Lord Foster of Bath
Main Page: Lord Foster of Bath (Liberal Democrat - Life peer)Housing and Planning Bill
Lord Foster of Bath Excerpts
Lord Beecham
My Lords, I shall speak also to Amendment 8ZA. Both amendments stem from the 20th report of the Delegated Powers and Regulatory Reform Committee, published just last Friday—hence the fact that they are manuscript amendments. Both the clauses affected, Clauses 13 and 22, have attracted considerable criticism from the committee. They relate to the introduction of banning order offences, about which the committee expresses serious concerns.
A ban would arise following conviction for a banning order offence and would prevent the relevant person from letting or engaging in letting agency or management work, as a result of an order made on the application of a local authority. It would also ban the relevant person from holding an HMO licence and allow him to be placed on a database. However, the Bill does not define the offence that would allow the Secretary of State to describe its nature, the offender’s characteristics, the place where it was committed, the court passing sentence and the sentence itself by regulations subject to the negative procedure—with no restriction whatever on the character of the offence, which need not be related to housing issues at all.
In a memorandum, however, a wide range of offences is cited as possibly relevant. The committee sensibly pointed out that these offences could be listed in the Bill with a power to amend, if necessary, by secondary legislation. The committee averred:
“We consider it inappropriate that the determination of the offences that are to constitute ‘banning order offences’ should be left entirely to the discretion of the Secretary of State and with only a modest level of Parliamentary scrutiny”.
The committee recommended removing Clause 13(3) and replacing it with a provision listing offences constituting banning order offences, with a delegated power to amend by the affirmative procedure.
The amendment tabled today defines—very narrowly, it must be said—the grounds for a banning offence, and requires parliamentary approval for the relevant regulations. The grounds may be considered too narrow. I hope that the Minister will look at the issue and come back on Report with a more developed position in which parliamentary approval for any new offence is required.
Amendment 8ZA to Clause 22 relates to the provision for financial penalties for a breach of a banning order which may be imposed by the local housing authority. Subsection (9) requires the housing authority to have regard to any guidance given by the Secretary of State in respect of the exercise of its function under the clause. The amendment simply requires that such guidance should take effect only under the affirmative procedure. The amendment to Clause 22 relates to the provision in the clause in respect of the financial penalties for a breach of the banning order which may be imposed by the local housing authority.
The Delegated Powers Committee noted that Clause 22 allows a housing authority to impose a penalty of up to £30,000 for the breach of a banning order and points out that this is an alternative to a criminal prosecution. Unlike in the latter procedure, it will not be necessary for the authority to prove its case beyond reasonable doubt, such that, to quote the committee,
“this clause empowers an authority to act as if it were prosecutor, judge, jury and executioner”.
The provision in subsection (9) requiring the authority to have regard to the guidance means that such guidance will be expected to be followed unless there are cogent reasons for not doing so. The committee concluded that, given the nature of the power conferred on local housing authorities—which would deny the accused access to adjudication by a court as to whether a criminal offence had been committed—the guidance is of great significance, and accordingly that it should be laid in draft and not come into force with the affirmative procedure.
These observations essentially foreshadow the amendment to be moved later by the noble Baroness, Lady Gardner of Parkes. I think that we are at one on this: indeed, there was, I think, wide agreement around the House at Second Reading that there are far too many areas that are to be covered by regulation with no evidence that any of this will be presented to us as the Bill goes through. It may be ready for other parts of the Bill but there is nothing today on these matters. Unless we have an assurance from the Minister that we will be able to see regulations before Report, the House should take a strong view in support of the amendment which I now move.
Lord Foster of Bath (LD)
My Lords, I rise in support of the amendments that have just been introduced. At Second Reading I welcomed some parts of the Bill but expressed concerns about some others: about the lack of detail, the large number of amendments laid at the very last minute in another place—again, without an opportunity for proper scrutiny—and the 30-odd additional powers given to the Secretary of State. Like many other noble Lords, I very much welcome the Minister’s commitment and promise to do all that she can to ensure that we get details of the various regulations, at least in draft form, as early as possible.
I think that many noble Lords, however, will share my concern that, despite the Minister’s promise, it seems increasingly likely that many of those draft regulations—even if we get them before we finish consideration of the Bill—will not come in time for the relevant amendments in Committee, and it may well be that some of those draft regulations will come after we have finished all stages of our deliberations in the House.
Viscount Eccles (Con)
My Lords, I was a colleague of my noble friend Lady Gardner of Parkes on the Delegated Powers Committee for a while. My experience on that committee was that it thought very carefully before making a recommendation. In general, it has been the House’s experience that the committee’s recommendations, particularly the more severe ones, are to a large extent accepted. I hope that my noble friend on the Front Bench will be able to persuade her colleagues that the recommendations we have been discussing—Clauses 13 and 22 come to mind—need to be taken very seriously and responded to in a positive manner, not pushed off into any form of long grass.
Lord Foster of Bath
My Lords, I repeat my congratulations to the noble Baroness on being the first in your Lordships’ House to lay an amendment on this very important issue. I echo all the words of my noble friend Lord Shipley, although he left one issue rather hanging in the air: the current state of play with the drafting not only of regulations in respect of Clause 13, which we are discussing, but of all others. Perhaps in her reply the Minister will be kind enough to inform the House what her understanding is of the state of play with the drafting of legislation which affects the Bill.
Baroness Williams of Trafford
My Lords, I understand loud and clear the premise of the amendment of my noble friend Lady Gardner of Parkes, which proposes that the scheme for making the banning orders would not come into force until a year after the draft regulations setting out the nature and characteristics of banning order offences have been published. I understand the point about the laying of regulations and responding fully to the comments of the DPRR committee, which noble Lords have made loud and clear. However, I make it clear that people who have been convicted of offences that are in the nature of a banning order offence before the legislation comes into force cannot be subject to banning orders. That is quite important in the context of the discussion we are having. The legislation will therefore not apply retrospectively.
As I have said before, we have not included the specific offences in the Bill because we want the flexibility to add further. However, I can confirm that we will consult fully with interested partners on the matters that will constitute banning order offences before the regulations are laid in this House. I have set out the timetable for the consultation and for responding to the DPRRC. I hope to do that during Committee stage, but in any event we will definitely do it by Report.
I cannot remember which noble Lord—it may have been the noble Lord, Lord Foster—asked if we could have sight of what regulations there might be, when we might expect them and why we might not have them in a timely manner. I am more than keen to get what information I can to noble Lords to prevent some of the obvious concern that arises out of the Bill coming forward time and again, which it will—I cannot blame the House for doing that. The noble Lord, Lord Kerslake, is not in his place, but I point out that we are attempting to do that as fully as we can throughout the course of the Bill.
I hope that reassures my noble friend and other noble Lords that we do not intend to implement the banning order provisions in the Bill without fully considering the views of the interested parties on the nature and characteristics of such offences. We began that process last summer when we published our discussion paper on tackling rogue landlords, which noble Lords may or may not have seen, and we will develop them in further detail through further consultation later in the year. I therefore ask my noble friend to withdraw her amendment.
Baroness Williams of Trafford
Yes, it would. May I clarify that in writing?
Lord Foster of Bath
I wonder if the Minister can help me because I am now slightly confused. If the local authority is expected to use funds upfront to make repairs and bring a property up to suitable standards, and the only way it can recoup them is through a charge—whether a first or a second charge—is it not the case that that money can be realised to the council only when the property is sold, which may be a considerable time after the local authority has incurred the costs?
Baroness Williams of Trafford
That might be the case. The point is that the local authority could recoup the costs. I think the premise of all the questions is the local authority not being out of pocket because of its obligations to the tenants. The noble Lord, Lord Greaves, is shaking his head so I will let him intervene.
Lord Kennedy of Southwark
My Lords, Amendment 17, which is in my name and that of my noble friend Lord Beecham, seeks to extend the services of the Housing Ombudsman to the entire private rented sector. Following a successful pilot scheme in London, the Government decided to proceed in that manner. Ombudsman services are available for a variety of matters. They have proved highly effective and seek to resolve complaints having investigated the issues at hand independently and in a less confrontational way than proceedings in court can be.
At present, the Housing Ombudsman provides ombudsman services to housing organisations that are registered with it. The service is free, independent and impartial. It has two classes of membership: a mandatory membership, which includes all bodies registered with the Homes and Communities Agency; and a voluntary membership, which includes landlords and letting agents in the private rented sector who want to provide a good service to their tenants and who also have, and wish to retain, their good reputation.
My amendment seeks to extend the service on a trial basis to cover all disputes between landlords and tenants in the private sector in the Greater London area. It provides that the trial would last for between six and 12 months and that subsequently, within three months of the ending of the trial period, a report must be laid before Parliament with any statement the Secretary of State thinks appropriate about the extension of the scheme. That could be anything from welcoming the trial and extending the scheme to concluding that it was not a success and ending it there. The Secretary of State has complete flexibility in this regard. If it is deemed to have been a success, we have also included in subsection (4) of the proposed new clause the power to extend the scheme to cover the whole private rented sector in England. This is a sensible and proportionate measure and amendment, which I hope will receive a positive response. I beg to move.
Lord Foster of Bath
My Lords, we are being asked in this amendment whether we think there is a need for further protection for tenants in the private rented sector. I suspect that I can guess the Minister’s response, although I hope I will be proved wrong. The Minister will point out that there is already a large amount of legislation to protect us from—I hesitate to use the phrase—“rogue landlords” and that further strengthening of that is to come, and that there is protection as regards retaliatory eviction against people who run “beds in sheds”. The Government’s own website lists a large number of tenants’ rights, which include the rights to,
“live in a property that’s safe and in a good state of repair”,
to have your deposit protected, to,
“challenge excessively high charges, know who your landlord is, live in the property undisturbed, see an Energy Performance Certificate … be protected from unfair eviction and unfair rent”,
and to have a written agreement if the tenancy term is fixed for more than three years. The Minister will no doubt point out, rightly, that some councils already have an accreditation scheme; she will point to the excellent Private Rented Sector Code of Practice that was developed on behalf of the Government by the Royal Institution of Chartered Surveyors back in 2014. She may talk about the trade bodies that many residential landlords associations have, and as a fallback she will also of course refer, rightly, to the county court mediation service.
On first sight, given that long list, it may appear that there is no need for further protection for tenants in the private rented sector. However, noble Lords will be aware that in a number of the areas I have referred to there are ongoing problems. For example, after the list of rights that appear on the Government’s website, a section then tells you what to do if you feel that you are not able to exercise those rights. It suggests that you should first complain to the landlord; failing that, you should complain to one of the recently set up “designated persons”—that is, an MP, a councillor or one of the various tenant panels; and finally, if all that fails, you should go to your local council. Notwithstanding the responsibilities in some areas—but not all—that local councils have, as most noble Lords will be aware, many councils simply do not have the resources and expertise sufficiently to deal with the wide-ranging types of complaints that will and do come forward. The county court mediation process has of course been successfully used on a number of occasions, but there is a problem, due to various legal arguments as to whether private sector landlords are defined as “suppliers”. Can the Minister tell us whether, if landlords are not defined as suppliers, that particular problem means they will fall outside the remit of that mediation service?
The Earl of Lytton
My Lords, this series of amendments has raised some very interesting points. At Second Reading, I suggested a means whereby prospective tenants might get access to information on landlords who were signed up to a reputable body with established standards that it imposed on its members, and with current and valid membership of a dispute resolution and redress scheme. I am told that there is no such facility. My thought was to bring out the best and to lead from the front with the positives rather than try to deal with the negatives and, in so doing, squeeze out those rogues we have heard about. It was suggested to me by a residential managing agent of my acquaintance that it would be a bit like Checkatrade or TripAdvisor, particularly if it had user or customer—that is, tenant—feedback built into the system. However, I cannot see that that sort of thing can work by compulsion.
I am not an advocate of a compulsory scheme, as proposed by noble Lords in some of the amendments. It would have large costs; it would be readily circumvented, especially by the rogues; and it would suffer from a measure of disregard through ignorance among the 1.5 million one-unit property landlords. I tend, therefore, towards the solution of the noble Lord, Lord Flight, but, again, with some caveats. I would particularly like to know what proposed new paragraph 27A(2)(a) means in terms of the word “category”, and, with apologies to him, where Airbnb fits into the framework. The Government have already moved to facilitate this trend, which may be here today and gone tomorrow. How, therefore, do you keep track of that as a “category” in terms of art? A holiday let today may be an assured shorthold tenancy tomorrow, or vice versa. I see great practical problems in this regard.
There is, however, another problem about candid declaration, if one is going down this road. How frequently, given this quite rapid churn in the system, do you have to trawl for the information to ensure that it is bang up to date? What happens when something that has planning consent for, for example, holiday lets turns out to be on an 18-month assured shorthold tenancy, potentially in breach of planning control? For that matter, what happens when it operates in the other direction? There could be issues to do with planning or potential breach of private contract, and I wonder who gets to see and use the information garnered by this process. There is quite a quite dangerous mix of stuff here, with all sorts of people coming in with different motives. The truth is that, over many years, housing has become commoditised. It has gone beyond being the roof over your head and the security for your family; it is now an investment vehicle, a pension pot and a place to park a significant sum safely where you can manage it and see what is happening, as opposed to subcontracting it to somebody who manages portfolios on the stock exchange, where you may have less control. That brings all sorts of different motivations and methods of managing, owning and occupying property.
I said earlier that I would hesitate, if I were a local government official—which I am not—to delve into this issue. It has very significant resource implications. I still tend, therefore, to the amendment of the noble Lord, Lord Flight, but it has a number of holes and would provide far from perfect coverage. That said, we are beginning to drill down and head in the right direction, which is somehow to find a method whereby people will voluntarily sign up because they see it as being in their interests to do so—because they want to be seen as the good guys and the providers of quality, and not to be associated with the rogues about whom we have heard so much today.
I hope the Government will feel that there is merit in that. Perhaps with one or two tweaks—a combination of some of the things discussed in this group of amendments—we could end up with something of long-term benefit that would defuse some of the adversarial nature of what we have been talking about, which is corrosive to the sector and to relationships between landlords and tenants and ultimately may end up leading us around the houses—excuse the pun—several times without achieving what we need: the long-term betterment of the landlord-tenant relationship in the private rented housing stock.
Lord Foster of Bath
My Lords, we seem to be discussing two slightly separate issues in this group of amendments. The first is whether or not we need to have a register of all private sector rented landlords, and I certainly believe that we need to have that. As my noble friend Lord Greaves made very clear, if we do not know who owns a particular property or who is its landlord, it is very difficult to take enforcement action against them. It is also very difficult, as the noble Lord, Lord Flight, has pointed out, for a number of bits of government legislation to be effectively enforced without having such a register—for example, the requirement for landlords to vet the immigration status of their tenants.
Amendment 27 from the noble Lord, Lord Beecham, proposes a mandatory register and suggests that the way of filling the data in it is by requiring all landlords to sign up to it. As the noble Lord, Lord Flight, has pointed out, there are some difficulties with that: those landlords who are not particularly good, those who are on the border of being rogue landlords, are not likely to bother to provide the information. The noble Lord provides an alternative means of filling the data sets: using the form that is initially sent in for registering for council tax, although, as my noble friend Lord Greaves has pointed out, that is done by very many tenants only once in a blue moon.
So there are problems with how we fill the data set, but what is most important is that we hear from the Minister whether it is the Government’s view that we should be having a national database. Whether it is run at individual local authority level or nationally I am not that concerned about at this stage, but it is important to know what the Government’s thinking is about having a database of all private sector landlords. Then perhaps we could get together from all sides of the House to work out the details of how we could fill the data set and ensure that people registered appropriately.
The second issue is local authorities operating an accreditation or licensing scheme. There is a straightforward difference between Amendment 18 from the noble Lord, Lord Beecham, and my noble friend’s Amendment 33A. My noble friend suggests that this should be voluntary and local authorities can decide whether or not to do it, while the noble Lord, Lord Beecham, is suggesting that all local authorities must do it. I make it clear that I side entirely with my noble friend. It is right and proper that local authorities do this, but it is also important that we recognise that some local authorities have already found ways of doing it; across many parts of London there is already such a scheme, and other councils—for example, by using an Article 4 direction—have been able to do that.
Still, it is important that we treat these two issues as separate: first, with regard to the list of all private sector rented landlords so that we can ensure that legislation that we pass in your Lordships’ House will be enforced; and, secondly, that we allow discretion to local authorities to decide how best they wish to operate in the best interests of the people they seek to represent in local authority areas.
Baroness Gardner of Parkes
My Lords, I remind noble Lords that this issue came up earlier under the Deregulation Bill. I was very opposed to the fact that they threw out all rights to register people who were living in these places. It came up, in particular, in relation to Airbnb. I divided the House and we lost the issue. Westminster Council had been prepared to register people even at 24 hours’ notice so that it could know who was occupying, not only as a landlord but who was living in the place. This was rejected. I found it extraordinary that, at a time when New York and Paris were bringing in this regulation, we were deregulating it. It went through on the Deregulation Bill and it should be drawn to the attention of noble Lords again. It seems to be in total conflict with what the House carried at that time, against what I was hoping, which was more like what the noble Lord, Lord Foster, has just suggested.