Housing and Planning Bill

Lord Shipley Excerpts

Tuesday 9th February 2016 Lords Chamber

[Baroness Williams of Trafford]

Amendments C1 and 8ZA relate to the same issue, so I shall address them together. Amendment C1 would remove Clause 13(3) from the Bill and replace it with a provision listing the offences that constitute banning order offences, namely,

“unlawful eviction of a tenant; or … failure to comply with an improvement notice in relation to property conditions”,

and would require that regulations to amend the list be subject to affirmative resolutions.

Amendment 8ZA would amend Clause 22, and would require financial penalty guidance to be laid in draft before Parliament, and not brought into force without an affirmative procedure resolution of each House.

We propose to define banning order offences in secondary legislation, as this will give us the flexibility to amend the list of banning order offences in the light of experience, as my noble friend Lord Deben said. As he has also requested in terms of certainty, we are sympathetic to that and we will consider it further.

Clause 13(4) explains what matters may be taken into consideration when setting out in regulations what are banning order offences. Banning order offences are likely to include a serious offence, where an offender has been convicted in the Crown Court of an offence involving fraud, drugs, sexual assault or violence that is committed in, or in relation to, a property that is owned or managed by the offender, or which involves, or was perpetrated against, persons occupying such a property. A banning order offence also includes any serious offence involving violence against the tenant by the landlord or property agent, and serious breaches of housing legislation.

We are planning to publish the secondary regulations in draft and will consult on these in the autumn before they are laid before the House. These will all be existing offences that already have serious consequences for those who are convicted. We are introducing civil penalties as an alternative to prosecution, and these will be available for certain serious breaches of housing legislation. The guidance for local authorities will be procedural and will provide advice on when it may be appropriate to issue a civil penalty rather than prosecute, together with advice on what might be the appropriate level of penalties.

The noble Lord, Lord Beecham, asked about the right of appeal for civil penalties. The landlord will have a right to appeal against a civil penalty to a First-tier Tribunal and can either cancel or decrease the penalty. Several noble Lords have brought up the DPRRC and its recommendations on the delegated powers in the Bill, including those highlighted in these amendments. I can confirm to noble Lords that we will consider the committee’s recommendations and respond in Committee if possible, but certainly before Report. I hope that, with those comments, the noble Lord will feel content to withdraw the amendment.

[Lord Shipley (LD)]

Before the Minister sits down, can I confirm my understanding of what she has said about secondary legislation? There was a request earlier that a draft of the secondary legislation should be made available to this House before Report. Yet I understood the Minister to say that there would be a draft of the secondary legislation in the autumn, which is clearly not before the Report stage. This is an extremely important matter, so can the Minister confirm exactly what the Government plan to do?

[Baroness Williams of Trafford]

I thank the noble Lord for seeking that clarification. I said that we were planning to publish the regulations and consult on them in the autumn. If I can get any detail on them before then, I shall do so.

--- Later in debate ---

[The Earl of Lytton (CB)]

I support the noble Baroness and, in doing so, I declare my interests, first as a professional property manager, and—possibly even more significantly—as a private sector landlord. I believe I have a very contented set of tenants, without any of the roguishness that we have heard about.

Leaving aside the absence of a clear due process in the Bill and the safeguards that should go with that, in what I can describe only as this “subcontract” process to local government, putting to one side the non-judicial disposal of a case that might result in the label “rogue”, with lasting stains on character, and parking for one moment the hiatus in terms of the standard of proof referred to by the noble Lord, Lord Beecham, there remains an overriding need for Parliament to retain scrutiny of the process, the safeguards and the standards. At the moment we seem to be short of a commitment on that.

I am also concerned that the whole process is a bit reactive, populist and, if I may say so, potentially discriminatory against a class of person called a landlord or their letting or managing agent. At Second Reading, I advocated—at least, I hope it was interpreted that way—perhaps going beyond that to try to support and nurture best practice, in equal measure carrot and stick. It seems to me that landlords can very easily be pilloried by their feckless tenants in the same way that tenants can clearly be very easily prejudiced by malevolent landlords.

There are probably at least as many undesirable tenants, in numerical total, as there are undesirable landlords. I do not say that in any way to cast aspersions on the tenants. I believe that the vast majority of them, in the same way as landlords, honour their commitments, try to do the best thing and genuinely create something that is growing in popularity. It is an expanding sector. The last thing we need to do is to set about damaging it so that people feel that they are under the cosh and go away. At Second Reading, I referred to the fact that our European neighbours seem to have sorted this out without this continual anti-landlord or anti-tenant adversarial approach in their dealings.

Therefore, we need to look at the whole situation and—if I may put it this way—somehow invert the process. Perhaps having the regulations before us is one step on the way so that we can look at that in detail and examine what the actual process is. At the moment, it would be possible for almost anything to be passed down to local government. As a vice-president of the Local Government Association, I would be slightly fearful, as a local government chief officer, of what might get passed down to me, thank you very much, as a hand-me-down to police this sector.

I support the noble Baroness. The key to this is very much to get these regulations out, and I support the general thrust of her amendment.

[Lord Shipley]

In a sense, everything has been said about this issue, but we must put on the record, for the avoidance of any doubt, that this amendment in the name of the noble Baroness, Lady Gardner of Parkes, is extremely important. As we have heard, had it not been for the manuscript amendments, this would have been the first that we discussed. It brings to the fore the issue of principle about the role of your Lordships’ House.

I agree that the Delegated Powers and Regulatory Reform Committee’s report is one of the most critical—possibly the most critical—that I have read. For that reason, it matters profoundly how the Government react to it. This House must be able to do its job properly. With so much being left to secondary legislation and so much that will not be with us by Report, the Government will have to do a very urgent job.

It has been asserted that perhaps the secondary legislation has not been drafted. It really ought to have been. If it has not been, we should be told. If it has been, and it is in a form that we could see, even if it is a draft of a draft, that would be extremely helpful. I think the Minister understands the strength of feeling in your Lordships’ House about this issue. I sincerely hope that she can respond positively to the amendment moved by the noble Baroness, Lady Gardner of Parkes.

[Lord Beecham]

My Lords, I warmly endorse everything that the noble Lord, Lord Shipley, has said, and I, too, pay tribute to the noble Baroness, Lady Gardner of Parkes, who of course has long had an interest in these matters and has repeatedly raised them in your Lordships’ House.

It is important that the Government listen to the experience of Members from a variety of backgrounds, who know a good deal about the implications of legislation of this kind. There is a temptation to legislate in haste with a risk that you—or, more particularly, other people—repent at leisure. There is that concern about the way this matter has proceeded thus far. I fear that it is not uncommon for the committee to comment adversely on the way that matters are brought before your Lordships’ House. Lack of consultation and the reservation to government of powers to prescribe by secondary legislation, which may not come for a long time or sometimes come into force before any scrutiny has been given, is particularly invidious when we are looking at areas such as this, which impinge on the lives of many citizens.