Deregulation Bill

Debate between Lord Ahmad of Wimbledon and Baroness Hayter of Kentish Town

Wednesday 11th February 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con)]

My Lords, I will speak to Amendments 45 and 45A before moving on to Amendment 46. Amendments 45 and 45A have been tabled in response to a recent court case, Charalambous v Ng 2014, and an unreported county court case, Cooper v Collins, which have created uncertainty in the private rented sector.

Amendment 45 clarifies that, where a letting agent has received a deposit on behalf of a landlord, the letting agent’s contact details can be given in the prescribed information instead of the landlord’s details. It makes detailed amendments to the Housing (Tenancy Deposits) (Prescribed Information) Order 2007—the order that lists the prescribed information that a landlord must give to a tenant—to make absolutely clear when a letting agent’s details may be provided instead of the landlord’s. The amendments to the order are retrospective, making clear that it is and always has been the case that a letting agent’s details may be provided in the prescribed information instead of the landlord’s. In speaking to these amendments and those that follow, I declare my interest as a landlord.

To ensure fairness, provision is also being made that would prevent the reopening of out of court settlements or court cases that have been finally determined on the basis of this issue. The amendments will apply in cases where legal proceedings are under way at the time the provisions come into force, but tenants will be protected from paying their landlord’s legal costs where the court subsequently decides against the tenant in the light of these provisions. This strikes the right balance between ensuring that tenants do not suffer financially as a result of the retrospective legislation and ensuring that landlords are not penalised where they have followed government advice.

Amendment 45A has been tabled in response to the Court of Appeal’s judgment in the case of Charalambous v Ng 2014, which concerned a landlord who received a tenancy deposit prior to the coming into force of the tenancy deposit legislation in 2007. The tenancy in question became periodic prior to the date that the tenancy deposit legislation came into force and has continued as such ever since. The court ruled that the tenancy deposit legislation should apply to all landlords in this position and that they would therefore need to protect deposits if they wished to rely on the no-fault ground for eviction known as Section 21. It was never the intention, either in 2007 or following amendments made to the tenancy deposit legislation in 2012, that it should apply in this way. The amendments that we propose will make absolutely clear that, although landlords affected by the judgment will need to protect deposits if they wish to rely on Section 21, they will not be at risk of financial penalties should they fail to protect.

Moving on to Amendment 46, I thank the noble Baroness, Lady Hayter of Kentish Town, for her desire to clarify “prescribed information” in relation to lettings, to which I have just spoken. Her amendment makes provisions along similar lines to those that I just outlined on Amendment 45. While the Government agree with the noble Baroness on this point, we believe that Amendment 45 addresses the issues in a more detailed way than Amendment 46. I hope that the noble Baroness will be sufficiently satisfied not to move her amendment.

The Government’s amendments will make welcome clarifications to the tenancy deposit legislation. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for that. He will not be surprised that I am delighted that the Government have seen sense and tabled their amendments, which are in far more correct language than I managed. They implement the amendment that I moved in Committee, which, as he said, appears in the Marshalled List as Amendment 46.

In Committee the Minister said that my amendment was unnecessary but, to be fair to him, he ensured that discussions took place with the tenancy deposit scheme, which had raised concerns about whether having the letting agent’s name in the paperwork, rather than the landlord’s, was sufficient. Clearly, those discussions persuaded officials that the change was necessary. I congratulate the Minister and the draftsmen on producing Amendment 45 in time for Report. For obvious reasons, we heartily support this and I will not move Amendment 46 when called.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, we are very happy to support the Government’s amendment. That is hardly surprising given that, as the noble Earl, Lord Cathcart, reminded the House, my noble friend Lord Stevenson of Balmacara and I tabled a very similar amendment to this—Amendment 50E to the Consumer Rights Bill—precisely to protect tenants against retaliatory eviction. Indeed, had the Government accepted it in principle at that stage, we would have had lots of time to discuss any tweaks and details. Furthermore, of course, that was the appropriate piece of legislation for it. It is exactly something that lives in a Consumer Rights Bill. It is quite hard to think why it should be in the Deregulation Bill but anyway it is here and we welcome the fact of it, and it is clearly the way the Government prefer it.

It is good to see the change of heart because when we moved that amendment in November, the noble Baroness, Lady Neville-Rolfe, who was dealing with it, said that the Government did not think it was necessary because it would not,

“add anything further to the guidance that is already available”.—[Official Report, 24/11/14; col. 761.]

To be fair, she supported the Private Member’s Bill in the other place and the Government have now decided to introduce this legislation, albeit perhaps not in the best vehicle, given that the Consumer Rights Bill is still in Parliament.

It is a shame that the Liberal Democrats who have added their names to the amendment did not share our concerns earlier. The noble Baroness spoke in favour of one of my other amendments, but it would have been nice to have their support when we tried to make letting agents belong to an ombudsman scheme. We got it through but without their help; nor did they support my attempts to get letting agents to put tenants’ rent into protected bank accounts, which would have safeguarded landlords as much as—if not more than—tenants, because when letting agents go walkies with the money it is usually the landlords who pay, but of course it is the tenants’ money that goes. But hey, I guess there is an election coming so now they are on the side of the tenants, and we welcome that support, belated though it might be.

We particularly welcome the Government’s view on this and their bringing forward these amendments. We know that it will please those who have campaigned a long time for this, including Crisis and Shelter, which have been mentioned, and the Brighton and Hove “Home Sweet Home” campaign, which has been working for a better and fairer private rented sector. Its members campaign on behalf of local tenants who are often too scared to speak out or to ask their landlords for repairs because they fear losing their homes. In places such as Brighton, that is not a joke; it does happen. As for the idea that there are rogue tenants—actually, the experience we have is of landlords mistreating their tenants.

These amendments give much-needed protection to tenants, as landlords will no longer be able to evict them in response to a valid complaint about their home. Tenants will no longer have to choose between living in poor conditions and losing their home. Unfortunately, revenge eviction has become a major cause of insecurity, not just in Brighton but elsewhere where there is a lot of pressure on the private rented sector. We want people to feel safe and secure in their own home, creating a fairer system for both tenants and landlords. We believe that these amendments will help achieve that.

We have one slight disappointment. As the noble Lord, Lord Ahmad, said, the hazard awareness notices are not included in these amendments, although they were in the Private Member’s Bill. We have some concerns that without these the protection risks being patchy. Some extra assurance on that would be welcome.

We are also pleased that, from what the Minister said in his introduction, the Government do not seem minded to accept Amendment 46AA in the name of the noble Lord, Lord Howard of Rising, which would extend the period that a tenant can wait before contacting the council from 14 to 28 days. Twenty-eight days is too long for a tenant to wait before legitimately contacting the council. None of us would wait that long if it was our home, especially if it was over Christmas. Therefore, where there is a serious problem that needs seeing to, we agree with the Minister that 14 days is the right balance.

I also pay tribute to the noble Lord, Lord Best, who has saved me from having to give a very robust response to those who fear that these amendments will achieve things that are too much in favour of the tenants and not of the landlords. We think that it is a fair deal between the two sides—although often, as people have said, they are not sides; it is a good relationship.

Meanwhile, given that the Government have decided—perhaps a bit late—to do something to help “generation rent”, it is a shame that it is not part of a wider strategy to ensure that tenants get a fair deal from landlords. We have undertaken to legislate for three-year tenancies, to give renters a stable home and landlords the confidence to invest. We will also stop letting agents charging fees to tenants, which we tried to do in the Consumer Rights Bill, but sadly that bit has not been brought over. However, I should not be churlish. We are delighted with the amendments that the Government have brought forward and we have pleasure in giving them our full support.

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who have participated in this debate. Again, it demonstrates the great expertise and interest in your Lordships’ House in this important issue. I will seek to answer all the questions that have been raised but if there are specific, technical questions, I add the caveat that I shall of course review all contributions and write accordingly to cover any points that perhaps I have not been able to cover in my response this evening.

I, too, thank the noble Lord, Lord Best, for his support for the government amendments. He always speaks with great expertise on housing issues across the board, so his support is most welcome. I hope it continues for the later part of the evening but we shall come to that shortly. I also thank my noble friends Lady Bakewell and Lord Stoneham for their support for the Government’s position. In thanking other noble friends who perhaps have not been totally supportive, I of course recognise the concerns that have been expressed across a range of issues and hope that I can address most of them in my response.

My noble friend Lord Howard asked about tenants who stop paying rent once they have made a complaint. I assure my noble friend that in this regard the amendment under no circumstances permits the tenant to stop paying rent, and the tenant will be obliged to pay. It provides that a Section 21 eviction notice can be invalidated only if a tenant’s complaint is supported by confirmation from the local authority. Indeed, if a Section 21 eviction notice cannot be served for a specified period, the tenant is still contractually obliged to continue paying rent. Failure to do so, as I said in my opening remarks, would leave them liable to eviction under Section 8 of the Housing Act 1988.

Landlord and Tenant Acts

Debate between Lord Ahmad of Wimbledon and Baroness Hayter of Kentish Town

Tuesday 29th July 2014 Lords Chamber

[Lord Ahmad of Wimbledon]

My noble friend makes a very valid point. There are landlords who are good and others who, unfortunately, are not. Good practice needs to be shared. If there are individual cases that need to be followed up and good practice that needs to be shared, I would of course welcome input from my noble friend in that regard.

[Baroness Hayter of Kentish Town (Lab)]

The Minister referred to the forthcoming right of every leaseholder, tenant and, indeed, landlord to take complaints—thanks, mostly, to this House—to a redress scheme. However, that will work only if people know about it and know which redress scheme to go to. Could the Minister outline what plans the Government have to notify tenants, landlords and leaseholders about this new right?

[Lord Ahmad of Wimbledon]

The noble Baroness is of course correct. We are looking to do that and to help leaseholders to feel more secure. On the right to be consulted about legal and service charges, to extend a lease or buy the freehold, to take over management—subject to certain criteria—or seek an appointment from a tribunal and protection for service charges so that moneys are protected from creditors, we are working with practitioners in the field to ensure that such information is communicated effectively. We have talked about good landlords and bad landlords. It is important that good practice and good landlord practice is shared, and we encourage landlords to share information on the rights of leaseholders with their own leaseholders.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Baroness Hayter of Kentish Town

Tuesday 5th February 2013 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, again I thank all noble Lords who took part in the debate. I will turn first to government Amendment 17 in the name of my noble friend Lord McNally. I shall speak also to Amendment 11 in this group.

Amendment 17 provides for the defence under Clause 5 to be defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned. We tabled this amendment in response to the concern raised in Committee by my noble friend Lord Phillips of Sudbury that situations might arise in which a website operator acts maliciously, for example by inciting the poster to make the posting or otherwise colluding with him. While we consider that these situations are unlikely to be common, on reflection we agreed that in circumstances where a website operator acts maliciously it is right that the defence should be defeated. I thank my noble friend for bringing this issue to the fore.

Amendment 11 was also tabled in Committee. It would require a website operator who wished to rely on the Clause 5 defence to publish a notice of complaint alongside the material complained of within seven days of receipt of the complaint. The amendment also provides that if the website operator fails to post a notice within the set period, they will forfeit this defence and will be able to rely solely on the standard defences available to a primary publisher.

The basis for this amendment is a recommendation of the Joint Committee on the Bill that website operators should attach notices to online material when complaints are received. The Government’s position on this proposal was first set out in our response to the Joint Committee’s report. We repeated our position during the passage of the Bill in this House and the other place. The issue is one of practicality. Ministry of Justice officials received representations from internet organisations following publication of the Joint Committee’s report, highlighting the practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material.

I will go through some obvious concerns that were raised, which may underline the practical issues. First, the point was raised that complained-about content might be embedded in a number of different sites, making it unclear who should be responsible for attaching the notice, where it should be placed and how it could be transferred across to other sites on which the material might subsequently appear. Again, as I said in Committee, I fully appreciate that the argument presents itself as one that it is in the interests of internet organisations.

In Committee we heard various arguments on both sides. My noble friend Lord Allan of Hallam highlighted practical issues from his own experience in the field. The noble Earl, Lord Erroll, talked about his daughter’s experience as a graphic designer for websites, and of the complexities of an operator attaching additional content without going back to the original programmer. I also acknowledge fully that my noble friend Lord Lucas expressed the view that it was far from impossible for website operators to attach such notices.

However, I will repeat on the Floor of the House what I said in Committee. The Government’s concerns around the practicality of this proposal have been clear from the publication of our response to the Joint Committee report almost a year ago. In that time nobody has presented to us any persuasive evidence to suggest that those concerns are not warranted.

On the issues raised by my noble friends Lord Allan and Lord Phillips about regulation, perhaps I may come back to them in writing to clarify the position. I have made a note of the suggestions that have been made.

I have listened, as ever, to all of the noble Baroness’s contributions and I am sure that she will say that our position has not changed since Committee stage, which I accept. However, we are where we are on this proposal. I repeat that no one has come to us to present a counterargument. Certainly if they have come forward, their arguments have not been of a persuasive nature. For those reasons, the Government cannot support Amendment 11 and I hope that the noble Baroness will see fit to withdraw it.

[Baroness Hayter of Kentish Town]

I thank all noble Lords who have spoken and, obviously, particularly the noble Lord, Lord Phillips, for his support and the interesting suggestion about it being in regulations. I congratulate the Government on their consistency. If that is all they have to offer, they may wish to look further.

The amendment relates only to subsection (3). In a situation where it was not possible for the claimant to identify the person who posted the statement, the claimant has given the operator a notice of complaint and the operator failed to respond to that in accordance with regulations, we ask that a notice is posted—it could be just a little red spot—that says “challenged by”.

I am concerned that the Government have met with the internet operators and, with no one else coming forward—we did not know that the meetings were taking place and were not asked to produce extra information—that they have taken the internet operators’ view on this as the one which will guide their hands.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Baroness Hayter of Kentish Town

Thursday 17th January 2013 Grand Committee

[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Baroness for introducing the amendments. I want to revert to the broadening of the scope which was talked about in Clause 13. Again, in the spirit of what has been said before by my noble friend Lord McNally, if that is required and desired, the Government are happy to contemplate it.

Amendment 51A envisages introducing a regulation-making power to set out the specific procedure to be followed in relation to the making of an application for an order under Clause 13(1). We do not believe that this amendment is necessary. Clause 13, as the noble Baroness acknowledged, was introduced in the other place to address the concern that the claimant who had successfully brought an action against the author of defamatory material online may be left in the position of being unable to secure removal of the material. This situation might arise as a result of the fact that an author may not always be in a position to remove the material and the new Clause 5 defence might prevent the website operator being required to do so. The clause, therefore, applies only where the claimant has brought proceedings against the author and is completely separate from the process under Clause 5. As drafted, it enables an order for removal of the material to be made during or shortly after the conclusion of those proceedings, or on a separate application under Part 23 of the Civil Procedure Rules. Part 23 governs applications for court orders and sets out in detail how the process should work, including rules in respect of how an application is to be made, where it should be filed, what information should be included and how it should comply with any relevant time limits, among other matters. To the extent that any supplementary provision might be required, it is the Government’s view that the existing power to make rules of court is entirely sufficient to enable such a provision to be made. A regulation-making power is therefore unnecessary and could perhaps add confusion about the relationship with Part 23 and possibly cast doubt on the scope and applicability of the existing power in the Civil Procedure Rules.

Amendment 51B provides that the removal of allegedly defamatory material from a website and the publication of an apology or correction should not prevent an action for damages being brought. It is not clear how this amendment fits specifically with Clause 13. As I have said, this clause is to address situations where a claimant brings a successful action against the author of defamatory material online but where the author may not be in a position to remove material which has been found to be defamatory from a website. Where the content is removed by website operators in other circumstances—for example, after following the Clause 5 process where the poster chooses not to engage or agrees to removal—there is nothing in either Clause 5 or Clause 13 which would prevent a claimant bringing a defamation action seeking damages against the poster. Clearly, there may be cases where the damage caused by a defamatory statement is so serious that simply having it removed from the website will not provide the claimant with sufficient remedy. In these cases, it is right that the claimant should be able to pursue an action against the poster, and if that is the intention behind this amendment, then we agree entirely with the principle and the sentiment. However, we do not believe this amendment works in conjunction with existing provisions in Clause 13 and, for the reasons I have given, such a provision is deemed unnecessary. Where a statement is removed by a website and the claimant still wishes to pursue an action against the author, there is nothing to prevent them doing so.

In light of the assurances I have given and coming back to the issue of the scope, which the noble Lord, Lord Browne of Ladyton, addressed earlier, I hope the noble Baroness will agree to withdraw the amendments.

[Baroness Hayter of Kentish Town]

I thank the Minister for that. He is right about Amendment 51B; that was the intention. His assurance that although defamatory material has been taken down there can still be an action for damages meets the point that we were trying to raise. On regulations and his reference to Civil Procedure Rules, the problem is the same. To expect an ordinary citizen to know that there are even such things as Civil Procedure Rules, let alone where to find them or what they say, is difficult. When the Government come to look at the guidance and other regulations attached to this, I urge them to look at whether the Civil Procedure Rules may be incorporated, even if they are word-for-word the same. Asking ordinary folk to go through lots of rules or even to know that they exist is a tall order. I will leave that thought with the Minister. I beg to withdraw the amendment.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Baroness Hayter of Kentish Town

Tuesday 15th January 2013 Grand Committee

[Lord Ahmad of Wimbledon]

I would of course be happy to arrange a meeting. The benefit of being in the Moses Room is that your officials are right behind you, and I am sure that they have noted it as I have.

[Baroness Hayter of Kentish Town]

My Lords, as in December I wished the Committee a happy Christmas, maybe now that the Minister is back from Australia I can wish the Committee a happy new year. I thank the Minister not only for coming back from Australia to address us but for his response. I thank also everyone who has spoken, particularly my noble friend Lord Triesman and the noble Lords, Lord Phillips of Sudbury, Lord Lucas, Lord Faulks and Lord Mawhinney, for their support. I am grateful also for the contributions of the noble Lord, Lord Lester, and the noble Earl, Lord Erroll. I am sure that the noble Lord, Lord Mawhinney, does not need reassurance that his summary of the Joint Committee was, as always, spot on and symptomatic of what he did in that committee, focusing straight in on the victim, who often has no recourse to law.

There is a view that somehow the web is less serious than the printed word, but when I was learning my journalism, I was told, “Remember that today’s newspapers are tomorrow’s fish and chips wrappers”. Actually, some printed words are so ephemeral that the web is more serious rather than less serious.

I am still not quite sure what the Minister thinks is a website. Perhaps he will tell us in a moment whether Facebook is a website, whether a Tweet is a website and whether our Lords blog—which I recommend to you all—is a website, because it would be useful to know.

Given that we are in the slightly unusual position of having previously adjourned in the middle of an amendment and having the Hansard for part of it, perhaps I might quote what the noble Lord, Lord Phillips of Sudbury, said on 19 December. He said:

“The disparity of arms between claimant and defendant is nowhere more vivid than in relation to the web operators, many of which are huge multinational companies. They do not do this for fun—they are not like a village notice board. They do it for profits, and mighty big profits … They are the Goliath in the defamatory relationship … and … their impunity is not justified in terms of freedom of speech”.—[Official Report, 19/12/12; col. GC568.]

That is really the nub of what we are talking about. Along with the noble Lord, Lord Mawhinney, I cannot agree with the view of the noble Lord, Lord Allan of Hallam, that, with the web, we are talking just about private speech in a public space. We are talking about a publication, whether it arrives on your iPad, on a laptop or on something else. The issue of anonymity arises more frequently on a website than it does in a publication, which is perhaps why we concentrate on it, but if what the Government are suggesting—the 72 hours, the seven days and then going to court—is accepted, everyone who wants to defame will just go anonymous. Why should they not just go anonymous, knowing that they will basically be beyond the reach of the law?

Some of our amendments to which the Minister has referred are fairly uncontroversial. I would have thought that the “electronic platform” proposal is surely worthy of consideration. We may not have got it right, but I hope that what we have at the end is robust even if it is done by attached guidance. However, I will concentrate on two of these amendments.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Baroness Hayter of Kentish Town

Wednesday 19th December 2012 Grand Committee

[Lord Ahmad of Wimbledon]

My Lords, I am sure that the Committee will agree that, in light of the other contributions that remain to be made and of the time, further debate on Amendment 23A should be adjourned. Perhaps it would be a convenient moment to suggest that we adjourn this debate until Tuesday 15 January at 3.30 pm.

[Baroness Hayter of Kentish Town]

Before we put that to the Committee, perhaps we may take this opportunity to thank the Deputy Chairman and all Members for what they have done so far and wish everybody a very happy Christmas.

Defamation Bill

Debate between Lord Ahmad of Wimbledon and Baroness Hayter of Kentish Town

Monday 17th December 2012 Grand Committee

[Lord Ahmad of Wimbledon]

My Lords, listening to our debate with great attention means that one defines it almost along the line of whether or not you are a lawyer. I am also conscious that we have heard an array of accents, including both Scottish and Northern Irish. I will do my best to explain the Government’s position in whatever accent noble Lords believe mine to be.

As has already been said, and as I am sure noble Lords appreciate, this is an area where the law is still developing. In Derbyshire County Council v Times Newspapers, the House of Lords held that local authorities and government bodies are already prevented from bringing actions for defamation. My noble friend Lord Lester of Herne Hill said that he was involved in that case. Therefore, I speak with a degree of trepidation. However, I heard him express support for the position that I am going to outline. My noble friend referred to the Government’s consultation paper in which we sought views on the suggestion that this principle should be put in statute and on whether it should be extended to a wider range of bodies exercising public functions. A clear majority of the responses considered that wider statutory extension of the Derbyshire principle would not be appropriate and took the view that this would represent a significant restriction on the right of a wide range of organisations to defend their reputation. Indeed, my noble friend Lord Lucas expressed that view. We share that concern. We also consider that a statutory provision would be too rigid and could also lead to litigation and uncertainty over whether particular bodies and functions fell within its scope.

As I have said, the law in this area is still developing and legislation could remove the flexibility that exists under the common law for the courts to develop the Derbyshire principle as they consider appropriate in the light of individual cases. We believe that it is better to allow the courts to do this rather than introduce a rigid and restrictive statutory provision. On that basis, I hope that the noble Baroness, Lady Hayter, will agree to withdraw the amendment.

[Baroness Hayter of Kentish Town]

My Lords, I thank the noble Lord for that response. I also thank the noble Lords, Lord Lucas and Lord Lester, for their contributions. Like the noble Lord, Lord Ahmad, I quake when I hear the noble Lord speak who was the barrister in the case we are discussing. However, I am disappointed by the Minister’s response. To say that this matter is for the courts to decide seems to run counter to everything we are trying to do in this Bill, which is to provide people with a document that will inform them about these issues. Therefore, the noble Lord’s response is very regrettable. I also think it is out of time in that the increasing competition between providers puts one lot of people at a disadvantage compared with another because if a local authority is competing with someone else for the provision of a service, and one side can be sued for libel but not the other, that is a great inequality and it is not a level playing field. I dare say that cases will be brought on that basis. We shall need to return to this issue because there is inequality between different providers of services. However, for this evening, I beg leave to withdraw the amendment.