own. The Government continue to work in a variety of international fora, seeking to discover how we can influence others and take other positive action. As I highlighted, action needs to be taken on a variety of fronts, and the actions of law enforcement, industry and others in seeking to disrupt the mechanisms which support and facilitate this trade continues to play an important role in this work. This is a continuing problem, and we must continue to seek new approaches as the problem evolves. Specific questions were asked but I do not have time to answer them all. However, I give a commitment this evening to write to noble Lords on the points that they raised so that I can deal with them thoroughly—particularly those relating to cost, the role of BT and international co-operation, in particular with the United States.Housing Bill
8.33 p.m.
Consideration of amendments on Report resumed on Clause 129.
moved Amendment No. 125:
Page 94, line 27, leave out "immediate"
The noble Lord said: My Lords, the need to show that "immediate" steps will be taken places too heavy a burden on the person who is likely to be the subject of the order. What is meant by "immediate" in any case? Does it mean tomorrow or next week? It may simply not be practicable in the circumstances, even though the owner may well wish to take action to ensure that the property is occupied without undue delay. Planning permission may need to be applied for. Work may need to be done. The proposed alternative wording gives more flexibility to enable full account to be taken of the circumstances without compromising the need to avoid undue delay. I beg to move.
My Lords, I am sympathetic to the objective behind the amendment. However, in normal speak, the revised wording would weaken the intention of the clause, which 1 am sure is not the intention of the noble Lord. It is possible to conceive of many situations where it is wholly impractical for the relevant proprietor to let the property. That may be precisely why an empty dwelling management order is the proper course of action. If a relevant proprietor has reasonable and practical proposals to secure occupation of a dwelling, the matter will never even get to the residential property tribunal. Once a matter reaches that tribunal we do not want to allow any delaying tactics to the procedure.
I remind the House once again that an interim empty dwelling management order is not the end of the matter. If the relevant proprietor is willing to co-operate, there is no reason why the management of the property should not very swiftly be returned to him. The whole point of the exercise is to have someone living in the dwelling. It is not for us to choose; we want the dwelling used. I understand the intention behind the amendment which gives the relevant proprietor more time to take any steps. If he can convince people that he is getting on with the job, quite clearly the property will not be empty. That is the whole purpose of the exercise. If this gives a kick-start to those who own empty properties to get them brought back into use we will have done our job, perhaps without issuing a single order—one never knows.My Lords, I thank the Minister for his reply. I accept what he says about empty properties being occupied as soon as possible. He also said that he had some sympathy with the way in which we have tabled this amendment. Like many issues that we have discussed today, the Government have some sympathy with what we are doing, as we are trying to improve the legislation. The points have been well received. I hope that there may be some rethinking on some of these issues before Third Reading. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 126 and 127 not moved.]
moved Amendment No. 128:
Page 94, line 35, after "rights" insert wishes and intentions"
The noble Lord said: My Lords, this amendment allows the RPT to consider the wishes and intentions of the relevant proprietor and not just his rights. A proprietor may well intend to do other things with the property—perhaps to demolish it or to change it to non-residential accommodation. His wishes in this matter should, at least, be considered by the RPT before authorisation is given for the making of an EDMO. I beg to move.
My Lords, I do not want to sound at all dismissive—it is the way in which the amendments have been degrouped. On Amendment No. 121, I explained the fact that the tribunal has to consider those issues when authorising an interim empty dwelling management order. I explained that Amendment No. 121 was linked with Amendments Nos. 128 and 136 and that Amendment No. 121 was not necessary. The reasoning is exactly the same in relation to Amendment No. 128.
My Lords, I accept that answer from the Minister and thank him for it. Again, we shall look at this issue and consider whether we need to return to it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 129:
Page 94, line 36, at end insert ", and
(c) the reason or reasons why the dwelling has been unoccupied"
The noble Baroness said: My Lords, we believe that this is an important proposal. It requires the residential property tribunal to review the whole history of why a dwelling is unoccupied and why a local authority seeks to make an empty dwelling management order.
There may be very good reasons why the property has not been occupied in the past and will continue to be unoccupied. The purpose of the empty dwelling management order is to deal with properties that have been unoccupied for some considerable time. Therefore, the residential property tribunal needs to investigate carefully the reasons why that situation has come about before an order is made authorising the making of an order. That is the reason for Amendment No. 129. I beg to move.
My Lords, in thinking about this I constantly go back to examples in my former constituency of frustration in relation to houses which were left empty. An ordinary suburban, tree-lined street, with two or three-bedroomed semis built in the 1920s and 1930s —nice houses, but with one stuck in the middle of a very long road. It was a nightmare. If we had had this kind of legislation then, my constituents would not have been asking why it was empty; they would have said, "Get something done about it".
The point I am making is that, by the time we get to the stage where the property has been vacant for such a long time, where there has been community interest, councillor interest, and so on, why it is empty is unimportant. If it fulfils the criteria, what is important is how it can be reoccupied. That is the purpose of the exercise. I accept that there may be all kinds of reasons, some of which may be very sad. I understand the sorts of things which could cause a property to be left empty and I do not dismiss them: far from it. However, at this point it is a question of whether the relevant proprietor has a plan to secure reoccupation. If so, all well and good and no order would be required. If there is no such plan and no co-operation with the local authority, then I think that the local authority is quite right to seek such an order. It is not expropriation; it is certainly not confiscation. It is in order to get the dwelling used. It is a house or home for someone, but it is not just that: it is the rest of the community. We are dealing with individual dwellings, but the neighbours of such dwellings, whose own homes may have been blighted for all sorts of reasons, also have to be considered. We think that the amendment is probably unnecessary in any event, simply because the tribunal will be required to consider the effect the order would have on the relevant proprietor's rights. This is sufficiently wide to enable the tribunal to consider any representations made. If the proprietor opposes the order, and part of the reason for opposition is a link to why it is empty, clearly the tribunal will be able to listen to that. If there is a really good reason, that is fine. That is what the tribunal is there for. It is not for us to second-guess that. If there is a good reason, we would not want adversely to affect anyone's rights by an order being made; but the reasons why the dwelling is empty is not the key relevant issue that the tribunal will have to consider.My Lords, I do not think that we are suggesting that it is the key consideration. It is clearly a consideration.
Subsection (2) of Clause 129 states:Part of the reason for doing that would he to find out why it was unoccupied. That is not spelt out. The reason why the dwelling has been unoccupied could be spelt out in subsection (3)(c). It is the history of what has led to this. I accept the Minister's point of view and I, like him, have seen properties in some areas that have caused great distress. Equally, however, somebody has the rights of ownership of that property, and they certainly have a right to indicate why it has been left empty. I am not sure that subsection (2)(b) fulfils that role. By strengthening it with this amendment, I should have thought that it would make it clear that such representation could be made. I hear what the Minister says. I may want to return to this at a later stage but, for today, I beg leave to withdraw the amendment."The matters as to which the tribunal must be satisfied are…(b) that the relevant proprietor of the dwelling does not intend to take immediate steps to secure that the dwelling becomes occupied".
Amendment, by leave, withdrawn.
moved Amendment No. 130:
Page 94, line 36, at end insert—
"(d) the extent and cost of any works which will be required to render the dwelling suitable for occupation."
The noble Baroness said: My Lords, to bring the property back into a liveable condition—indeed, probably better than a liveable condition—very extensive work may be required to make the property suitable for occupation. Considerable cost may consequently be involved and that could be excessive. It should be something at which the residential property tribunal is expressly required to look before authorising the making of an interim order.
It must be borne in mind that the owner of the property will ultimately have to meet the cost because they will not receive any rent until the local authority has recovered the cost of any such works. In an earlier amendment we were trying reach this point by suggesting that the local authority had to seek the best possible rent. The owner may wish to make representations regarding the extent and cost of any work—and the viability of doing that work, if it will be too expensive. I beg to move.
8.45 p.m.
My Lords, I fully accept the points made by the noble Baroness, but the amendment is not necessary for reasons which, I hope, are clear. No local authority will enter into such a project where it has to bear the financial risk that it might fail to recover the costs it incurs in making a dwelling habitable. The risk is with the local authority. I remind the noble Baroness—if the local authority fails to recover its costs, it returns the property to the relevant proprietor in a refurbished state and is unable to recover any of the outstanding costs. There is a big difference between interim management orders and final management orders under Chapter 1 of Part 4, and empty dwelling management orders.
Local authorities can be required to step in and make IMOs and FMOs when private rented properties suffer a collapse in management. But they choose to step in to make EDMOs. It is only right that they bear the risk if they decide to do that. On a practical level, it would also be fairly difficult for the property tribunal to make a judgment on matters of this sort because it could add hugely to the bureaucracy of hearings. The local authority has to bear the risk and so has to think about the matter before it proceeds with the order.My Lords, I thank the Minister for that reply. It settles the matter and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 131:
Page 94, line 36, at end insert—
"(e) any disadvantage to the relevant person or third party in relation to any other premises adjoining or in the neighbourhood of the dwelling which may result from the making of the order."
The noble Baroness said: My Lords, one type of property which could well be the subject of an interim EDMO is a flat above a shop. As we have discussed in previous legislation, many of these are left empty for a number of reasons—one of which might be perceived problems of security. Property owners and investors often avoid letting flats above shops because of management problems which can result in them being unoccupied. Consequently, there is an increased risk of break-ins into shops. This is particularly the case if flats are then let out by local housing authorities to those who cause anti-social behaviour. It is right and proper that the residential property tribunal should look at the effect that may result on other properties close by if an interim order were to be made. I beg to move.
My Lords, I am grateful that the noble Baroness has made it clear that the amendment is concerned with the making of EDMOs in respect of flats over shops. Clause 127(4)(a)(ii) already provides that a dwelling for the purposes of EDMOs must have its own separate access. So, in the case of a flat over a shop, it must be possible to enter it other than through the shop. That is not unusual because one often sees street doors between shops giving access above. Nevertheless, that is a factor.
The amendment would effectively mean that the relevant proprietor, or someone else with an interest in the building, could block the making of an interim EDMO if they considered residential occupation of the flat would be unsuitable. We are making significant efforts to work with commercial property freeholders and retailers to persuade them to bring redundant commercial space above shops back into use. I accept that it is not easy. The Housing Corporation and English Partnerships are currently considering the scope for a new advice and delivery mechanism for vacant space above shops. The work has the support of a number of organisations, such as the British Property Federation, which were involved in the Housing Above Shops Task Force that I commissioned when I was the Housing Minister. I pay particular tribute to the British Property Federation because, on the very day I raised the question with it in an informal way, it was very proactive and positive. It came to the department with some solutions, rather than a pile of questions, and the matter has been taken forward. That work, however, is largely concerned with creating residential accommodation from void space that is no longer needed for commercial use. That is the key area. Where existing flats over shops are vacant, we consider that the case for securing their occupation is not in doubt, and do not see that a relevant proprietor, or anyone else, should be entitled to prevent that occupation. Of course, residential and commercial uses come into conflict. Commercial people say, "I'm running a business, I don't want to be a landlord. I don't want the hassle and all the rigmarole". This is part of the reason why a lot of these properties have lain empty; it is a real problem. We think, however, that it ought to be possible to prevent such problems arising through sensitive management and appropriate tenant selection, so we need that delivery mechanism or third party involvement. Clause 129(3) already provides that the tribunal must take into account the effect of the order on the rights of the relevant proprietor and third parties. To that extent, the amendment is superfluous, but I do not dismiss it as irrelevant, as it raises the important issue of empty flats above shops. However, if they were used as dwellings in the past and they are just kept empty, I do not see why they should be exempted. However, we are looking at the issue more widely.My Lords, as leader of a council that started one of the projects on shops above commercial premises, I know exactly the problems associated with them. There are many reasons why those flats and apartments have been left empty. The Minister has drawn attention to an area in the legislation that probably covers the matters 1 have raised, and I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 132 and 133 not moved.]
Clause 130 [ Local housing authority's duties once interim EDMO in force]:
moved Amendment No. 134:
Page 95, line 35, leave out from "must" to end of line 36.
The noble Lord said: My Lords, the whole purpose of making an interim EDMO is to ensure that the property is occupied. If steps are not taken to achieve that purpose, the EDMO should be revoked altogether—there is no point in making a final EDMO and prolonging the process. This is the intent behind Amendment No. 134.
Regarding Amendment No. 135, we believe the local housing authority should also be placed under a duty to ensure that the property is secure, to prevent intruders. Additionally, the authority should take reasonable steps to minimise damage and sensible measures, such as cutting off the water to prevent pipes bursting in winter, which need to be taken by a local authority in addition to insuring the property. I beg to move.
My Lords, the noble Lord said that Amendment No. 134 relates to the local authority's duties once an interim empty dwelling management order has come into force. The amendment itself would remove the ability of the local authority to make a final empty dwelling management order if that authority concluded there were no steps it could take to secure occupation of the dwelling under an interim empty dwelling management order. Effectively, the only course of action open to the authority would be to revoke the interim order and take no further action.
The amendment fails to take into account the reasons why it might not be possible to secure occupation of the dwelling. Under an interim empty dwelling management order, a local authority cannot grant a tenancy without first obtaining the consent of the relevant proprietor. It sounds repetitious, but it is crucial that I get that point across. Where consent is not given, the only course of action open to the authority would be to revoke the interim empty dwelling management order and make a final empty dwelling management order. Under the final empty dwelling management order, the local authority would be able to grant a tenancy without the need to obtain the relevant proprietor's consent, though that is the "nuclear option". The amendment fails to take into account why securing occupation might not be possible, and therefore I ask the noble Lord not to pursue the matter. I hope I have answered him satisfactorily. This is a complicated area—I freely admit that we are in uncharted waters. We have to be seen to be practical to make this work. In some ways, it will be down to the tribunal to assess all these conditions before the orders are made.My Lords, the Minister did not speak to my other amendment about the local authority taking reasonable precautions with regard to securing the property.
My Lords, that goes without saying. The local authority is bearing the risk in going for the order in the first place. As I have said on previous amendments, it carries the risk of not being able to recover money spent on the property to make it habitable. Therefore, it will have to think about this. It does not make any sense for a local authority to start work without securing the property, whether we are talking about access to the utilities or physical access. Once the local authority does this, it carries the risk. It does not own the property but will be liable for it. Therefore, local authorities must be reasonable. Frankly, only the reasonable local authorities will go for these orders, not the weak ones. I know that there are no unreasonable local authorities, anyway—only unreasonable actions.
It goes without saying that professional people and local authorities will have to take the necessary precautions to secure the property while it is being refurbished and remains empty.My Lords, I thank the Minister for his reply. As he said, this is new territory and the mechanisms are somewhat complex. We need to analyse them further before Third Reading. I accept everything that the Minister has said; obviously everything must be practical. We need to carry out more scrutiny on the process before Third Reading so that we can question it again before it becomes law. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 135 not moved.]
Clause 131 [ Making of final EDMOs]:
moved Amendment No. 136:
Page 96, line 20, after "rights" insert ", wishes and intentions"
The noble Lord said: My Lords, as with similar amendments in this vein, Amendment No. 136 would require an authority to consider the wishes and intentions of the relevant proprietor before it makes a final EDMO. This is very similar to the discussion we have just had. For example, the owner might indicate that he now intends to let the property and is willing to find tenants for it. The property should not then be subject to a final EDMO. I beg to move.
My Lords, this is the final limb of Amendment Nos. 121 and 128. When I spoke to Amendment No. 121, I said that the same answer applied to Amendment No. 128, and I indicated that Amendment No. 136 was also in the parcel. Amendment No. 136 has the same effect as Amendments Nos. 121 and 128. Therefore, I ask those who are looking at what we have been doing today to read what I said on Amendment No. 128, because the reasoning is exactly the same for Amendment No. 136.
My Lords, I thank the Minister for that answer. I accept it totally. As I said on the previous amendment, we will scrutinise the answers and look at the process to make sure that we understand it absolutely. Again, this is new territory, and we want to make certain that the legislation is sufficiently scrutinised. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 137:
Page 96, line 32, leave out paragraph (c) and insert—
"(c) paragraph 7(6)(a) is to be read as referring instead to Part 4 of Schedule 7;"
On Question, amendment agreed to.
moved Amendments Nos. 138 and 139:
Before Clause 140. insert the following new clause—
"Supplementary Provisions
(1) The appropriate national authority may by regulations make such provision as it considers appropriate for supplementing the provisions of Chapter 1 or 2 in relation to cases where a local housing authority are to be treated as the lessee under a lease under—
(2) Regulations under this section may, in particular, make provision—
Before Clause 140, insert the following new clause—
"Interpretation And Modification Of This Part
(1) In this Part—
- "HMO" means a house in multiple occupation as defined by sections 237 to 242,
- "Part 3 house" means a house to which Part 3 of this Act applies (see section 77(2)),
and any reference to an HMO or Part 3 house includes (where the context permits) a reference to any yard, garden, outhouses and appurtenances belonging to, or usually enjoyed with, it (or any part of it).
(2) For the purposes of this Part "mortgage" includes a charge or lien, and "mortgagee" is to be read accordingly.
(3) The appropriate national authority may by regulations provide for—
to have effect in relation to a section 240 HMO with such modifications as are prescribed by the regulations.
(4) A "section 240 HMO" is an HMO which is a converted block of flats to which section 240 applies."
On Question, amendments agreed to.
Clause 140 [ Index of defined expressions: Part 4]:
moved Amendments Nos. 140 to 144:
Page 101, line 31, leave out "97(6)" and insert "( Interpretation and modification of this Part)(1).
Page 102, line 6, leave out "105(6)" and insert "( Interpretation and modification of this Part)(2).
Page 102, line 9, leave out "97(6)" and insert "( Interpretation and modification of this Part)(1).
Page 102, line 17, at end insert—
| "Third party (in Chapter 1) | Section 97(9)" |
Page 102, line 18, after "Third party" insert "(in Chapter 2)"
On Question, amendments agreed to.
My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and on Question, Motion agreed to.
House adjourned at nine o'clock.