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Lord Hardie: My Lords, as has been observed, the amendments are intended to allow orders to be suspended while appeals are considered. As the noble and learned Lord, Lord Mackay of Drumadoon, has said, the present position in relation to summary appeals is that there is automatic suspension of the order pending the appeal. That was the reason for inclusion in the Bill of Clause 20(10) which specifically keeps the order in effect pending disposal of the appeal. There is no need for any exceptions to Clause 20(10) because if the subject of the order wishes to complain about its effect he may at any time return to the sheriff on a summary application under Clause 20(7)(b), even when the case is subject to appeal. That would be quicker, if he were able to satisfy the sheriff that the order ought to be revoked or varied.

The other difficulty about permitting the Appeal Court to make an interim suspension of the order is that the sheriff will have heard the evidence relating to the granting of the order. As regards interim suspension of the order before the Appeal Court, I anticipate that one

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will be dealing with an ex parte application, unless the court was to look at the evidence. In that case, one might as well have a full hearing.

Keeping the order in force is not a risk to the subject of the order. One must start with the premise that the order was made on the basis of justifiable evidence which persuaded the sheriff that it ought to be made. The sheriff will have made the order, which he considers will enable the subject to behave normally, in the context of an antisocial behaviour order, or, in the case of a sex offender order, will require the subject to do something or refrain from doing something in order to protect the public.

During the Committee discussions, the noble and learned Lord, Lord Mackay of Drumadoon, suggested that there might be an occasion when it became evident that an applicant had been hoodwinked by a group of alleged victims into seeking an order, but there was a delay in getting the matter to a final appeal hearing. In such cases, the applicant or the person against whom the order was made could apply to the original sheriff for the order to be revoked. In my submission, that would be the appropriate way to proceed. In those circumstances, I invite the noble Lords to withdraw the amendments.

10.30 p.m.

The Earl of Mar and Kellie: My Lords, despite the reassuring words of the noble and learned Lord, I still believe that there is a possible risk of injustice. That is difficult to quantify. However, I seek leave to withdraw my amendment, although I prefer the wording in Amendment No. 56.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 56:


Page 17, line 22, at end insert ("unless it is suspended by the Sheriff Principal or the Court of Session").

The noble and learned Lord said: My Lords, before I decide whether to follow the route taken by the noble Earl, I wish to ask the noble and learned Lord the Lord Advocate a question. Do I understand him to suggest that the provision of Clause 27(b) would allow the sheriff and/or the sheriff principal and/or the Court of Session to vary an order pending the disposal of an appeal which had been taken? If so, I respectfully suggest that it might be sensible to clarify that on the face of the Bill. If he were prepared to consider that, it would not be necessary for me to test the opinion of the House on my amendment. If one looks at paragraph (10), it states that,


    "any order made in the application shall continue to have effect pending the disposal of the appeal".

As I understood what the noble and learned Lord was saying a few moments ago, notwithstanding those fairly peremptory words, under subsection (7)(b), they fall to be qualified to enable a new summary application to be lodged, which, on the noble and learned Lord's estimation, could be disposed of more quickly than an appeal might be. If that is correct, it seems to me that it

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should be clarified. As I say, if there were an undertaking to do so, I should not seek to press the amendment.

Lord Hardie: My Lords, in the light of what has been said, I shall agree to consider this matter and either write to the noble and learned Lord or come back with something at a later stage. However, that must be taken in the light of the commitments given in Committee that there is no promise. However, I certainly promise to write to the noble Earl and the noble and learned Lord.

Lord Mackay of Drumadoon: My Lords, I am grateful for that willingness to undertake reflective thinking and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Offences in connection with breach of orders]:

Lord Hardie moved Amendment No. 57:


Page 18, line 21, after first ("relation") insert ("to an order under section 19(4)(a) above and").

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 58:


After Clause 21, insert the following new clause--

Anti-social behaviour as ground of eviction

(".--(1) Schedule 3 to the Housing (Scotland) Act 1987 (grounds of eviction in relation to secure tenancies) shall be amended in accordance with subsections (2) and (3) below.
(2) For paragraph 2 there shall be substituted the following paragraph--
"2.--(1) The tenant, a person residing or lodging in the house with the tenant or a person visiting the house has been convicted of--
(a) using or allowing the house to be used for immoral or illegal purposes; or
(b) an offence punishable by imprisonment committed in, or in the locality of, the house.
(2) In sub-paragraph (1) above "tenant" includes any one of joint tenants and any sub-tenant."
(3) For paragraph 7 there shall be substituted the following paragraph--
"7.--(1) The tenant, a person residing or lodging in the house with the tenant or a person visiting the house has--
(a) acted in an anti-social manner in relation to a person residing, visiting or otherwise engaging in lawful activity in the locality; or
(b) pursued a course of anti-social conduct in relation to such a person as is mentioned in head (a) above,
and it is not reasonable in all the circumstances that the landlord should be required to make other accommodation available to him.
(2) In sub-paragraph (1) above--
"anti-social", in relation to an action or course of conduct, means causing or likely to cause alarm, distress, nuisance or annoyance;
"conduct" includes speech and a course of conduct must involve conduct on at least two occasions; and
"tenant" includes any one of joint tenants and any sub-tenant."

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(4) For Ground 15 in Schedule 5 to the Housing (Scotland) Act 1988 (eviction on ground of use of premises for immoral or illegal purposes etc.), there shall be substituted the following--
"Ground 15
The tenant, a person residing or lodging in the house with the tenant or a person visiting the house has--
(a) been convicted of--
(i) using or allowing the house to be used for immoral or illegal purposes; or
(ii) an offence punishable by imprisonment committed in, or in the locality of, the house; or
(b) acted in an anti-social manner in relation to a person residing, visiting or otherwise engaging in lawful activity in the locality; or
(c) pursued a course of anti-social conduct in relation to such a person as is mentioned in head (b) above.
In this Ground "anti-social", in relation to an action or course of conduct, means causing or likely to cause alarm, distress, nuisance or annoyance, "conduct" includes speech and a course of conduct must involve conduct on at least two occasions and "tenant" includes any one of joint tenants."
(5) No person shall be liable to eviction under paragraph 2 or 7 of Schedule 3 to the Housing (Scotland) Act 1987 or Ground 15 in Schedule 5 to the Housing (Scotland) Act 1988 as substituted respectively by subsection (2), (3) and (4) above in respect of any act or conduct before the commencement of this section unless he would have been liable to be evicted under those paragraphs or, as the case may be, that Ground as they had effect before that substitution.").

The noble and learned Lord said: My Lords, this new clause is designed to allow for tougher action against drug dealers and other criminals by extending the grounds for eviction to cover the behaviour of visitors to the property by providing that it will no longer be necessary to prove actual nuisance or annoyance, but simply the likelihood of nuisance or annoyance; and by extending the grounds to cover criminal acts in the locality of the house, not just within the house itself. In these respects, it will bring Scotland into line with England and Wales.

The aim is to make it possible for landlords to take tough action to deal with those who are carrying out their criminal activities in and around tenanted properties. The person must have been convicted of the offence before the local authority can take action to evict the tenant on this ground. The sheriff will exercise his discretion in deciding whether in all the circumstances it is reasonable to evict the tenant. Where the tenant has been coerced by visitors or those residing with him, it is unlikely that the sheriff would find it reasonable to order repossession of the house. Guidance to landlords will stress that eviction should not be sought in such circumstances.

The requirement that there should simply be a likelihood of nuisance or annoyance is intended to deal with the difficulties encountered in practice in persuading neighbours to give evidence. On the basis of the proposed amendment, the victim of the behaviour would not have to give evidence that nuisance or annoyance had been caused. Evidence could come instead from third parties--for example, the police or employees of the landlord--to support a judgment that nuisance or annoyance was likely to be caused by the behaviour in question.

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These provisions mirror those introduced in England and Wales under the Housing Act 1996, which have already been shown to go some way towards combating the menace of drug dealing and serious antisocial behaviour which blight the lives of so many decent people on our housing estates. I beg to move.


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