My Lords, my noble friend Lord Paddick and I have a number of amendments in this group. Underlying all of them is a concern about all the so-called right-to-rent provisions—and indeed those provisions in the 2014 Act—and our view that there should be much longer experience of the current
regime before criminalising non-compliance with it. My Amendment 67, which is more specific than Amendment 66, in the name of the noble Lord, Lord Rosser, and more robust, in particular deals with this. Noble Lords will be familiar with the short piloting of the requirements in the 2014 Act, the announcement of their rollout beyond the West Midlands pilot area before the six-month pilot came to an end and the publication of the evaluation of the pilot merely hours before these clauses were debated in Committee in the Commons.
My Amendment 67 picks up on concerns and criticisms of the scheme from the evaluation by the Home Office and on work done in particular by the Joint Council for the Welfare of Immigrants. The proposed new Section 33C(8) lists issues which were highlighted and which would be impacted. The amendment would require an independent assessment,
“based on information from a representative sample”.
The 2014-15 pilot was much criticised on this score, as it comprised substantially students, with few people who actually moved during the period, so they had not experienced the new rules.
My amendment would also require an assessment over an adequate period, with publication not before five years from the start of the pilot. Noble Lords will also be aware of the panel co-chaired by the noble Lord, Lord Best, which continues to oversee the scheme and which has instigated changes. I do not for a moment doubt what the noble Lord, Lord Best, has told us of the workings of the committee, but since the minutes of its meetings are not published, we are not able to look at them in the way that we would want to. The evaluation should of course be based on rigorous data collection.
The regime affects tenants and would-be tenants, landlords and landlords’ agents, and when it was rolled out some months ago there were very many negative comments. It was interesting that when we had a debate a couple of weeks ago in this Chamber, it was apparent that some Members of your Lordships’ House who were landlords did not know of the requirements. So it seems to us that the scheme should be as dependable and defensible as possible before a landlord becomes liable to be criminalised, and this amendment allows for that. Criminalisation is very significant: a fine is qualitatively different from a civil penalty of the same amount.
Our Amendments 59, 60 and 61 would protect landlords. New Section 33A, which we are presented with in the Bill, sets out two conditions or matters which would give rise to an offence. My amendment would add a third—that previously the landlord should have been required to pay a penalty, so that a landlord is not liable to be criminalised on the first occasion he infringes. I am aware of course that there would be an assessment by the Crown Prosecution Service as to whether it is in the public interest to prosecute and so on, but I simply do not think that an individual in that situation should be subject to criminalisation. The Minister may respond by saying, “What about the flagrantly bad landlords—those who overcrowd, force people into substandard conditions and so on?”. But we have other housing legislation and we should not be using immigration legislation to deal with this abuse.
The second condition deals with premises being—including becoming—occupied by an adult who is not qualified to have the right to rent and the landlord’s knowledge. I hope that the Minister can explain whether there is a distinction between the obligations of a landlord and of a landlord’s agent, because the equivalent provision in the 2014 Act, at Section 22(6), requires reasonable inquiries to be made. I find it difficult to see how this fits with new Section 33A.
The Minister’s Amendment 62 does not deal with the positive action of authorising occupation. If we are not to have that, I support Amendment 65, tabled by the noble Lord, Lord Howard of Rising. The defence of having taken reasonable steps to terminate the tenancy within a reasonable period is an improvement, as far as it goes, but that is not nearly far enough. What is reasonable is to be determined by the court, which is fine, but having regard to the Secretary of State’s guidance, which, to me at any rate, is not fine. My Amendment 63 would remove new subsections (5B) and (5C). What is reasonable should speak for itself, and the courts are not short of experience in assessing what is reasonable. But if something is reasonable only subject to certain matters, they should be set out in legislation, not unamendable guidance—or at any rate guidance that will be amendable by the Government and will not be certain.
Amendments 67A to 71 deal with evictions. The new section in Clause 38 is headed, “Termination of agreement where all occupiers disqualified”. In the Commons Public Bill Committee, the Minister said that Home Office notices would be issued only when it is clear that all the occupiers are illegal migrants. I do not doubt that that is the intention, but I am concerned that new Section 33D(2)(b)—I apologise to noble Lords for all the cross-references—might be read as referring to particular occupiers, as long as they were the subject of notices, especially as in the preceding paragraph, paragraph (a), there is a reference to “all”.
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Amendment 67B provides that notice to quit should be enforceable as if it were by the county court, not the High Court. The reason for this is that I understand that High Court enforcement officers, unlike county court bailiffs, do not give notice that they are going to turn up. Noble Lords who have dealt with situations of eviction will know that it is important to make arrangements for children of a household not to be present at the time of eviction.
My other amendments repeat Committee amendments tabled by the Labour Front Bench, which we supported and which would make eviction discretionary for the court, not mandatory. For instance, what if an asylum claim fails but the person is unable to return to his country of origin? What if the tenant cannot evidence his right to rent? The Home Office checking service cannot be accessed by tenants; it is available only to landlords and their agents. The tenant’s circumstances cannot be taken into account if the eviction is mandatory.
The Minister told the Public Bill Committee that a reference to a,
“Home Office notice is a clear statement of immigration status”.—[Official Report, Commons, Immigration Bill Committee, 29/10/15; col. 263.]
But it does not extend to the tenant’s circumstances of, for instance, disability, pregnancy or having a family including very young children. I should tell the House that the Equality and Human Rights Commission supports these amendments, providing safeguards against breaches of Articles 8 and 14 of the convention.
I do not want to leave it to the Home Office to decide not to require eviction. Once the eviction process starts, it will tend to roll onwards in an inevitable fashion. The court should have the discretion to take account of varied and difficult situations. Nor—and I say this about all the provisions—do I want to see landlords or their agents made criminals because they do not fulfil all the duties of immigration enforcement imposed on them by this Bill. I beg to move.