Housing and Regeneration Act 2008 (Consequential Amendments to the Mobile Homes Act 1983) Order 2011

Lord Scott of Foscote Excerpts

Wednesday 2nd March 2011 Grand Committee

[Lord Avebury]

My Lords, I am most grateful to the Minister for her careful explanation of the terms of the three orders. I endorse the tribute that she paid to the noble Lord, Lord Graham of Edmonton, who has fought for the rights of people living in mobile homes for at least the past 25 years and probably many more. Going back to the Mobile Homes Act 1983, he has always been at the forefront of the struggle to give mobile home dwellers the same rights in disputes as people who live in conventional housing. The orders accomplish that. As the Minister explained, they also extend the provisions of the 1983 Act to people living on Gypsy and Traveller sites so that they enjoy the same protections as have hitherto been enjoyed by non-Gypsies. I should like to raise only a couple of points on these aspects of the orders.

In the amendment of Schedule 1 order, the definition of Gypsies is taken from the Caravan Sites Act 1968, into which it had been copied from the Caravan Sites and Control of Development Act 1960. The Act states that,

“‘gipsies’ means persons of nomadic habit of life, whatever their race or origin”.

I think that the Minister is aware that in the case of Wrexham County Borough Council v Berry in 2003, the Court of Appeal held that Mr Berry, who had retired because of ill health and was no longer nomadic, was not a Gypsy according to the statutory definition. The Government at the time acknowledged that a new definition was needed, and the formulation with which they came up, in paragraph 15 of ODPM Circular 1/2006, was that,

“‘gypsies and travellers’ means … Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently”.

Secondly, the residential property tribunals order provides that most disputes other than possession actions on 1983 Act sites, including local authority Gypsy sites, formerly dealt with by the county court or an arbitrator, are to be dealt with by the RPTs. As the Minister has explained, the average cost of an application to the RPT is estimated at £150, compared with £4,000-plus for presenting or defending a case before the county court. In the consultation with Gypsies and Travellers, the Government undertook to ensure that Gypsies and Travellers were provided with assistance in presenting their case. Not surprisingly, the overwhelming majority of respondents to the consultation favoured the use of RPTs, with only a handful supporting the other two alternatives—the retention of the county court's jurisdiction or the creation of a dedicated tribunal dealing with park homes and Gypsy site cases, other than cases related to termination proceedings.

The Government, who had agreed that compulsory arbitration clauses should no longer have effect as they appeared to favour site owners, appear to have left a loophole in this order. In paragraph 7.8 of the Explanatory Memorandum, it is said:

“Where an agreement specifies that a dispute is to be determined by an arbitrator that requirement will not have effect and instead the disputes will be determined by a Residential Property Tribunal”.

Sure enough, the order provides that in new Section 4(5) of the 1983 Act, if the owner and occupier have entered into an arbitration agreement before the question arose, a tribunal has jurisdiction to determine the question and entertain any proceedings arising instead of the court—and in this case the tribunal would normally be the RPT. But when the sequence is reversed, with the question arising before the agreement, new Section 5(1)(d), in the interpretation clause, says that in that context “tribunal” means the arbitrator. Presumably, if a question arises other than an application by a site owner to terminate an agreement, which is still to be determined in the county court in all circumstances, the occupier would be advised not to accept an arbitration agreement, so that it would be extremely rare for those questions to be determined by the arbitrator rather than the RPT. But why did the Government find it necessary to make this difference in the order between questions that arise before and after an agreement? The Explanatory Memorandum is silent on the matter, and I would welcome some elucidation by the Minister.

[Lord Scott of Foscote]

My Lords, I shall say just a few words about the arrangements made by these statutory instruments regarding the so-called transit pitches. However, I must make a comment on what the noble Lord, Lord Avebury, has just said on the nomenclature. Years ago, when I was at the Bar, I got involved in a case involving some children who had been taken from their mother and secreted in some caravans where some Gypsies resided. When the case eventually reached court and I was cross-examining, and I said, “I don’t know why you’re so upset, because my client too is a Gypsy”, the answer was one of scorn. I was told, “He’s not a Gypsy—he’s nothing but an Irish tinker”. But he was certainly a Traveller. One has to be careful about who one is calling a Gypsy, because the expression does not necessarily extend to all nomadic Travellers who live in mobile homes and caravans.

Be that as it may, I shall make some remarks about the arrangements made for the so-called transit pitches. These are defined in the statutory instrument as,

“a pitch on which a person is entitled to station a mobile home … for a fixed period of up to 3 months”.

As I understand it, these transit pitches are needed by local authorities—this applies only to local authorities—because from time to time there are eviction orders made against Gypsies/Travellers who have been stationing their caravans or mobile homes on private land; the landowner has obtained an eviction order so they have to move—and the question is where they can move to. The local authorities want to have available sites—I am speaking as a matter of belief, and I must be corrected by the Minister if this is wrong—where they can be decanted from the site from which they have been evicted as an emergency matter, hence the need that the local authorities’ transit pitches should not be permanently occupied. The distinction is between permanent sites and transit sites.

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[Baroness Hanham]

I am listening very carefully.

[Lord Scott of Foscote]

If the noble Baroness can listen at the same time as being spoken to, she is a remarkable lady.

These are points that the Minister’s department should consider in connection with this statutory instrument before treating it as satisfactory in its present form. I saw this before—perhaps I should have said that I am a member of the Merits of Statutory Instruments Committee. I remember reviewing this and raising the points that I have raised this afternoon when the Select Committee considered this instrument. I do not know whether the secretariat of the Select Committee communicated the points I made to the department; it may not have done, but if it did, the points will be somewhere on file in the department. If it did not, the department needs to consider them and consider improving the statutory instrument by withdrawing it and redrafting. That, I remember, was done before the election by the previous Government when the Select Committee had objections to the way a particular statutory instrument was phrased and it led to a meeting for which the Minister, Mr Jack Straw, came to this part of the Palace of Westminster. He had a meeting with the chairman of the Select Committee, his officials and me, where we worked out a satisfactory wording, and the statutory instrument was withdrawn and relaid and went through in that satisfactorily amended form. I respectfully suggest that something similar needs to happen to this statutory instrument, because I do not believe that it is going to be satisfactory as it is now drafted.

[Baroness Whitaker]

My Lords, I share the pleasure of the Gypsy, Roma and Traveller communities that the long-standing source of discrimination and harm caused by their lack of equal tenure rights on mobile homes has been put right by these orders. I congratulate the Government on the orders, but, as has been said by the noble Lord, Lord Avebury, and the noble and learned Lord, Lord Scott of Foscote, there are problems and I, too, am surprised that the Merits Committee did not make more of them.

I want to add a few words on two provisions. The first, the outdated definition explained by the noble Lord, Lord Avebury, which was not flagged up in the consultation, would exclude a large number of Gypsy, Roma and Traveller residents—because, for instance, they want their children to have a continuous education, or they need regular healthcare—from the rights provided in the order. Two-thirds of the Gypsy, Roma and Traveller community live in settled accommodation from time to time at least. I really think that this must be put right. Could guidance do it? I do not see how it could, but what does the noble Baroness say?

The second provision that I want to comment on effectively excludes all possessions actions from the last resort of justice at a court of law, as the noble Lord, Lord Avebury, said. I had thought that the Government’s intention was to drop the idea of arbitration being the final stage, so that everything could go to the residential property tribunals, with their last resort being the courts. The weakness of the order as it stands, as far as I understand it, is that the local authority can insert an arbitration agreement in contracts as a device to avoid any possibility of court action. I do not think that that is fair either, and that was not our intention when we moved the amendment that eventually brought this order about. I submit that this, too, needs amendment.

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[Baroness Hanham]

Let us go back to possession. Only a court can grant possession, so the tribunal proceedings would not deal with possession. It is always dealt with in the courts. My previous remarks referred to termination, where, if there was no agreement by the resident, it could go to court. By both routes it can end up in court, but with possession it starts and is completed in court. You cannot have possession that does not go through the courts.

I was fascinated to learn that the noble and learned Lord, Lord Scott, was on the Merits of Statutory Instruments Committee. The way in which it is laid out, there were no challenges from the committee—I am sorry, from the JCSI—on this matter. My advice is that there is no need for a notice period to be specified, because the Caravan Sites Act 1968 already provides that the occupier on quitting early must give four weeks’ notice. That requirement has not been changed. Terms of occupation will be set out in a written statement, which will be given to the occupier who is coming on for three months.

[Lord Scott of Foscote]

These statutory instruments provide that the occupier has to give four weeks’ notice if he is terminating an agreement relating to a permanent site. The provision relating to a transit site does not include any requirement for the period of notice. That distinction must mean something—it must mean that no period of notice must be given.

[Baroness Hanham]

All I can say is that in the consultation local authorities said that in practice they did not expect occupiers of transit pitches to give much or any notice. The question was how much notice they had to give on departure from the pitch. So if they take up to three months or if they have a three-month agreement or if they have four weeks, it does not matter whether they give notice or not; they can just tip off. I am sorry if I am misunderstanding you.

[Lord Scott of Foscote]

Forgive me. These statutory instruments, if brought into effect in the terms in which they are now cast, constitute the law. What the practice is between many local authorities and many occupiers of these sites is another matter. This constitutes the law and it needs to be understandable and coherent as the law. At the moment, Chapter 4, which deals with permanent sites, says that the occupier must give four weeks’ notice; Chapter 3, which deals with transit sites, says simply that written notice must be given without any reference to any period.

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[Baroness Hanham]

My Lords, my noble friend Lord Attlee has made a proposal to noble Lords that, since this clearly needs sorting out legally, I should undertake to write to all Members of the Committee with a legal answer and that we will not have the order moved on the Floor of the House until noble Lords have seen that and are satisfied with it.

[Lord Scott of Foscote]

I am very grateful. That is fine.

[Baroness Hanham]

I think that we have now dealt with the issues. Thank you.

[Lord Scott of Foscote]

Forgive me, but there was another important point on paragraph 4 of Chapter 3.

[Baroness Hanham]

Could we cover the whole lot in the same letter? I shall just say, quite mournfully, that it would be really helpful, where there are clearly legal points, to have notice of them. I would have ended up not looking quite so unprepared and noble Lords would have had an earlier answer.

[Lord Scott of Foscote]

If the Minister, or whoever deals with these things at the department, wants to talk to me about it, that is fine.