I am grateful for both the debate and the amendments tabled by my noble friend. They contain constructive suggestions and are designed to make this part of the Bill work, an aim which noble Lords will share. The amendments seek to exclude vulnerable people and students from the provisions of these clauses. I have already referred to the Government’s plans in relation to students. However, I wish to provide some reassurance in relation to those who may be vulnerable.
On the point made by the noble Baroness, Lady Smith, discrimination is a concern. Certainly if it became widespread it would destroy the credibility of these arrangements. That is why there is a code on discrimination running parallel with the code of practice. As noble Lords will know, to breach this code and to act in a discriminatory fashion is against the law in any event, and so it is part and parcel of the package of non-regulatory measures being brought forward to reinforce these particular provisions.
Clause 16 provides discretionary powers for the Secretary of State to authorise a tenant who has no lawful status to rent property. This will include asylum seekers, who will be able to confirm that they have a right to rent with the landlords’ checking service, or a landlord may conduct a check directly with the service. This discretion will be exercised where a failed asylum seeker is unable to return home because of a recognised barrier.
Tenants housed by virtue of children or national assistance duties are also covered in exclusions. Schedule 3 provides that any accommodation provided to a person as a result of a duty on a local authority is excluded—that is, a duty on a local authority in respect of any obligations to vulnerable people. It does not seek to particularise the duties, including the respective Acts and orders relating to children or social care; it is a general obligation which local authorities may have to individuals. Therefore the amendment proposed by my noble friend is not necessary given the wide scope of this exclusion.
The amendments are also intended to provide further protection to landlords. The provisions create a civil penalty scheme which the Government are committed to applying on a light-touch basis. Where a suspected contravention is discovered, the Secretary of State may issue a penalty notice, including where they are not immediately contactable. The landlord is then afforded a right to raise objections. Where these objections show that the landlord has a statutory excuse from a penalty, they will be notified in writing. No further consequences will arise if the objections show that the landlord has a statutory excuse.
The power to increase a penalty is important—it is a kind of parallel power—as it may not be immediately clear whether the landlord has been previously penalised in this way. The landlord may, where it is decided to maintain a penalty, appeal to the courts. That is the right order of events: rather than going immediately to appeal, adjudication can take place informally between the landlord and the Secretary of State.
It is proposed that where a penalty remains unpaid the Secretary of State should be able to pursue recovery through the courts if the penalty were due under a court order in exactly the same way as a civil penalty. In cases where an appeal has been heard by the courts, this avoids the landlord, the Secretary of State and the courts having to return to the same court to hear an application for judgment for an amount the court has already determined should be paid by the landlord.
Turning to Amendments 55A and 55B, to which my noble friend wanted me to pay attention, I remind the House that the proposed sanction is a civil penalty, an administrative scheme; it does not form part of a criminal investigation. Clause 23 places a responsibility on the landlord and/or agent to evidence that they have complied with the prescribed requirements and have maintained an excuse against a penalty where necessary. That does not mean to say that the Secretary of State is not required to establish that there has been a contravention of Clause 17 to justify the issue of a penalty notice, nor that the Secretary of State will not engage with the landlord or agent and give them the opportunity to establish an excuse before a penalty notice is issued. I can confirm that the intention is that landlords and agents will be invited to demonstrate their excuse before a penalty notice is issued. However, in cases where the landlord or agent refuses to co-operate with an investigation, the Government consider that this is a proportionate and practical approach. The landlord or agent can easily prove that they have undertaken the checks by producing copies of the relevant evidence, whereas it would be difficult for the Secretary of State to establish a negative and establish that the prescribed requirements were not complied with.
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Perhaps I may turn to Amendment 55Q, because it was also mentioned. The amendment would limit the ability of the Secretary of State to impose a proportionate penalty. It may not be immediately obvious, for instance, that a landlord who is served a penalty has been served a penalty in the past, and so falls to suffer the higher penalty. Because of the nature of these arrangements there are indeed higher penalties for repeat offenders. The objection process may identify information which suggests that the penalty should be raised as well as lowered, and the Secretary of State should be able to take this into account.
This group of amendments also relates to the checks required of landlords. Removing the need for further checks when a tenant’s immigration leave is to expire will fail to deter overstayers. Allowing landlords to avoid the further checks by reporting a contravention may tempt some landlords simply to take the easier route, regardless that the tenant may have extended their immigration leave, which is the reason why these documents need to be checked. This will not serve the policy objective well and has the potential to undermine the whole scheme.
I turn now to the regulations that will make it clear to landlords which documents are acceptable in establishing an excuse. My noble friend Lady Hamwee laid great store by this area, and I agree that it is an
important aspect. Allowing the use of any document that purports to be an immigration document risks opening the way for fraudsters; nor should there be a need for certified copies because that will lead to extra costs and potential delays. It is quite reasonable to expect tenants to produce original documents for checks. As regards non-EEA family members of EEA nationals, these family members will be able to show Home Office-issued residence permits or certificates of application as evidence of their right to rent. The noble Baroness asked what would happen when these documents are not available because they might be lodged with the Home Office with an outstanding application. The landlord’s checking service will be able to confirm in writing that the landlord may rent within 48 hours. That is a commitment which we have put into the legislation.
I hope that my noble friend will feel able to withdraw her amendment, and if I have failed to satisfy her on any points, I will write to her.