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Lord Swinfen moved Amendment No. 260:


Page 74, line 18, leave out ("a") and insert ("an independent").

The noble Lord said: I beg to move Amendment No. 260 and to speak at the same time to Amendment No. 261. I see that Amendment No. 261A in the name of the noble Lord, Earl Russell, is also grouped with these amendments; no doubt he will wish to speak to that amendment in due course.

The only safeguard given to an introductory tenant who is faced with possession proceedings is that he is entitled to a review of his case. The Bill proposes, however, that such a review shall be carried out by the landlord. Clearly, a review carried out by the landlord who has instigated the possession proceedings is unlikely to be impartial and is certainly unlikely to be seen as such by the tenant.

This amendment suggests that an introductory tenant faced with possession proceedings should be entitled to an independent review by someone other than his landlord. An independent review panel could be made up of lay people from the local community, in a similar

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way to the use of lay people who sit as justices of the peace, school governors or on social security tribunals. It would be possible to ensure that there was one representative from the local authority if this seems suitable. It would also seem appropriate to have tenant representation on such a body.

Given the very strong powers which introductory tenancies will give to local authorities--in essence, the right to evict any tenant with whom they are dissatisfied--it seems vital to me that there is at least some independent safeguard of the tenant's rights. The landlord is unlikely to be seen as giving an impartial review of the case. This may lead to introductory tenants choosing to challenge evictions via the judicial review process, causing expense to local authorities, individuals and, potentially, to the legal aid system, clogging up the court system. Some of this might well be avoided if the tenant felt that his appeal had been considered by a truly independent review panel as I propose in this amendment. I beg to move.

Earl Russell: I support the amendment. In speaking to my amendment, I would not like necessarily to suggest that it is in any way better than that of the noble Lord, Lord Swinfen. I do not intend to push my amendment to a Division, first, because it was drafted at home late on a Sunday night and, secondly, because I have some doubts about attempting to import the common law concept of natural justice into statute.

The point to which I wish to draw attention is the same as that made by the noble Lord, Lord Swinfen; that is, the need for an independent panel for review. It is in effect a judicial panel and somebody is being given something which is certainly in effect a punishment. Judging by much of what has been said about the purpose of the introductory tenancy, it may even be construed to be an intentional punishment.

It is a fundamental breach of the principles of natural justice for anyone to be judge and party in their own cause. The noble Lord, Lord Irvine of Lairg, recently gave a lecture on the judiciary, which attracted a good deal of attention and was the subject of a debate in this Chamber. In that lecture he referred, with some disapproval, to what is commonly taken to be the last case in English history when a judge attempted to strike down the provisions of an Act of Parliament in the reign of King James I. That was done on precisely this ground of natural justice, but in that case it made the Royal College of Physicians judge and party in its own cause.

The clause before us is the absolute carbon copy of the clause which was struck down by the judge in the reign of King James I. Drafting statutes in that way tends to lead Her Majesty's judges into temptation. Not only does the Bill make local authority judge and party in its own cause, it also purports, in Clause 115(2), to free the landlord from all the normal procedural safeguards which are also associated with natural justice. It says,


    "the landlord shall carry out the review in such manner as it considers appropriate".

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That is the same style of drafting to which I have been referring all evening. It says in effect that the landlord may do whatever it likes. But one cannot do that at common law, even if one is permitted to do it by statute. So again it is something which invites the intervention of the courts.

As my noble friend Lady Hamwee pointed out, judicial review can only be concerned with the procedure of a decision. It is a great mistake to legislate in a way which substitutes a judicial review of the procedure for a judicial examination of the merits. That is why we would be so much better advised, as the noble Lord, Lord Swinfen, suggested, to have something which lays down guiding principles which local authorities shall observe rather than purporting to give them an absolute power to do what they like, which is something which, under common law, the courts will not leave to them, in spite of the statute. Therefore it will not achieve the effect it intends. It will bring the legislature and the judiciary into conflict and it will not work.

The noble Lord, Lord Swinfen, has gone most of the way to showing how it should be put right and I hope that the Government will listen to him.

Baroness Darcy (de Knayth): I too support the amendment which will ensure that the review is independent and not carried out by the landlord. That seems to me to be essential if we are to protect the rights of tenants. It is essential that it should be unbiased, and visibly so.

I waited to hear the noble Earl explain his admirably worded amendment. I wondered whether it was the sort of thing one put into statute. However, I agree totally with what he said. I hope that the Minister will agree with the amendments and provide the necessary counterbalance to the strong powers the introductory tenancies give to the landlord. Originally I had intended to say that I hoped that he would accept the amendments or bring forward something of his own at Report. I am not sure that that is not Cloud-cuckoo-land, having heard his reply to the previous batch of amendments. However, I am ever optimistic and hope that he will at least give an encouraging reply.

Baroness Gardner of Parkes: I oppose these amendments. As I read this section of the Bill, I understand that it applies only to local housing authorities or a housing action trust. Therefore we are not talking of private landlords; we are talking about social housing. The setting up of an independent process would be a costly affair and may not work very well.

At the present time local authorities have methods of review for all sorts of things and they call upon serving councillors to sit on those committees. They try to detach themselves completely from any view and deal with the cases in an impartial way. That is very correct. In theory the suggestion of my noble friend Lord Swinfen sounds delightful that one might have people who are on local school boards or those who are helping in some other way in society such as local justices of the peace. That is all very well in theory, but in practice it would take a great deal to set up. It is

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extremely difficult now to get enough people to serve on school management committees and as JPs who are unpaid in this country. These people are already giving a tremendous amount of their time for nothing in order to help the community. It will be very difficult to get them to take on this added responsibility. It could so slow the process down or snarl it up that the whole purpose of the introductory tenancy could be lost. That is a point that we are overlooking.

One of the real arguments in favour of an introductory tenancy is that people will be more likely to get a tenancy of that type much earlier than they might otherwise because it is of an introductory nature and subject to review. I consider that the allocation of points, for example, might enable one to give an introductory tenancy at an earlier stage than a secure tenancy. If one is going to introduce tremendous disincentives and great bureaucracy and make it almost impossible for the local authority to operate the scheme in terms of cost and logistics, I do not believe that it will be wise to do so. For that reason I oppose the amendment.

Lord Swinfen: Before my noble friend sits down, perhaps I may say that I do not want to make everything costly. I appreciate the point that she made. I also appreciate that local authorities have set up reviews already, but do they set them up when they are either the plaintiff or the defendant in a case?

Baroness Gardner of Parkes: I am unable to answer that specifically. I believe that they do, but someone currently involved in local government might be able to give a more accurate answer.

Baroness Hamwee: I intended to raise a question on that very point. As regards school admissions there are appeals procedures. The local education authority will set up the procedure providing, according to my experience in my own authority, a panel to deal with the appeal. My question to the Minister is this: Is there any other situation where the statute calls for a review, using the term "review"? I share with other Members of the Committee a concern that this matter should be dealt with in a proper, quasi-judicial manner.

Earl Russell: I listened with care to the noble Baroness, Lady Gardner of Parkes. I take her point about the difficulty of getting people to go through this process. I cannot help feeling that that argument does not help the Bill. Unless we can get people to do the review work, who are independent of local authorities, the whole procedure of the introductory tenancy cannot work at all. That is a conclusion which the Government may wish to resist. The noble Baroness used at one point the phrase, "slow down or snarl up". In my experience it is much more often speed that snarls you up rather than slowness.


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