Chamber
Plenary, 24 Nov 2005
24 Nov 2005 · S2 · Plenary
Item of business
Housing (Scotland) Bill: Stage 3
I have found this part of the bill quite complex and, at stage 3, the issues are becoming even more complex.
Amendments 73 to 76 address issues with the original drafting of section 12 in relation to the application of the repairing standard to agricultural tenancies. The bill as introduced stated that only agricultural holdings under the Agricultural Holdings (Scotland) Act 1991 were excluded, but there is a subsequent act, the Agricultural Holdings (Scotland) Act 2003. Holdings under the Crofters (Scotland) Act 1993 and the Small Landholders (Scotland) Acts 1886 to 1931 also need to be excluded for the same reasons. Those are all types of agricultural holdings where the house is ancillary to the purpose of the let, which is the land or the farm.
My understanding is that Executive amendment 72 will exclude tenancies of a house on a croft or a small landholding. However, the nature of croft and small landholding tenancies is that the tenancy is of the land. In fact, the tenant has usually built the house himself to work the land, so it is incorrect to refer to the tenancy of the house. The minister's amendment will mean that if a crofter wanted to let a second house on his croft under a normal residential tenancy, he would not have to comply with the repairing standard. I do not think that that was the intention—the Executive's amendment was supposed to exclude the actual croft tenancy under which the house is ancillary to the land.
Amendment 87 is about tied houses. I raised the issue at stage 1 and stage 2; at stage 2, I lodged amendments to remove tied houses from the legislation. As I lived in a tied house for the first two decades of my life, because my father was a farm worker, I want the repairing standard for tied houses—whether Bute House or a farm cottage—to be as high as it is elsewhere in the housing sector.
The main point in relation to amendment 87 is that a tied house is part of an employment contract rather than a landlord-tenant contract. I understand that the definition of a tenancy includes a person who pays rent. No rent is paid in service occupancies where the occupancy of the house is a contractual requirement of the employment. I give the example of Bute House; it is a tied house and the service occupancy is covered in the First Minister's contract of employment.
Some employers provide a house to an employee on the basis of a lease, usually called a service tenancy. In that case, the repairing standard will apply as usual, as rent is charged, although it may not be the full market rent. In the case of service occupancies, whether of the First Minister, farm workers or ministers of the kirk, the provision of the house is secondary to the primary purpose of the contract, which is employment. I ask the Scottish Executive whether it can legitimately legislate in such circumstances, as employment is reserved to Westminster. The terms of a service occupancy are a matter for the employment contract; therefore, it is not appropriate to deal with them under the repairing standard housing panel mechanism. For example, rent sanctions imposed by the private rented housing panel cannot be effective in cases where no rent is paid. If a farm worker refused to live in a house provided by his employer due to its poor standard, there could be a case for constructive dismissal, which would be handled by an industrial tribunal, not a private rented housing panel.
Yesterday, the Communities Committee discussed the statutory instruments to implement the national registration scheme for private landlords. It is interesting that tied houses are exempt from that scheme for the reasons that I gave. Why can tied houses be exempt from the national registration scheme for private landlords but be included in the Housing (Scotland) Bill?
My amendments address whether it is competent for the bill to cover issues in an employment contract.
Amendments 73 to 76 address issues with the original drafting of section 12 in relation to the application of the repairing standard to agricultural tenancies. The bill as introduced stated that only agricultural holdings under the Agricultural Holdings (Scotland) Act 1991 were excluded, but there is a subsequent act, the Agricultural Holdings (Scotland) Act 2003. Holdings under the Crofters (Scotland) Act 1993 and the Small Landholders (Scotland) Acts 1886 to 1931 also need to be excluded for the same reasons. Those are all types of agricultural holdings where the house is ancillary to the purpose of the let, which is the land or the farm.
My understanding is that Executive amendment 72 will exclude tenancies of a house on a croft or a small landholding. However, the nature of croft and small landholding tenancies is that the tenancy is of the land. In fact, the tenant has usually built the house himself to work the land, so it is incorrect to refer to the tenancy of the house. The minister's amendment will mean that if a crofter wanted to let a second house on his croft under a normal residential tenancy, he would not have to comply with the repairing standard. I do not think that that was the intention—the Executive's amendment was supposed to exclude the actual croft tenancy under which the house is ancillary to the land.
Amendment 87 is about tied houses. I raised the issue at stage 1 and stage 2; at stage 2, I lodged amendments to remove tied houses from the legislation. As I lived in a tied house for the first two decades of my life, because my father was a farm worker, I want the repairing standard for tied houses—whether Bute House or a farm cottage—to be as high as it is elsewhere in the housing sector.
The main point in relation to amendment 87 is that a tied house is part of an employment contract rather than a landlord-tenant contract. I understand that the definition of a tenancy includes a person who pays rent. No rent is paid in service occupancies where the occupancy of the house is a contractual requirement of the employment. I give the example of Bute House; it is a tied house and the service occupancy is covered in the First Minister's contract of employment.
Some employers provide a house to an employee on the basis of a lease, usually called a service tenancy. In that case, the repairing standard will apply as usual, as rent is charged, although it may not be the full market rent. In the case of service occupancies, whether of the First Minister, farm workers or ministers of the kirk, the provision of the house is secondary to the primary purpose of the contract, which is employment. I ask the Scottish Executive whether it can legitimately legislate in such circumstances, as employment is reserved to Westminster. The terms of a service occupancy are a matter for the employment contract; therefore, it is not appropriate to deal with them under the repairing standard housing panel mechanism. For example, rent sanctions imposed by the private rented housing panel cannot be effective in cases where no rent is paid. If a farm worker refused to live in a house provided by his employer due to its poor standard, there could be a case for constructive dismissal, which would be handled by an industrial tribunal, not a private rented housing panel.
Yesterday, the Communities Committee discussed the statutory instruments to implement the national registration scheme for private landlords. It is interesting that tied houses are exempt from that scheme for the reasons that I gave. Why can tied houses be exempt from the national registration scheme for private landlords but be included in the Housing (Scotland) Bill?
My amendments address whether it is competent for the bill to cover issues in an employment contract.
In the same item of business
The Presiding Officer (Mr George Reid):
NPA
We move to stage 3 proceedings on the Housing (Scotland) Bill.I will make the usual announcement about the procedures to be followed. We will deal with the a...
Section 10—Local housing strategies
The Presiding Officer:
NPA
Group 1 is on local housing strategies. Amendment 70, in the name of the minister, is the only amendment in the group.
The Deputy Minister for Communities (Johann Lamont):
Lab
Amendment 70 responds to an amendment at stage 2 from Cathie Craigie, which intended to ensure that the use of assistance to improve housing conditions in th...
Amendment 70 agreed to.
Section 12—Tenancies to which repairing standard duty applies
The Presiding Officer:
NPA
Group 2 is on tenancies that are wholly or partly exempt from provisions of the bill. Amendment 72, in the name of the minister, is grouped with amendments 7...
The Minister for Communities (Malcolm Chisholm):
Lab
Section 12 is intended to exclude agricultural holdings from the repairing standard. An agricultural holding is primarily let for an agricultural purpose. If...
Mary Scanlon (Highlands and Islands) (Con):
Con
I have found this part of the bill quite complex and, at stage 3, the issues are becoming even more complex.Amendments 73 to 76 address issues with the origi...
Euan Robson (Roxburgh and Berwickshire) (LD):
LD
I thank the minister for lodging amendment 72, which covers the points that the committee was concerned about. It clarifies and extends the exemptions in an ...
Malcolm Chisholm:
Lab
There are two ways of looking at section 12. First, I will deal with the legalities and technicalities of the repairing standard duty. More fundamentally, I ...
Amendment 72 agreed to.
The Presiding Officer:
NPA
Amendments 73 to 76 are therefore pre-empted.
Section 13—The repairing standard
The Presiding Officer:
NPA
Group 3 is on fire safety. Amendment 5, in the name of the minister, is grouped with amendments 6, 53, 69, and 7.
Johann Lamont:
Lab
Amendments 5, 6, 53, 69, and 7 will incorporate fire detection measures in the modernised repairing standard in chapter 4 of part 1 of the bill. The issue me...
Donald Gorrie (Central Scotland) (LD):
LD
I am very content with amendments 5 and 6. I would like to press the minister on the words "building regulations". In my experience, the building control sys...
Johann Lamont:
Lab
I recognise the point that Donald Gorrie makes. He is right that many of the concerns about planning relate to the perceived inability to enforce standards. ...
Amendment 5 agreed to.
Amendment 6 moved—Johann Lamont—and agreed to.
Section 23—Referral to private rented housing committee
The Presiding Officer:
NPA
Group 4 is on decisions by the president of the private rented housing panel. Amendment 80, in the name of Christine Grahame, is grouped with amendments 81 a...
Christine Grahame (South of Scotland) (SNP):
SNP
The amendments are all linked. I hope that the minister understands the spirit in which I lodged them. They aim to assist in the process of determining an ap...
Euan Robson:
LD
I recognise the spirit in which the amendments have been lodged, but perhaps they are too prescriptive and it would be relevant to cover the matter in guidan...
Malcolm Chisholm:
Lab
I appreciate why Christine Grahame wants to build the extra elements in question into the procedures of the private rented housing panel, but it is not neces...
Christine Grahame:
SNP
I am delighted by the minister's response, which will appear in the Official Report—that is what I really sought. In the circumstances, I seek to withdraw am...
Amendment 80, by agreement, withdrawn.
Amendments 81 and 82 not moved.
The Presiding Officer:
NPA
Group 5 is on procedural matters relating to the determination on the repairing standard. Amendment 11, in the name of Malcolm Chisholm, is grouped with amen...
Johann Lamont:
Lab
The amendments respond to amendments that Tricia Marwick lodged at stage 2—obviously, we have good cop and good cop today. Those amendments dealt with notifi...