Letter from the Clerk to the Office of
the Deputy Prime Minister |
The Committee considered the proposal again at its
meeting [yesterday], in the light of the further information provided
in your letter of 19 November. It remains concerned about the
proposal so far as it involves amending the provisions of the
1954 Act on agreements to exclude security of tenure. If it is
a real possibility that the changes proposed might increase the
proportion of "contracted out" tenancies to an extent
that undermined the protection afforded by the 1954 Act, the change
would be fundamental and so inappropriate for a Regulatory Reform
Order. Even if it were appropriate for such an order, the Committee
would doubt that the order did not remove any necessary protection
as envisaged by section 3(1)(a) of the 2001 Act.
The Committee appreciates the efforts made by the
Department to obtain evidence to substantiate the view that the
present protection is ineffective (because the court acts as a
"rubber stamp"); and that the proposals will not result
in a significant increase in the number of contracting-out cases.
But the Committee is minded to report that this aspect of the
Department's proposals should not be the subject of a Regulatory
Reform Order at this time.
The Committee has taken account not only of the Department's
statement, and other documents and its oral evidence, but also
of the consultation exercise. It has considered whether there
was any general consensus either that the existing protection
was illusory or that its removal and replacement with a less burdensome
procedure would not effect a substantial increase in the number
of "contracted out" tenancies.
The consultation paper proceeded on the basis that
the courts "almost invariably authorise applications to contract
out" and did not expressly address the questions whether
the proposed alternative procedure would lead to an increase in
the number of contracting out cases and whether, in particular,
the mere existence of the court procedures deterred landlords
from persuading tenants to join in an application to contract
Those respondents who did touch on this issue seem
to have shared the Committee's concerns (Bar Council, Ladbrokes
- even though they supported the proposal - and MOL). Possibly
a specific consultation on this issue would elicit material that
could persuade the Committee.
The Committee meets on 11 December to deliver its
report on the proposals and thought you might wish to be aware
at this stage that their report might recommend either
- that the "contracting-out" provisions
of the draft order (essentially Articles 21 and 22) should be
- that convincing evidence (including evidence
from any further consultation) should be submitted to meet the
Committee's concerns by the time the draft order is laid for approval.
If there is any further material you wish the Committee
to consider at its meeting on 11 December, please would you let
me have it by Thursday, 5 December.
27 November 2002