Property Factors (Scotland) Bill: Stage 2
Good morning and welcome to the third meeting of the Local Government and Communities Committee in 2011. As I usually do at this point, I remind members of the committee and the public to turn off all mobile phones and BlackBerrys.
Item 1 is day 2 of our consideration of stage 2 amendments to the Property Factors (Scotland) Bill. I welcome Alex Neil, Minister for Housing and Communities, and, from the Scottish Government, Simon Stockwell, family and property law; Barry McCaffrey, legal directorate; Max McGill, office of the Scottish parliamentary counsel; and Stephen White, head of consumers in private housing. I also welcome Patricia Ferguson MSP.
Section 15 agreed to.
Section 16—Application to homeowner housing panel
Amendment 9, in the name of the minister, is grouped with amendments 85, 10 to 12, 87, 13, 14, 89, 15, 90, 16 to 18, 30 and 31. I draw to members’ attention the pre-emption information in the groupings list.
My speaking notes start off by saying that the Government and Patricia Ferguson are aiming for a similar objective but we have different amendments. However, I have just spoken to Patricia Ferguson and I believe that she is not going to move the amendments in her name and will support the Government amendments. I will briefly explain the background to the Government amendments.
The bill allows applications to the dispute resolution service in relation to alleged failures
“to comply with any term of contract between the homeowner and the property factor”.
The problem is that there may not be a “contract” between the home owner and the property factor. In land management cases, there may be an obligation in the title deeds that is not a contract. In other cases, the property factor may have been appointed by the developer, perhaps under a manager burden under section 63 of the Title Conditions (Scotland) Act 2003.
Amendment 9 proposes that the reference to “contractual duties” should be deleted and replaced by a reference to “property factor’s duties” generally to cater for the situation that I have just described. That would mean that, when a home owner wishes to use the dispute resolution service, it would not matter whether there is a contract.
Amendment 14 defines “property factor’s duties”, with particular reference to duties to the management or maintenance of land.
Amendments 10 and 12 are consequential and remove references to “contractual”.
Amendments 30 and 31 amend section 28 to remove a reference to the definition of “contractual duties” and insert a reference to the proposed definition of “property factor’s duties”.
Amendments 11, 13, 16 and 18 are drafting amendments so that the bill continues to refer to the need “to comply with” the code of conduct.
Amendment 15 relates to section 18, which provides that, if the home owner housing committee concludes that the factor has complied, the committee must consider making an order. That is a mistake. An order is not required when the factor has carried out his or her duties. Amendment 15 corrects that error. Amendments 15 and 17 also take out a reference to “contractual duties” and insert “property factor’s duties” instead. They also clarify the language so that, instead of compliance, the reference will be to failing
“to carry out the property factor’s duties”.
In conclusion, I invite the committee to support all the Government’s amendments.
I move amendment 9.
I am happy not to move amendments 85 and 87, on the basis that the amendments in the name of the minister will create a concept of “property factor’s duties” that is wide enough to include the kind of contractual duties and duties from real burdens that I wished the bill to include. Accordingly, I will not move those amendments. I will also not move amendment 89.
I support amendments 10 to 15, 30 and 31. In light of my support for the minister’s creation of the concept of “property factor’s duties”, I do not intend to move amendment 90 and will support amendments 16 to 18.
Amendment 9 agreed to.
Amendment 85 not moved.
Amendment 86 moved—[Patricia Ferguson]—and agreed to.
Amendments 10 to 12 moved—[Alex Neil]—and agreed to.
Amendment 87 not moved.
Amendments 13 and 14 moved—[Alex Neil]—and agreed to.
Section 16, as amended, agreed to.
Section 17—Referral to homeowner housing committee
Amendment 88, in the name of Patricia Ferguson, is grouped with amendments 91 to 93, 98, 104 and 105.
All the amendments in the group are technical and are designed to tidy up the language that is used in this part of the bill.
I move amendment 88.
The Government supports the amendments and, indeed, has worked closely with Patricia Ferguson on them.
Amendment 88 agreed to.
Section 17, as amended, agreed to.
Section 18—Determination by homeowner housing committee
Amendment 89 not moved.
Amendment 15 moved—[Alex Neil]—and agreed to.
Amendment 90 not moved.
Amendment 16 moved—[Alex Neil]—and agreed to.
Amendments 91 and 92 moved—[Patricia Ferguson]—and agreed to.
Amendments 17 and 18 moved—[Alex Neil]—and agreed to.
Amendment 93 moved—[Patricia Ferguson]—and agreed to.
Section 18, as amended, agreed to.
Section 19—Property factor enforcement orders
Amendment 94, in the name of Patricia Ferguson, is grouped with amendments 95 to 97, 99 to 103 and 112.
This small group of amendments makes a number of minor technical amendments to improve the precision of the language that is used in part 2 of the bill.
I move amendment 94.
The Government is content with amendments 94 to 97, 99 to 101 and 112. However, we are not content with amendments 102 and 103 and invite the committee to reject those.
Amendment 103 appears to remove proposed ministerial powers on making sheriff court rules. We agree with removing ministerial powers in that area, and Government amendments 19 and 20, which are due to be debated in the next grouping, achieve that. However, amendment 103 appears to give ministers the power to make regulations in respect of the right to appeal. That seems unnecessary. Section 21 already lays down rights of appeal.
In our letter of 4 October 2010, we pointed out that the rights of appeal in section 21(1) might need to relate to the president of the panel, who takes decisions under the bill, rather than the panel, which does not take any decisions under the bill. Perhaps that is something that the member in charge could consider for stage 3. We are happy to provide assistance in that regard.
The Government is uncertain about the rationale for the change that is proposed in amendment 102, which does not appear to be necessary.
In conclusion, I invite the committee to reject amendments 102 and 103 and agree to the other amendments in the group.
The reason for the amendments was to react to points that were made by the Government about the rules of court. In view of the minister’s comments, I am happy not to move amendments 102 and 103. I believe that what the minister says with regard to amendment 103 is correct, so I will not move it. As a consequence of that, it is best not to move amendment 102, but I will come back to the issue at stage 3, if necessary.
Amendment 94 agreed to.
Amendment 95 moved—[Patricia Ferguson]—and agreed to.
Section 19, as amended, agreed to.
Section 20—Variation and revocation of property factor enforcement orders
Amendments 96 and 97 moved—[Patricia Ferguson]—and agreed to.
Section 20, as amended, agreed to.
Section 21—Appeals
Amendment 98 moved—[Patricia Ferguson]—and agreed to.
Section 21, as amended, agreed to.
Section 22—Effect of failure to comply with property factor enforcement order
Amendment 99 moved—[Patricia Ferguson]—and agreed to.
Section 22, as amended, agreed to.
Section 23—Property factor enforcement order: offences
Amendments 100 and 101 moved—[Patricia Ferguson]—and agreed to.
Section 23, as amended, agreed to.
Section 24—Power to make further provision about applications etc
Amendment 102 not moved.
09:45
Amendment 19, in the name of the minister, is grouped with amendment 20. I draw members’ attention to the pre-emption information in the groupings list.
Amendments 19 and 20 relate to section 24, which provides that ministers would make rules in relation to appeals to the sheriff against decisions by the home owner housing panel or the home owner housing committee. As previously debated, it is not appropriate for ministers to make sheriff court rules. Therefore, amendment 20 would delete the reference in section 24 to appeals. Amendment 19 is consequential on that.
I move amendment 19.
I support amendments 19 and 20 and will not move amendment 103.
Amendment 19 agreed to.
Amendment 20 moved—[Alex Neil]—and agreed to.
Section 24, as amended, agreed to.
After section 24
Amendment 21 moved—[Alex Neil]—and agreed to.
Section 25—Annual report
Amendments 104 and 105 moved—[Patricia Ferguson]—and agreed to.
Section 25, as amended, agreed to.
Before section 26
Amendment 117 moved—[Patricia Ferguson]—and agreed to.
Section 26—Delegation of functions
Amendment 106 moved—[Patricia Ferguson]—and agreed to.
Amendments 22 to 24 moved—[Alex Neil]—and agreed to.
Amendment 25, in the name of the minister, is grouped with amendments 26 and 28.
Amendment 26 provides that ministers may, by affirmative resolution order, make ancillary provision in relation to the bill. The power extends to modifying primary legislation, including the bill once enacted. Amendment 25 provides that the ancillary provision power cannot be delegated. Amendment 28 amends section 27(3) to exclude provisions under the power from those statutory instruments under the bill that are subject to negative resolution procedures.
The power could be used in a number of areas. The Government and Ms Ferguson have recognised that the bill will need to interact with the Title Conditions (Scotland) Act 2003. In particular, the 2003 act contains provisions on appointing managers. We expect to use ancillary powers to clarify what powers residents have to appoint a new manager if a land maintenance company should be refused registration or deregistered.
Other areas in which we might need to use the powers include dealing with transitional issues while the registration scheme is being established; dealing with transitional issues in relation to the additional functions that are conferred on the home owner housing panel and committee in relation to the dispute resolution service; and ensuring that the provisions of part 9 of the 2003 act, on varying and discharging burdens in title deeds, will work appropriately if they need to be used by residents after any deregistration of a land-owning land maintenance company.
Ms Ferguson, her advisers and Consumer Focus Scotland have thought about the consequences of deregistration and the interaction with other legislation such as the 2003 act. My officials and I are happy to discuss the use of the ancillary provision powers with Ms Ferguson, her advisers and Consumer Focus Scotland. In addition, we would be happy to discuss compulsory purchase. At last week’s meeting—at column 3982 in the Official Report—Patricia Ferguson referred to compulsory purchase. We, too, have considered the issue. As Ms Ferguson said, compulsory purchase provisions are “relatively radical”, although there are existing local authority powers in the area.
We would positively welcome discussions with Ms Ferguson on ancillary powers, compulsory purchase and the consequences of the bill. Implementing the bill will be a challenging task and we welcome help and support.
I move amendment 25.
I support the introduction of ancillary provisions in the event that the powers need to be used as a consequence of the bill. I am happy to discuss further with the minister and, for that matter, anyone else the situation that might arise were the Greenbelt Group or another land management company to be deregistered—an event that I suspect is extremely unlikely. I simply point out that the process would have been a lot simpler if amendments 116 and 117, in my name, had been agreed to last week.
Amendment 25 agreed to.
Section 26, as amended, agreed to.
After section 26
Amendment 26 moved—[Alex Neil]—and agreed to.
Section 27—Regulations and orders
Amendments 27 to 29 moved—[Alex Neil]—and agreed to.
Section 27, as amended, agreed to.
Section 28—Interpretation
Amendment 30 moved—[Alex Neil]—and agreed to.
Amendment 107 moved—[Patricia Ferguson].
The question is, that amendment 107 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Tolson, Jim (Dunfermline West) (LD)
Against
Doris, Bob (Glasgow) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 4, Against 4, Abstentions 0.
I use my casting vote in favour of the amendment.
Amendment 107 agreed to.
Amendment 108 moved—[Patricia Ferguson].
The question is, that amendment 108 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Tolson, Jim (Dunfermline West) (LD)
Against
Doris, Bob (Glasgow) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 4, Against 4, Abstentions 0.
I use my casting vote in favour of the amendment.
Amendment 108 agreed to.
Amendment 109 moved—[Patricia Ferguson].
The question is, that amendment 109 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Tolson, Jim (Dunfermline West) (LD)
Against
Doris, Bob (Glasgow) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 4, Against 4, Abstentions 0.
I use my casting vote in favour of the amendment.
Amendment 109 agreed to.
Amendment 31 moved—[Alex Neil]—and agreed to.
Amendment 110 moved—[Patricia Ferguson].
The question is, that amendment 110 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Mulligan, Mary (Linlithgow) (Lab)
Tolson, Jim (Dunfermline West) (LD)
Against
Doris, Bob (Glasgow) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Wilson, John (Central Scotland) (SNP)
The result of the division is: For 4, Against 4, Abstentions 0.
I use my casting vote in favour of the amendment.
Amendment 110 agreed to.
Amendments 111 and 112 moved—[Patricia Ferguson]—and agreed to.
Section 28, as amended, agreed to.
After section 28
Amendment 32, in the name of the minister, is in a group on its own.
Amendment 32 relates to the Crown application of the bill. We expect the impact of the bill on the Crown to be minimal. The bill is aimed at property factors, and the Crown is not generally engaged in such activities, but we cannot completely rule out the possibility of the Crown carrying out factoring on some estates in a way. Therefore, in accordance with normal practice in legislation, the amendment provides that the Crown should not be criminally liable under the bill but should be subject to a declarator of non-compliance in the Court of Session.
I move amendment 32.
I support the amendment.
Amendment 32 agreed to.
Section 29—Short title and commencement
10:00
Amendment 33, in the name of the minister, is grouped with amendments 113, 34 and 35. I draw members’ attention to the note on pre-emption in the groupings list.
Amendments 33 and 35 seek to commence part 3 immediately after royal assent. The powers on ancillary provisions, which we have just debated, are in part 3, and commencing them immediately after assent is given will help with the bill’s implementation.
Patricia Ferguson and I have discussed commencement for parts 1 and 2 and have agreed that, after further consideration, a stage 3 amendment will be lodged seeking the bill’s final implementation by 1 October 2012. We already agree on many issues. The bill needs to be implemented and, under its provisions, the Government will have to establish a new registration scheme and a dispute resolution service; prepare and consult on the code of conduct; consult and make regulations on matters such as fees and charges; and put together information and guidance for the industry and the public. Although officials can start that work, the fact is that a large number of tasks have to be carried out, some of them in sequence. As a result, full implementation will take us to the October 2012 deadline. I should emphasise, however, that that is the absolute deadline and that, if we can implement any sooner, we will do so.
I will not move amendment 34, which relates to commencing parts 1 and 2, but I will move amendments 33 and 35, on commencing part 3 immediately after royal assent, which is the area on which Patricia Ferguson and I agree.
I move amendment 33.
The minister is correct to say that we have discussed the matter and have reached agreement on the commencement date. The bill has a commencement date of September 2011, which amendment 113 seeks to change to the end of December 2011. However, having discussed the matter in some detail with the minister and his officials, I accept that a number of hurdles have to be overcome before the bill can be implemented and I am therefore happy to come back with a stage 3 amendment to ensure that implementation takes place no later than 1 October 2012.
That said, it is important to have a commencement date. People expect that any legislation that the Parliament passes will begin to help them with the difficulties that gave rise to it as quickly as possible. However, people are also reasonable and will understand that work needs to be carried out to allow the legislation to be implemented as well as it can be. As the agreed timeframe gives officials and others time to put the bill into practice, I will not move amendment 113.
Amendment 33 agreed to.
Amendments 113 and 34 not moved.
Amendment 35 moved—[Alex Neil]—and agreed to.
Section 29, as amended, agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. I thank the minister, his team and Patricia Ferguson.
As I pointed out earlier, the cabinet secretary will not be available until 11 am. If the committee agrees, we could move on and consider items 4 and 5. Are members agreed?
Members indicated agreement.