First Scottish Standing Committee


Tenth Sitting

Thursday 23 January 1986



Clauses 5 and 6 agreed to.



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309 First Scottish Standing Committee Thursday 23 January 1986


[Mr. IAN CAMPBELL in the Chair]

Housing (Scotland) Bill Clause 5

4.30 p.m.

Mr. John Maxton (Glasgow, Cathcart): I beg to move amendment No. 62, in page 5, line 11, after "purchaser", insert "or landlord where the such landlord is a Housing Association".

The Chairman: With this it will be convenient to take amendment No. 63, in page 5, line 13, after "purchaser", insert "or landlord where the such landlord is a Housing Association".

Mr. Maxton: The two amendments are quite important. I accept that the majority of people going to law on a matter of principle will, of course, be tenants of a local authority. As I understand it, the examples quoted by the Minister relate entirely to Glasgow district council. No mention has been made of other district councils or housing associations. However, we are now in a new position where, for the first time, housing associations will be brought in, and there might be aspects of the legislation that some tenants of housing associations might wish to challenge on a matter of principle. Housing associations are not enormous statutory organisations with unlimited funds, so it would be better if their costs were also met by the Secretary of State. It is a small point, but I think that the Minister will agree that large sums of money will not be involved; indeed, it may not involve any sums of money. A local authority is one matter, but, housing associations, especially small community-based ones without large funds, are run by volunteers and employ a few full-time staff. When a matter of principle needs clarification through the courts, those organisations should not be put to any expense. The amendments that the Government pick up the tab for those associations as well as for the tenant or purchaser.

The Parliamentary Under-Secretary of State for Scotland (Mr. Michael Ancram) : The amendment might be based on a misconception. If clause 5 allowed the Secretary of State to give assistance to tenants, if their financial circumstances merited it, I would accept the argument that small housing associations, with relatively few assets, might also merit assistance. There is, of course, a reasonable argument that associations even with a. few houses, have substantial assets, although I accept that in some circumstances those 310 might be difficult to realise. The circumstances in which assistance might be given under clause 5 are not related to need, but to issues of principle if the Secretary of State considers that the case raises a matter of public interest, and he wishes to assist the tenant to determine the case. It might be useful for the Committee to know the type of issue that has arisen in the past. For instance, Glasgow district council challenged the validity of a tribunal's offer and requested it to state a case for the opinion of the Court of Session. Those are the sorts of matters of principle which went back to the fundamental nature of the original legislation. I am not aware of a tenant or purchaser initiating an action against his landlord on a matter arising from the right to buy involving an important issue of principle. It is almost impossible to conceive the circumstances in which such a case might arise. However, I am aware of cases where landlords have raised appeals in the Court of Session which, had they proceeded, would have raised fundamental issues. That is why we propose to take a reserve power to assist tenants. I know of no cases where the roles have been reversed. I know that housing associations have fewer resources than local authorities and I have inquired into how they bear the costs of legal action in matters such as the right to buy. Housing associations are free to decide whether they will take legal action, and in so doing they may use any available resources such as management and maintenance allowances or surpluses. If those resources are insufficient, an association can apply for revenue deficit grant, although my Department is unlikely to agree to RDG being used unless it is satisfied that the association has reasonable grounds for its action. It is unlikely that housing associations will be obliged to spend large sums of money on cases in the Court of Session, and in reasonable circumstances they will receive revenue deficit grant. I think, therefore, that the hon. Member for Glasgow, Cathcart (Mr. Maxton) has misunderstood the main purpose of the clause, and I hope that he will not press his amendment.

Mr. Maxton: It is the Minister who has failed fully to understand the amendment. I accept that there are not many circumstances in which the housing association will initiate the action, but that is not what the clause provides for. It does not refer simply to cases where the action is initiated by the tenant or purchaser; it states: "Where, in relation to any proceedings, or prospective proceedings, to which this section applies, a tenant or purchaser is an actual or prospective party". Therefore, if a local authority—as in the case of the Glasgow district council—were to take an action against a tenant, the Secretary of State could decide to fund the tenant. Although that is unlikely, the clause makes it possible.

Mr. Ancram: The likelihood of such an action involving a matter of principle is remote. I was referring to the sort of case in which the Glasgow district council might challenge the validity of an offer made by a tribunal under the terms of the Act. That would strike at the very root of the legislation and it would trigger the operation of the scheme under clause 5. That scheme 311 is not another form of legal aid for actions by individual tenants as the hon. Gentleman appears to believe. It will operate only in circumstances where a point of principle is at stake.

Mr. Maxton: It would also operate, of course, where the Secretary of State believes there to be other considerations that the Minister has not explained. I appreciate the Minister's point and I accept that the case of Glasgow district council was against the Lands Tribunal. However, I have always believed that in order to get a principle in law clarified, there must be a case against the Crown, an individual or an organisation. The courts do not suddenly say, "We rule X or Y." They rule in favour of one party or another. Therefore, a tenant could take a housing association to the Lands Tribunal or to court and the Secretary of State could rule that his case was a matter of principle that should be taken further than that tribunal or court. Even if the lands tribunal or court does not agree with the tenant, the Secretary of State could fund an appeal by the tenant, in order to test the principle at a higher level. The Secretary of State is unlikely to do it, but the Minister must agree that he could. Under such circumstances, it would be unfair to make a housing association bear the cost. A local authority could perhaps bear the cost—although it should not have to do so—but how could a small housing association, which may have assets but not the necessary cash flow, do so? Its tenants or committee members might have to bear the cost themselves. The Minister talked of a safeguard. Why not apply it to housing associations as well? I hope that he will reconsider that point.

Mr. Ancram: The hon. Member for Glasgow, Carthcart has not raised anything new. It is not the central theme, but it must be accepted that housing associations, as corporate bodies, are likely to have more resources than individuals. As I have said, a housing association could, if necessary, recover its costs through RDG.

Mr. Maxton: The Minister also said that it would be unlikely to get RDG.

Mr. Ancram: No, I did not. The hon. Gentleman should be fair. I said that the Scottish Office would have to be satisfied that a housing association was acting reasonably. I would have been wrong not to qualify it so, and I think that the hon. Gentleman would have expected that qualification. Certainly, the hon. Member for Glasgow, Provan (Mr. Brown) would have been surprised if I had not made it. There are no known cases in which a tenant has raised an issue of principle. Housing associations are not in the danger that the hon. Member for Glasgow, Cathcart suggested, so I hope that he will withdraw his amendment.

Mr. Maxton: The Minister has not made his case, but I wish matters to proceed. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Clause 6

Question proposed, That the clause stand part of the Bill.

Mr. Maxton: Will the Minister explain how the clause fits in with the Local Government Bill, which is going through the House? That details the type of information that a local authority may give to its constituents. One has only to listen to the debates on that Bill and on the right to buy which has existed for the past six years, to know that the right to buy is a highly contentious political matter. 4.45 p.m. The Minister and Conservative Members keep pointing out that many local authorities in Scotland are opposed to the right to buy. However, a local authority will now have to put out publicity for the Government which is against what it stands for and at the same time be barred from putting out publicity about something in which it believes. That is a curious way in which to operate. This afternoon has shown that Government honour is not something that most of us will accept in the future.—[Interruption.] The Minister says, "Come off it". I do not know whether he listened to the statement in the House this afternoon, but anyone who thinks that the Prime Minister can be believed on any issue again must leave the question of their sanity open. Labour-controlled authorities, housing associations—I assume that they are included—regional, police and fire authorities will all now have to advertise the right to buy to their tenants. They must tell those tenants not only about the right to buy but how they have the right to buy, what discounts will be available and what the bribes will be to get rid of these houses. It will all have to be spelt out to the public. Those people have elected a local authority—which Conservative Members tend to forget—that is opposed to the Secretary of State. But the Government are passing legislation through the House barring local authorities from ever, under any circumstance, saying to those people "If I were you, I would not buy that house". One of my hon. Friends said this morning that when a tenant purchased a flat in a high rise block the landlord would have an obligation to point out the pitfalls. If any Labour-controlled authority suggests to a tenant anything that might be inferred by that tenant to mean that that he should not buy—

Mr. Michael J. Martin (Glasgow, Springburn): On a point of order, Mr. Campbell. I did not intend to interrupt the Committee's proceedings, but I have just come from the Floor of the House and the Secretary of State for Scotland rose in an intervention to my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) when a remark was made about the lack of Conservative Back Benchers in the Chamber. He said that Opposition Members in this Committee prevented the Committee from adjourning so that Conservative Members could attend the proceedings in the Chamber. 313 That is inaccurate because this morning there were more Government Members than Opposition Members in Committee. Therefore, this sitting is taking place through no fault of ours. I wonder where we can convey that information to the Secretary of State for Scotland?

The Chairman I am afraid that the Chair has no responsibility for what the Secretary of State for Scotland may say.

Mr. Maxton: That is very interesting. Conservative Members never suggested that the Committee should adjourn before this evening. There was a sittings motion that we should sit later, not that we should adjourn. The Secretary of State is rather inexperienced. I am surprised that he should make such a statement, but I shall ensure that someone on the Floor of the House puts the matter right. Information issued by a local authority suggesting to a tenant that it would be inadvisable to buy his house could be stopped under the Local Government Bill. I read the draft code—

Mr. Ancram: I do not wish to interrupt—[Interruption.] I appreciate that the hon. Gentleman has tactical considerations that require consultation. However, I should be grateful if he would listen to me. I listened carefully to what he said. The clause does not refer to the publication of information as does the Bill that we discussed yesterday on the Floor of the House. We discussed at great length the point referred to by the hon. Gentleman.

Mr. Maxton: The Minister is right. I have read that code of conduct. It is much wider than the Bill and I believe that there could be a clash between what it says and what the Bill provides. When the Government pass a law referring to people's rights, those people should be informed of their rights. In a democracy, it is not right that those who opposed the measure should be unable to continue to say that they did so or unable to offer different information. The Government have a desperate desire to create a state in which they are the only arbiters of what is right, the only body that can issue information and use public money for propaganda, which is unacceptable in a democracy. The hon. Member for Stirling (Mr. Forsyth) shakes his head. The Scotsman printed an article about three weeks ago that the Government intended to set up a team of civil servants to publicise their rates reform. If that is not using public money for political purposes, I should like to know what is. Every speech made by the Minister is full of political references, written by civil servants.

Mr. Ancram: Not those bits.

Mr. Maxton: I apologise to the Minister's advisors because, come to think of it, the political bits could not possibly have been written by anyone with intelligence. The Government seek to stop anyone else producing propaganda, while they use public money all the time to put across theirs.

Mr. Hugh Brown (Glasgow, Provan): The hon. Member for Stirling (Mr. Forsyth) in a seated interjection, asked what this had to do with what was going on in the Chamber. If he sticks around, I shall tell him. 314 The clause is an important one. There is a new section, 9C, which will give the Secretary of State new powers. The notes on clauses make it clear that section 9C will give the Secretary of State more new powers. I am sure that the Minister will say yet again that a recalcitrant authority—perhaps Stirling, Edinburgh or Glasgow—has been obstructive, but the Minister has to make his case on two grounds. First, he must establish that he has required information, records and documents from public authorities in the past and that they have not been provided. Secondly, he must show that information that should be made available to the tenant has not been made available. I presume that in the light of five years' experience the two new powers are obviously necessary because one authority or another has not conformed in the spirit of cooperation by making information available either to the Secretary of State or to the tenant. The Bill makes it clear that the Secretary of State may require an authority "to produce any document: or (b) within such period as may be so specified … to furnish a copy of any document or supply any information." It provides that "Any officer of the landlord designated in the notice for the purpose of having custody or control of the document or in a position to give that information shall, without instructions from the landlord, take all reasonable steps to ensure that the notice is complied with." That is like the press secretary in the Department of Trade and Industry being told to do something without even needing to consult the Minister. No doubt there is a legal constitutional justification for instructing an official of a local authority or a housing association to carry out an instruction without recourse to the authority. Perhaps I am making too much of this and perhaps there is a simple explanation. I draw the Minister's attention to the comment in The Guardian today by its local government correspondent. The article refers to the four associations representing council officials. The correspondent does not refer to the awkward squad of elected representatives. The article states: "the four associations representing council officials in England, Wales and Scotland … warn that newsletters, anti-drug publicity and advice on crime prevention could all come under suspicion". I have received only one comment on clause 6, and that came from Glasgow's housing department which said that "the council may be directed by the Secretary of State (under Section 6) to publicise the right-to-buy and make tenants aware of the new discounts." Can the Minister instruct an official to provide that information on behalf of an authority without recourse to the authority itself? Is the Glasgow housing department right to assume that clause 6 will cover the need to supply publicity? If so, would it not be a gross abuse to require a council to produce publicity on a scheme to which it is opposed? We are talking not about individual rights but about the circumstances in which local authorities should use public money.

Mr. Ancram: I think that the hon. Gentleman is labouring under a misapprehension. The word "produce" does not mean publish. It means to produce to the Secretary of State for his information. I shall explain later why the clause is deemed necessary.


5 p.m.w

Mr. Brown: Yes, but I was referring to subsection (2) which states: "Any officer of the landlord designated in the notice for that purpose". Is "that purpose" to supply information to the Secretary of State?

Mr. Ancram: Yes.

Mr. Brown: Very well. So, is Glasgow wrong in its assumption that clause 6 could be used to publicise the right to buy and make tenants aware of new discounts?

Mr. Ancram: I shall reply to the hon Member for Cathcart first. He would have difficulty relating the provisions of the Local Government Bill to the clause. I assure him that there is no conflict whatever with clause 2 of the Local Government Bill, which was given its Third Reading yesterday. I understand that there will be no conflict with the code of conduct. Some working papers were produced, in consultation with local government officials, and we made it clear that we shall not produce a code of conduct until we have consulted local government organisations. The consultations will not take place immediately, although I understand that there may be a meeting soon. Clause 6 is a narrow power that is designed to provide the Secretary of State with factual information to enable him to exercise his powers under part I of the 1980 Act. I say to the hon. Member for Glasgow, Pro van (Mr. Brown) that such a power is not new. Section 199 of the Local Government (Scotland) Act 1983 already empowers the Secretary of State to require local authorities to make reports and returns and to give him such information as required. That power is limited to local authorities. The new power that is provided by the clause extends to all the right-to-buy landlords but it is narrower than the provisions of the 1973 Act in that it covers only matters referred to in part I of the 1980 Act. The clause is in pursuance of clauses 4 and 5 for the proper exercise of the Secretary of State's powers. To ensure that he exercises those powers reasonably, he may require certain information and the clause provides him with the means of obtaining it from local authorities and from other right-to-buy landlords.

Mr. Hugh Brown: What has been the difficulty until now?


Mr. Ancram: The power relates to clauses 4 and 5 which are new legislation. Section 199 is a wider power that has been used recently. It tidies up matters.

Mr. Maxton: I accept the Minister's explanation and admit that by referring to the Local Government Bill, I was doing a little kite flying. However, I have one or two other questions. Will it be possible for the Secretary of State to request information on the resale of local authority houses? Would it be unreasonable for a landlord to put into the missives that when a person sells the property, he must inform the local authority? I accept that during the time that the discount is repayable, he is obliged to do so. Such information would be useful for developing statistics, and if it remained part of the missives of that house in perpetuity a check could be kept.

Mr. Hugh Brown: I think that we can say that we shall not have a Division on whether the clause should stand part of the Bill. However, has there been some difficulty in the use of existing powers in receiving information? The Minister referred to clauses 4 and 5 and I should like to know whether he has a reason for believing that some local authorities or housing associations may not supply information?

Mr. Ancram: I shall reply briefly to the hon. Member for Provan. There are no signs that that information will not be available but we wish to preserve the position that the Secretary of State will be able to collect information. I am not relating that wish to past experience. The need for the clause is consequent on clauses 4 and 5 and it merely tidies up what could have been a gap or loophole. I am sure that the hon. Gentleman appreciates that it is better to do that in primary legislation than to make amendments later. I say to the hon. Member for Cathcart that clause 6 could not be used to require information on resales, but we have taken steps to request that information from local authorities and we foresee no difficulty. I hope that the hon. Gentleman will support the clause.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Lang.]

Adjourned accordingly at seven minutes past Five o'clock till Tuesday 28 January at half-past Ten o'clock.


Campbell, Mr. Ian (Chairman)

Adams, Mr.

Ancram, Mr.

Brown, Mr. Hugh

Douglas-Hamilton, Lord James

Fletcher, Mr.

Forsyth, Mr.

Lang, Mr.

McTaggart, Mr.

Malone, Mr.

Martin, Mr. Michael J.

Maxton, Mr.

Monro, Sir Hector

Pollock, Mr.

Walker, Mr. Bill