Chamber and committees

I have attempted to give a description of how the Scottish Government and the SCTS reach agreement about the funding of those processes every year; that process will be unchanged.

At the outset, I once again thank colleagues from political parties, stakeholders and, in particular, officials from the Government and the Parliament for the incredible pace at which they have worked in bringing us to this point.

As Jeremy Balfour set out, amendments 1 and 32 are very clearly intended to take away one of the principal functions of the bill. He said that we had a powerful debate at stage 1—indeed we did, and Parliament agreed to the general principles of the bill. Even if his amendments are admissible, it seems to me that, at a political level, they would fundamentally undermine the purpose of the bill. The Conservatives have the right to disagree, but there is no ambiguity about the amendments: they fundamentally oppose the reasons why we are introducing the bill. In the context of a cost of living crisis, we believe that an emergency response is necessary. Tenants are particularly exposed to that cost of living crisis, which justifies a rent freeze.

We absolutely did not, as Jeremy Balfour suggests, argue the case that he is arguing a few months ago. We opposed an amendment that we were convinced would not have been legally competent. The provisions in the bill are legally competent and will be effective at protecting tenants.

The remaining amendments in the group, as Mr Griffin said, would have the effect of retrospectively applying, to 6 June rather than to 6 September, the rent control measures that are contained in section 1. The purpose of backdating the measures to 6 September is, as I think the First Minister has made clear, to avoid the programme for government announcement resulting in landlords seeking to avoid the effect of the measures by acting before we had time to bring the legislation before Parliament. We are seeking to avoid rent increase notices being issued in response to the announcement. Ensuring that that protection is given will be accomplished by the bill. It is a necessary part of the package that will deliver protections for tenants, and it gives a level of clarity to landlords and tenants.

I am afraid that I cannot accept the amendment to backdate the freeze to June. That would run contrary to the need for the law to be fair and certain, because it would change the effect of landlords having been unaware of the intention to change the law months before the programme for government announcement was made. To do so would inevitably open up the legislation to challenge and cause significant uncertainty.

I can accept only one amendment in the group. However, I am sympathetic to a number of the other amendments, and I offer to work with colleagues on them. I will address the amendments in turn.

On amendment 45, I can confirm that the existing protections against wrongful termination will apply to the emergency measures. Given that, I do not believe that the amendment is required.

Amendment 46 seeks to link the definition of “financial hardship” to substantial rent arrears, and Mark Griffin set out some of the reasons why he thinks that that is justified. However, it is clear that financial hardship can arise as a result of other factors that are outwith the landlord’s control. In order to strike a balance, we have to recognise that a landlord who might have lost their job or whose separate business has failed and who has ended up with unmanageable debts might need to take action. Those factors would not be within their, or the tenant’s, control, but the landlord would face the prospect of financial hardship, and the only option might be to sell or move into a property. We believe that that meets the test of proportionality and balance, and we do not think that it is appropriate to link the definition of hardship to rent arrears.

Amendments 47, 49, 55 and 64 would require landlords who seek an eviction on the basis of one of the new grounds of financial hardship to provide specific types of information to the tribunal to evidence that hardship. Landlords must evidence that hardship, but the information that is required will depend on the circumstances of each case, and the tribunal is best placed to determine the specific information that it considers to be necessary in determining whether the landlord is in financial hardship.

Therefore, I do not think that it is appropriate for us to mandate that the specific information that is outlined in the amendments be provided. However, there are good examples in the amendments of the information that the tribunal might wish to request. So, although I cannot support the amendments today, I have spoken to Mark Griffin and hope to be able to support amendments at stage 3 that will address the issue.

I am pleased to support amendment 48, which provides that an affidavit from a landlord that they intend to live in the let property could be an example of the evidence that could be provided to the tribunal as part of an eviction case.

I do not believe that it is a point of order, and I do not believe that that is what I said.

To return to the points raised by Pauline McNeill, end-tenancy rent increases generally do not take place in the social rented sector, and most rents have been set annually from 1 April.

There are very important longer-term arguments here about the operation of the rented sector, which we will continue to address in our longer-term work on permanent changes to legislation, but I am afraid that, in the context of this emergency bill, I am not able to support the amendment to extend the bill to inter-tenancy rent increases. I therefore ask the member not to move her amendments. If they are moved, I ask Parliament not to support them.

Turning to Pauline McNeill’s amendments 9 and 10, I again ask the member not to move the amendments. We all want to make sure that tenants are well informed, but the amendments are flawed in their references and would require to be mirrored in the provisions relating to tenancies in the Housing Act 1988. However, in considering those issues, we would be content to bring back an amendment at stage 3, tomorrow, with the correct references that addresses the points that Pauline McNeill seeks to address in amendments 9 and 10.

Willie Rennie says that amendment 25 seeks to achieve clarity, but I do not believe that it would do that. It would require a lengthy notice period to be provided by the Scottish ministers when laying regulations to modify the rent cap for social tenancies. As I said, the Scottish ministers will work closely with social landlords and tenants in social tenancies to discuss any changes to the rent cap, but amendment 25 would remove the ability of ministers to react to changing circumstances, in order to protect the interests of landlords when the cap must be increased.

Equally, any future decrease in the rent cap, if it had already been increased, could not be actioned quickly due to the amendment. There are existing procedural safeguards in the bill, as the rent cap can be increased only by regulations that are subject to the affirmative procedure.

To ensure that Scottish ministers can react quickly to changing circumstances, I cannot support the amendment, and I invite Willie Rennie not to press it. If it is pressed, I urge members to reject it.

I turn to Miles Briggs’s amendment 26. We also cannot agree with that amendment in its current form, but it raises an important issue that we agree needs to be addressed. Therefore, we will lodge a stage 3 amendment to allow rent increase notices to be issued for the social sector if the cap is lifted one month before 1 April 2023, to allow social landlords to issue rent increase notices in time for them to take effect on 1 April. That is an important issue, and, as I say, we intend to address it tomorrow at stage 3. I hope that Miles Briggs will accept that position.

I am afraid that I also cannot accept amendment 31. There is an understandable desire, as we debate emergency legislation in relation to the cost of living, to widen the debate out beyond rented housing, but I am afraid that we are not able to do that. Amendment 31 clearly widens out the debate beyond the issue of rented housing.

There are key differences between living in rented housing and living in a care home that mean that it is not appropriate to address care homes in this bill, which relates to the protection of tenants. In a care home, the purpose of the accommodation is the provision of a service, so the charges are an amalgamation of charges for services and accommodation. Charges cover food, heating, care, support and workforce costs, among other elements.

Care homes do not offer tenancies; instead, residents have a residency agreement that sets out, among other things, the services that will be provided, the payment of fees and charges, and notice and termination periods for the residency agreement. The Government recognises that care home fees can be high for independently funded supported people, which is why free personal and nursing care rates have been increased by more than the inflationary measure for the past two years.

I am afraid that I do not think that the amendment offers a way to disambiguate those costs. We will continue to work with the UK Government to address the increasing energy costs that the sector faces, to mitigate any impact from that on increasing fees. Having said that, I am afraid that I must—

First of all, I will address amendment 39, to which Miles Briggs spoke a moment ago and which exempts the demolition of, or substantial work on, property in the social rented sector from the moratorium on evictions.

We are keen to ensure that tenants are protected from eviction, but we recognise that being able to refurbish large accommodation will help many tenants. We would expect tenants in those circumstances to be supported through the process, including being provided with alternative accommodation. Therefore, we intend to support amendment 39. I thank Miles Briggs for lodging it and encourage members to vote for it.

Some of the other amendments in the group are attempting to reduce the protection for tenants by increasing the exemptions from the moratorium and others attempt to remove some of the safeguards that we believe are needed, particularly on substantial rent arrears. Again, we come back to the theme of balance, which has come out of several of the groups of amendments. We need a bill that achieves a level of protection that tenants need but also has safeguards within it. We believe that the bill achieves that and we will not support the other amendments in the group.

Some of the amendments that seek to increase the exemptions from the moratorium and, therefore, reduce the level of protection seem to be predicated on the idea that the Government is holding properties back from rent. That is clearly not the case. It would be possible for us to remove all tenants’ rights and protections altogether. That would work in the interests of those who want to become landlords and have complete flexibility working on their side. That would not be appropriate. All organisations that seek to become landlords have to accept that, when tenants move into a property, it becomes their home and that home and their rights and security need to be respected.

I am not currently persuaded that the concerns that Mr Kerr outlined require an amendment to the bill, but I am content to have my officials contact him and explore other viable approaches to address his concerns. I do not believe that those concerns are validated at the moment in relation to the bill as we have it, but I am happy for that conversation between my office and his to take place before the amendment deadline for stage 3.

Mr FitzPatrick mentioned that the briefing came out before Universities Scotland had seen the text of the bill. As I said, at the moment, I am not persuaded that there is a serious issue that requires an amendment to the bill, but I am happy to have my office and Mr Kerr communicate about that and explore whether any change might be justified before the stage 3 amendment deadline.

I urge members to support amendment 39 but will not support the other amendments in the group.

My general comments were that some of the amendments—those that seek to weaken or undermine the protections against eviction—are not amendments that we would support. Other amendments seek to undermine the safeguards, and we do not support those amendments either.

Amendments 50, 56 and 65 all seek to require landlords to provide three months’ worth of council tax statements to evidence that they have moved into the property that is being repossessed. The amendments seek to address an issue that I am concerned about, but the tribunal does not have a role in ensuring that a landlord has moved into the property except when a tenant makes a wrongful termination application. It is therefore not appropriate to require that landlords provide such information to the tribunal, so I cannot accept those amendments.

Amendments 53, 57, 62 and 63 all seek to require the tribunal to consider whether the tenant has been informed about all the available support before it grants an application for eviction. I agree that that is vital support for tenants, but the pre-action protocols for rent arrears—which we made a permanent requirement during the passage of what became the Coronavirus (Recovery and Reform) (Scotland) Act 2022—already ensure that landlords are required to do that. The extent to which a landlord has complied with that will be taken into account by the tribunal when it determines whether it is reasonable to grant an eviction. I therefore do not support those amendments.

Amendment 58 aims to ensure that a wrongful termination relating to when a landlord fails to live in the let property would be considered an unlawful eviction. Unlawful eviction requirements provide protection for tenants when a landlord has not used the correct legal processes to end a tenancy. However, wrongful termination applies when they have used the correct process but have misled the tenant and the tribunal into ordering an eviction. I do not believe that it is appropriate to combine those two separate processes.

Amendment 66 would create an offence when a landlord repossesses a property under the Rent (Scotland) Act 1984 but fails to move into the property. Although I am sympathetic to the intention behind the amendment, it would not be appropriate to create a new criminal offence through temporary legislation. In addition, there are existing criminal and civil protections in such circumstances, so I cannot support amendment 66.

Amendment 67 would link substantial rent arrears to financial hardship. As I said in relation to amendment 46, that would substantially reduce the safeguards that are part of the balanced package that we are presenting today. I therefore cannot support amendment 67.

In summary, I support amendment 48 but not the other amendments in the group.