The Minister of State, Home Office (Lord Bates) (Con)
After the remarks made by the noble Lord, Lord Best, I am tempted to say that I invite the noble Baroness to consider withdrawing her amendment at this stage. The noble Lord gave an authoritative and insightful perspective on the process. As this is the first time that we have come to residential tenancies, for the benefit of the Committee I should put on the record that my wife owns properties that are rented in the private sector. It is not something that is required to be listed in the register but, out of courtesy to the Committee, I make your Lordships aware of that.
Amendment 148 would extend the existing requirement on the Secretary of State to issue a code of practice that specifies what a landlord or agent should or should not do to avoid contravening the Equality Act 2010. It would then relate to all protected characteristics set out in the Equality Act. Amendment 151 would require that, before the offences of leasing premises in this Bill are commenced, the Government should lay before Parliament a report of the impacts of the restrictions on illegal migrants accessing the private rented sector which were introduced in the Immigration Act 2014 in relation to discrimination and the ability of those lawfully residing in the UK to access rented accommodation where they have neither a passport nor a driver’s licence.
Amendment 159 would require an evaluation to be made of the effect of the measures in the first phase area. This would have the effect of delaying any extension of the right-to-rent measures in the Immigration Act 2014 from the first phase area in the West Midlands until at least 1 December 2019. The Government take their duties to have due regard to the need to eliminate all forms of discrimination very seriously. The Government have published the policy equality statement and the evaluation of the right-to-rent scheme. The evaluation found no hard evidence of discrimination where the right-to-rent scheme had been commenced, or, indeed, when that area was compared against others, as the noble Lord, Lord Best, outlined. The evaluation also found no evidence that people who lacked a passport or driver’s licence suffered additional barriers.
The Government have given the fullest consideration to the findings of the evaluation and worked with the landlords consultative panel to ensure that the rollout is taken forward, bearing in mind the lessons learned. There is a list of acceptable documents for the right-to-rent checks, which sets out a broad and comprehensive set of options. This can be used by prospective tenants who do not possess a passport or driving licence to provide evidence of their right to rent. It has recently been revised further in consultation with bodies representing landlords, agents, local authorities and the housing charities Crisis and Shelter.
The code of practice that has been published addresses the concerns raised when the Immigration Act 2014 was passed that the right-to-rent scheme might inadvertently result in increased discrimination on the grounds of race. It provides guidance to landlords and agents in avoiding such discrimination. The Government do not believe that there is potential for the right-to-rent scheme to result in increased discrimination on other equality grounds.
Amendment 159 is at variance with the Government’s concerns that the measures should be implemented across the country with the minimum of delay. The Government are already committed to extending the scheme across England on 1 February and the order extending the scheme from that date has already been laid before Parliament.
In implementing the scheme, the Government have engaged with a panel of experts comprising representatives of landlords’ and agents’ associations, homelessness groups and the Equality and Human Rights Commission, as well as local authorities in the areas concerned. We are confident that we have designed measures that will meet the intended objectives.
Having put those remarks on the record, I come to the points raised in the course of the debate.
Baroness Sheehan
Would the Minister talk about whether he thinks a sample size of 23 people who are visibly from an ethnic minority is a sensible basis on which to base this evaluation?
Lord Bates
I will of course come to that. I realise that there are some very detailed questions and I am certainly not skipping past them, but I wanted to put on record the Government’s response to the amendments before turning to the matters raised in the debate.
There are some interesting points here, the first of which is that, while this scheme has been rolled out into the private sector, the requirement to prove identity has been in operation in the social sector. It was introduced by the Labour Government in the Immigration and Asylum Act 1999. It provides a duty on local authorities to check that those entering social tenancies have a right to be in the UK. Indeed, it goes further and places a duty on local authorities to notify the Home Office where they come across people who do not have a right to be in the UK. What is new is that that requirement is being applied to the private sector.
On the criticism of the independence of the office of evaluation—a point made by my noble friend Lord Deben and a number of noble Lords—the Home Office Science evaluation had scrutiny of the consultative panel co-chaired by the noble Lord, Lord Best. It might be helpful for the Committee to have on record the members of the landlords consultative panel, co-chaired by James Brokenshire and the noble Lord, Lord Best. The representatives included: the Association of Residential Letting Agents; the UK Association of Letting Agents; the Residential Landlords Association; the National Landlords Association; the Royal Institution of Chartered Surveyors; the Department for Business, Innovation and Skills; the Department for Communities and Local Government; the Equality and Human Rights Commission; the boroughs of Sandwell, Dudley and Walsall; the National Approved Letting Scheme; Birmingham and Wolverhampton city councils; Universities UK; and Crisis.
Lord Deben
I did not criticise this as not being an independent group. My point was that the work should go on for longer before it is assessed, perhaps by the same group. It is not a question of complaining about the independence of the group; I fear that there has not been sufficient time to be able to draw the kind of conclusions which have been drawn. I think that is precisely what the noble Lord, Lord Best, indicated—that it would have been better to have had a longer period. All I was suggesting was that if you had a longer period and then had the independent assessment that would be better, given what a serious matter this is.
Lord Bates
I am very happy to take that further. First, it is worth pointing out that landlords already undertake a number of checks. It is standard for them to check people’s identity to determine whether they are who they say they are. They take up credit references. It is standard to take up references from previous landlords to determine whether the tenants are suitable people. They require proof of employment. Therefore, a number of checks are already required. Establishing that somebody has a right to be in the UK and has the appropriate documents should be done already under best practice. However, I shall address some of the practical points about how we communicate this change.
I return to the point about the robustness of the research because that was raised by a number of noble Lords. A wide range of research tools have been used, including 17 online surveys with 539 responses. They were just part of the exercise. There were 12 focus groups and 36 one-to-one interviews. In addition, a total of 332 mystery shopping encounters were completed. The evaluation has been overseen by the consultative panel to which I referred. The Home Office has not made claims about how representative the tenants’ survey was as it was administered via mailing lists and web links, and therefore we do not hold detailed responses on that. Research was carried out with landlords’ letting agents. The landlords’ survey had 137 completed responses, 114 of which related to landlords with properties in the phase one area. The tenants’ survey had 70 completed responses, 68 of which related to tenants in the phase one area. As regards the robustness of the research, multiple methodologies were used to understand the impact of the scheme in its first six months between 1 December 2014 and 31 May 2015. It reached multiple stakeholder groups—I know that is the concern of my noble friend Lord Cathcart—of landlords, letting agents, housing associations and other voluntary and community sector organisations, including local authorities. I can also provide further details about the research if that would be helpful.
Baroness Lister of Burtersett
To save the noble Lord from jumping up and down, our concern is that this could affect some people who have a perfect right to be here, such as British citizens—this is part of the point that the noble Baroness was making about people who are homeless. Vulnerable and disadvantaged groups—I talked about women fleeing domestic violence—may simply not have the evidence. A landlord who is in a hurry, and if there is great competition for space, is more likely to take the person who has all the documentation right at hand. It is not just between people who are not supposed to be here and people who are, because actually other groups are vulnerable to the unintended discriminatory consequences as well.
Lord Bates
I hear that. I am making the point that private sector landlords, in doing their due diligence on the person they are renting to, will already require a great deal of detail or proof of who they are and that they have a right to be here. It would surely be in their own interests. If they were letting out their property to someone who had no legal right to be here, they might find that that person disappears and they are left out of pocket. This is eminently sensible in terms of due diligence on the behalf of landlords, as well as being widely consistent with making it more difficult for individuals who are here illegally to operate, in terms of bank accounts, driving licences and employment. The evaluation found very little evidence that British citizens with limited documentation were experiencing problems as a result of the scheme.
With regard to the unacceptable burden of checks, landlords are being asked to take responsibility for ensuring that prospective tenants have a right to rent in the UK by carrying out simple document checks; where necessary, in a small number of cases, making a report to the Home Office. This supports the work of the Government to make it more difficult for illegal migrants to reside here unlawfully and to stop them accessing services to which they are not entitled.
The noble Baroness, Lady Lister, mentioned domestic abuse. She said that victims who do not have documents will struggle. In August 2015 the noble Baroness, Lady Williams of Trafford, announced a £3 million fund for 2015-16 to address any gaps in the provision of specialist accommodation-based support for victims of domestic abuse.
The noble Lord, Lord Deben, asked who should be checked. The answer is any adults who will be taking up the accommodation as their main or only home in the UK. This means all adult occupants, not just those who may be the named tenants.
The noble Baroness, Lady Sheehan, asked about evidence of stolen documents. If a document is stolen, a letter from a UK police force confirming that the holder is the victim of a crime and personal documents have been stolen, stating the crime reference number and issued within the past three months, would be acceptable.
I have covered the point on domestic violence. The Home Office will be aware of who is applying for leave to remain under paragraph (289A) of the Immigration Rules as a victim of domestic violence. It will refer to the national referral mechanism to ascertain who has been the victim of human trafficking. Permission to rent will not be denied to such persons.
In answer to another point made by the noble Lord, Lord Deben, the landlords’ survey included a broad range of landlords with different sizes of properties and portfolios. Focus groups also included small-scale, informal landlords, including those renting a single room. I was asked about fees. The report noted:
“However amongst the focus groups with informal tenants it was suggested that the charging of fees by some agents was common practice. This was not due to the Right to Rent scheme, but had been a long-standing practice—especially in areas where demand exceeds supply”.
I think that I have covered the points about homelessness and students. I say to the noble Baroness, Lady Sheehan, that we have worked with Crisis and Shelter in developing the list of acceptable documents for the right-to-rent checks.
Baroness Sheehan
I want to put more about the evaluation on record. We have heard a lot from the noble Lord, Lord Best, about his experience on the evaluation committee, but Crisis was also a member of that Home Office panel, and its assessment is very different. It is very concerned that,
“the harsh penalties for landlords who fail to evict tenants who don’t have the correct immigration status will compound the effect of the previous Immigration Act and make landlords much more ‘risk averse’ and less likely to rent to people who may not have easily recognisable documentation such as homeless people, as well as leading to increased discrimination against foreign nationals and people of black and minority ethnic backgrounds”.
I also had a meeting with the Residential Landlords Association, which said that its fears had been allayed. It was really quite concerned about its members who rented to students and that large student accommodation would be exempt. So while I know that landlords’ concerns have mostly been put to rest, let us please not forget the concerns of people who are dealing with the more vulnerable groups, such as the homeless and the not so well-off immigrants.
Lord Bates
That is an important point. Students are of course exempt because their right to be in the UK will have been checked by their university in granting them accommodation. The fact that they are exempt is because those checks are happening, and the social sector is exempt because the checks are happening there. All we want is for those checks to happen in the private sector as well.
Lord Kennedy of Southwark
Can the Minister say a bit more about who is doing the evaluations? The points that the noble Baroness, Lady Sheehan, and the noble Lord, Lord Best, have made clearly could not be further apart.
Lord Bates
In that respect I might suggest that the partial solution which we came across for our last debate, which was on overseas domestic workers, was to look at organising a meeting in between Committee and Report. However, it would probably be more useful for the House to have the noble Lord, Lord Best, at such a meeting if he were willing to meet with colleagues on that basis. We would certainly be happy to facilitate one to explain more about the process, but we have tried to be as transparent as possible about this. It has been a long trial and there has been a thorough evaluation. It will also continue to be under review because this is not the completion of the process; we are simply talking about moving to the next stage of rollout, which is to England. There will be further opportunities for evaluation thereafter. I hope that, with those suggestions, I might have prevailed upon the noble Baroness to withdraw her amendment at this stage.
Baroness Hamwee
My Lords, I will want to go back and read what the Minister had to say about protected characteristics, so I will not spend time on that. I am not surprised that he does not agree with my Amendment 159—that is self-evident.
I would not for a moment accuse the Government of not being transparent on this. It is no secret at all that his party, in the last Government, did not want to have a pilot but to roll the scheme out right across the country immediately. We have information which has been the basis of the argument against rolling it out further. The points made by the noble Lord, Lord Deben, are unanswerable.
Lord Kennedy of Southwark
My Lords, this group of amendments contains some very sensible protections for landlords, who could find themselves in difficulties and at risk of prosecution and a fine, imprisonment or both, although they have taken all reasonable precautions and have no intention of breaking the law. Landlords, as has been said before, are not immigration officers. One of the concerns about this section of the Bill is that people will take reasonable precautions but will still find themselves in difficulties and possibly at risk of prosecution.
The amendment in the name of the noble Lord, Lord Howard of Rising, is both simple and effective, and he has made a compelling case here today: the landlord would not commit an offence if they had taken reasonable steps and there was no reasonable cause not to believe that other persons who met the first and second conditions were residing at the property.
Amendment 149 seeks to afford landlords protection when they are prohibited from evicting a tenant under new Section 33D(4), and Amendment 150, in the name of the noble Earl, Lord Cathcart, would protect landlords who were acting diligently to evict people who were disqualified as a result of their immigration status. Again, the noble Earl has made a compelling case as to why the amendment should be supported.
I have no issue with Amendment 153 in the name of the noble Lord, Lord Bates. The remaining amendments are in the names of my noble friend Lord Prosser, myself and the noble Baroness, Lady Hamwee. These important amendments would ensure that individuals and families could be evicted only following due legal process, by removing from the Bill the provisions to grant new and extensive powers to landlords outside the oversight of the courts. I say to the Minister that the Government really are creating a very difficult situation here. This whole part of the Bill puts significant pressure on landlords, with tough penalties and little protection, along with extensive new powers with no oversight by the courts.
There is a real risk here, as has been said by other noble Lords, that landlords will just not rent the property to anyone who looks as though they might be more of a risk, and great injustices could take place. To make it worse, the courts are to be excluded from the process of evicting people if they are resident in a property. This is not right, and the Government are going to have to make some movement on these matters again. I hope the Minister will agree to meet Peers who are interested in these matters and campaigners before we come back on Report.
Lord Bates
My Lords, I shall speak to Amendment 153 in my name and respond to the amendments spoken to by noble Lords. Government Amendment 153 provides powers for the Secretary of State to prescribe the form of the notice that the landlord must serve in relation to the eviction powers in new Section 33D, and the manner in which it is served. This amendment provides clarity and consistency to landlords, tenants and High Court enforcement officers about the circumstances in which High Court enforcement officers will be permitted to enforce a notice. The Secretary of State may prescribe the form or forms to be used by order, subject to the negative procedure.
I understand the concern that has been expressed thoughtfully and passionately, particularly by my noble friends Lord Howard of Rising and Lord Cathcart, that reputable landlords who have made a mistake or been deceived would be committing an offence immediately when they receive a notice from the Home Office that a tenant is disqualified from renting. However, I reassure them that the focus of these measures is on the minority of rogue landlords who deliberately flout the law. They are the intended target of the legislation, as the noble Lord, Lord Best, said in his excellent summary on the previous amendment. They are not intended to be used against reputable landlords who may have made a genuine mistake. In fact, if we look at the Bill in its present form, new Section 33A(3) says that the condition for an offence to be committed,
“is that the landlord knows or has reasonable cause to believe that the premises are occupied by an adult who is disqualified as a result of their immigration status”.
That threshold of proof, “knows or has reasonable cause to believe”, is very high.
The offences in the Bill are to do with landlords and agents knowingly renting to illegal migrants or doing so when they have reasonable cause to believe that they are doing so. They are not strictly about a failure to evict. While a desire to safeguard the position of responsible landlords is understandable, it would not be right to afford a grace period of 28 days to the worst offenders, such as the one that would result from Amendment 149. Such landlords deliberately rent to and may also exploit illegal migrants. Likewise, it would be difficult to be certain in any particular case what would constitute “proceeding diligently” for the purposes of Amendment 150. I am concerned that this would also provide rogue landlords with a way to avoid prosecution.
Amendment 148A is unnecessary because, under the right-to-rent scheme introduced by the Immigration Act 2014, the landlord should perform document checks to a reasonable standard. Should they do so, they will not be liable to a civil penalty, nor will they be subject to prosecution under this legislation unless they are explicitly notified or become aware when they undertake subsequent checks that an occupant is an illegal migrant.
Lord Kennedy of Southwark
Nobody here wants to protect the rogue landlords—all these amendments are about protecting the good landlords and they relate to genuine concerns about that. It would not be the first time that mistakes were made; people get things wrong, officials get things wrong. We are trying to ensure that we protect the good landlords, not the rogue ones.
Lord Bates
I accept that, and the noble Lord is making a genuine point. Certainly that is the intent, as we have said, behind the legislation. If evidence comes to light during the passage of this legislation through this House that that may not be the case, clearly the Government will want to take note of that, because it is explicitly not the intent to catch the vast majority of genuine landlords. There are a small number of rogue landlords.
Earl Cathcart
I am sorry to interrupt again. I understand the issue about rogue landlords, and of course one wants to catch them and not the good landlords. Will the Minister say whether he will consider my idea of clear guidance from the Director of Public Prosecutions? To that effect, I listed four things that he might consider.
Lord Bates
The Home Office will investigate this and present cases to the Crown Prosecution Service for a decision about whether to prosecute, and resources will be targeted at the most serious offenders. The intention behind the measures, which is that they should be used only against those landlords who deliberately and consistently flout the law, has been stated unequivocally by Ministers during the passage of the Bill. However, I give an undertaking that I will be very happy to meet my noble friend, officials and other interested Peers to discuss whether there are gaps or particular remedies as regards guidance that could be brought forward.
Lord Howard of Rising
I very much welcome the chance to meet my noble friend to discuss this. I point out, with regard to the guidance—the Explanatory Notes—my noble friend keeps talking about landlords doing the checks, but it specifically says in the guidance to the Bill that it,
“applies where any adult is occupying the premises, regardless of whether the adult is a tenant under or is named in the agreement”.
We are not saying that there is a problem where people have been able to do checks, but that where somebody comes in, the guidance specifically says that those people have to be monitored—and I do not know how my noble friend expects landlords to monitor them. We are not a police force. That is a really important point. The other thing is that whatever anybody says—the noble Lord or my noble friend Lord Best—I cannot think of any legislation that is not abused sooner or later by somebody.
Lord Bates
We need to avoid creating an unintentional loophole that effectively says, “We’ll ask no questions and we won’t contravene the proposals in this legislation”. That cannot be right. I would imagine that most landlords would want to know who was occupying their property. In the event that a property is the subject of subletting agreement, at that point there would of course be a liability to carry out the background checks, which would fall to the people who have made the decision to sublet. However, making a general exemption in those circumstances could create an unwelcome loophole.
Lord Bates
Baroness Hamwee
I will move Amendment 158 very briefly. This amendment came about as a result of the report of the Delegated Powers and Regulatory Reform Committee. I will not explain the detail of the clause because I am aware that the Minister intends to make a full response to the DPRR report—as I understand it, before Report. I am moving this amendment in order to ask that we get that response in reasonable time just in case we do not agree with what the Government have to say. If that is the case, we may want to use Report stage as the last opportunity to put down an amendment similar to this one. I beg to move.
Lord Bates
My Lords, Clause 16 gives the Secretary of State the power to make such regulations as are appropriate to extend the residential tenancies provisions, as set out in the Immigration Act 2014, to Wales, Scotland and Northern Ireland. It is entirely right that there is provision to make such an extension throughout the United Kingdom as the residential tenancy provisions in this Bill are for the purposes of immigration control, which is a matter reserved to the UK Government.
Amendment 158 seeks to remove the provision for regulations under Clause 16 to confer functions on any person. In order to make appropriate provision that applies in Wales, Scotland and Northern Ireland, it may be necessary to confer functions on a person—for example, the Secretary of State for the Home Department or an immigration officer—under those regulations. The provision in the Bill is helpful as it makes it clear what can be done under these regulations. Removing the provision would serve no useful purpose and would lead to an unhelpful lack of clarity.
I note that the Delegated Powers and Regulatory Reform Committee’s 17th report of Session 2015-16 has drawn attention to some aspects of the Bill but not to this specific provision. As the noble Baroness has asked us to do, we will certainly provide a full response to the committee’s report and also, of course, make sure that Members of your Lordships’ House have a copy of the response before Report. I therefore ask the noble Baroness to consider withdrawing the amendment but to note the further consideration being given by the Government to the points raised by the Delegated Powers and Regulatory Reform Committee.