Infrastructure and Capital Investment Committee

Meeting date: Wednesday, September 19, 2012

Official Report 422KB pdf

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Subordinate Legislation

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Property Factors (Scotland) Act 2011 (Modification) Order 2012 [Draft]

Agenda item 2 is consideration of an affirmative instrument. I refer members to paper 1, to which the draft order and the executive note are attached. I welcome Margaret Burgess, the Minister for Housing and Welfare, to her first evidence session with the committee, and I congratulate her on her appointment. I also welcome the supporting officials from the Scottish Government’s private housing services division, who are Gordon Paterson, team leader, and Frances Murphy, senior policy officer.

I invite the minister to introduce the draft order.

I thank the committee for inviting me to speak about the draft order, which the Scottish ministers have laid for Parliament’s approval.

The order amends the Property Factors (Scotland) Act 2011 to allow certain personal information that is supplied by applicants to be omitted from the public register of property factors. The act requires ministers to take into account certain information when deciding whether an applicant is a fit and proper person to be entered on to the property factors register. That is information about a person’s criminal convictions for offences that involve fraud or other dishonesty, violence or drugs and about other contraventions of the law in relation to discrimination, property or debt. However, the act does not set out how ministers should obtain that information in order to consider it.

We concluded that it is necessary to ask applicants to self-declare information about any convictions or contraventions when they apply to be on the register. The Property Factors (Registration) (Scotland) Regulations 2012, which were recently made under the negative procedure and which came into force on 1 July, create the requirement for property factors to supply the information when they apply to be on the register. Those regulations were made under the power in the 2011 act for ministers to prescribe further information that is to be supplied in an application.

The 2011 act also contains a requirement to include in the public register all the information that is supplied in an application. That means that, if the order that the committee is considering was not made, ministers would be obliged to publish personal information, some of which is sensitive, on the public register of property factors. Ministers’ view is that that cannot have been the Parliament’s intention when it approved making the register of property factors available to the public. Publication of that data would not be in the public interest, either.

Under the 2011 act, ministers are required to decide whether a person is fit and proper and the purpose of gathering this information is to inform that decision. The Government’s concern is that publication of such information is likely to contravene the right to private life as guaranteed by article 8 of the European convention on human rights.

Removing the requirement to publish the personal information in the application will neither water down the requirement for each property factor to comply with the fit-and-proper-person test nor affect the publication of information on the business and property portfolio held by the property factor business. In short, it will not impact on the 2011 act’s key intention of increasing the transparency of the relationship between property factors and the home owners for whom they provide a service.

Thank you, minister. I note that we have been joined by Annalee Murphy, solicitor, from the Scottish Government.

I invite questions from members.

Do you believe that the apparent requirement to publish such information deters certain individuals from coming forward? Are there any examples of that happening?

I am not aware of any, but the legal team might be.

We are not aware of any examples of people who have been deterred by the legislation in the way you suggest. In fact, there has been quite a large response to registration; we have already received 200 applications in which this information has been submitted.

Is it safe to assume, though, that if the loophole had not been closed, it would have been a deterrent in the longer term?

It might well have been.

I find it a little odd that people with a number of convictions are seeking to be registered as property factors. How common is that?

At this stage, we do not know how many applicants will come forward and declare convictions. We have received one application containing a self-declaration of past convictions, but we need to make a judgment on how old they are and what they were for.

We are aware that there are issues in the industry, and that the 2011 act was aimed at addressing them. However, until we get the applications in, we will not know how many people will declare convictions.

I understand that the Rehabilitation of Offenders Act 1974 applies to those who have convictions, which means that, if those convictions are past a particular time limit, they will not need to be declared. I would have thought current convictions to be relevant information.

Such information might be relevant to ministers in making a judgment and taking a decision, but it is not relevant to the public.

Although I entirely understand your point about full disclosure of personal information and why that should not be put into the public domain, what about new information coming to light that will not be placed on the register? Under section 3(2) of the 2011 act, information need only be provided at the time of application to the register and need not be updated, even if additional convictions and contraventions come to light, until the next date of application. Can you or the legal team give us the rationale behind that decision?

That provision is in the act, which was passed by Parliament and which, as you will be aware, emanated from a member’s bill. The act makes it clear that only certain information will be updated as set out in section 7, which means that the conviction and contravention information in the application will be a snapshot in time. If the property factor wants to continue to operate, they will need to reregister and reapply after three years. The fact that such information is simply a snapshot in time is another reason for not including it in the register; under the Rehabilitation of Offenders Act 1974, it could become inaccurate in that three-year period if, for example, a conviction becomes spent.

As members have no more questions, we move to the formal debate on the SSI. I invite the minister to move motion S4M-04090.

Motion moved,

That the Infrastructure and Capital Investment Committee recommends that the Property Factors (Scotland) Act 2011 (Modification) Order 2012 [draft] be approved.—[Margaret Burgess.]

Motion agreed to.

I thank the minister and her officials for their attendance and suspend briefly for a changeover of witnesses.

10:12 Meeting suspended.

10:13 On resuming—