Chamber and committees

The core purpose of landlord registration is to ensure that those who operate as private landlords are fit and proper persons and that tenants and prospective tenants can be assured of that. Although I understand the thinking behind the amendments in this group and share the view that landlord registration is an important way of driving high standards in the private rented sector, a number of the amendments are not necessary, and many could have unintended consequences that would risk the integrity of the core purpose of registration.

Landlord registration is also a high-volume system that includes more than 200,000 landlords and 350,000 properties. Changes to how a system of that scale operates ought to be clear on the benefits that they would achieve, in order to justify the cost to Government, both national and local, and the increase in administrative burdens for landlords. I strongly believe that any significant changes to how registration systems operate should be informed by consultation with local authorities, landlords and tenants.

I appreciate that some amendments in the group may have their origins in data collection and the use of information for rent controls, as we discussed in group 8. I reiterate the commitment that I made when we discussed that group. We share the view that robust data is needed for that purpose, and I invite members who have lodged amendments in that area to join our planned engagement with local authorities over the coming months.

I turn first to Mark Griffin’s amendment 417. Information about sub-landlords is already entered in the landlord register, as they are classed as persons who act for the landlord, albeit that they are not required to register. Requiring sub-landlords to register would involve a duplication of information on the landlord register and would place an administrative burden on local authorities. In addition, the amendment does not consider the other parts of the 2004 act that would need to be considered in order to cater for sub-landlords in that way.

However, I accept the principle of ensuring that information can be sought from sub-landlords to support rent control. In that respect, Government amendments 303 and 304, which were previously agreed to by the committee, will provide a transparent and effective procedure for local authorities and the Scottish ministers to obtain information from landlords and

“any other person acting as landlord”.

I hope that that reassures Mr Griffin that information will be able to be sought from sub-landlords to support the delivery of rent control, in a proportionate way, through means other than changes to the registration system.

Meghan Gallacher mentioned—and we have previously discussed in committee—SLE’s concerns about those areas. The Minister for Housing met SLE very recently and made an offer for SLE to bring forward its proposed solution to the challenge. Ministers have said that we will look seriously at that before stage 3. Given that that work has not been done, I am not in a position to say whether we would support the solution that is put forward by SLE, but we are certainly cognisant of the issue, both from the committee’s previous discussions and the meetings that the minister has had. I reconfirm that we will work through SLE’s proposed solution before stage 3 and will inform the committee whether the Government wishes to take forward that suggestion. Of course, members will have their own views on SLE’s recommendations.

Amendment 418, which is also in the name of Mark Griffin, would add to the landlord register information about rent and size of property. I agree that information about rent and property size are critical to the operation of rent controls, but Government amendments 303, 304 and 313—all of which were previously agreed to—will allow the Scottish ministers and local authorities to seek that information, and it is not necessary to link that with the operation of the landlord register. To do so would change the purpose of landlord registration and of the register, which currently serves to assess and record whether an individual is a fit and proper person to operate as a landlord. The regime and the digital platform are designed around the person applying to be a landlord; the register is therefore neither intended nor designed to be a tool to record detailed information about each property. We ought not to shift the focus and change the purpose of the landlord register without extensive consultation with councils, landlords and tenants.

Mark Griffin’s amendment 488 would add new types of information that must be included in an application to a local authority to be entered in a register of landlords. I recognise that some of that information is useful for tenants. However, I note that a number of the proposed new data categories are already part of the existing fit-and-proper-person test and are already available to tenants and prospective tenants as part of property adverts or can be requested when a tenancy is taken up. I remain unclear on the potential benefits for tenants of the inclusion of some other categories.

As I have said, the purpose of the landlord register is to record who is a fit and proper person to operate as a landlord, and I do not believe that we should change that purpose without consultation. The register does not currently operate as a register of properties. Information is requested at portfolio level, so increasing the data requirements would not be operationally straightforward. To deliver on amendment 488 would involve a very significant change and would require changes to primary and secondary legislation, information technology systems and local authority practices.

For those reasons, I cannot support the amendments.

Amendment 454, in the name of Ross Greer, would delegate the fee-setting function for landlord registration to local authorities. Setting fees at a national level is transparent, predictable and straightforward for landlords, many of whom operate across local authority boundaries. That predictability is also important for local authorities as they manage their own resources.

As members will be aware, landlord registration is an important part of the protections for private rented sector tenants. Ensuring that the process of applying for registration is as straightforward as possible, anywhere in Scotland, is of material importance.

Amendment 408, in the name of Katy Clark, would mean that a new tenant could replace the tenant who had started the process of ending the tenancy and would compel the landlord to enter the tenancy on the same terms as the previous tenancy. Assigning the tenancy on the same terms as the departing tenant, with the landlord’s consent, is the current legal position, and the amendment would not change that. I fully understand the concerns about the impact on other joint tenants who do not wish the tenancy to come to an end, and I, too, want to limit the negative impact on other joint tenants as far as possible. The measures in the bill have been designed to help to do that.

It is very important that people in those circumstances speak to their landlord as soon as possible about their options, which include assigning the tenancy to another person or remaining in the property under a new tenancy. The pre-notice period ensures that there is time for those discussions to take place, and, if it is not possible for tenants to stay, that period enables them to access independent housing support and advice to help them to find suitable alternative accommodation.

I ask Mark Griffin not to press amendment 408 on Katy Clark’s behalf. However, I would welcome further discussions with her on the issue ahead of stage 3 to see whether more needs to be done.

Amendments 378 to 382, in Paul McLennan’s name, will support the operation of the measures in section 38, which will ensure that no joint tenant can be trapped in a tenancy against their will. Amendments 378 and 379 ensure that two months is the minimum pre-notice period and that three months is the maximum pre-notice period. That approach does not change the overall intent, but it is easier to understand than requiring that a 28-day notice to leave be served within a period of 28 days after the expiry of the two-month notice.

The pre-notice period aims to encourage tenants to consider their circumstances and, when possible, discuss their options—assigning the tenancy to another person or remaining in the property—with their landlord. If the final notice was not given within three months and the tenant still wanted to end their tenancy, they would need to start the process again from the beginning.

I thank Meghan Gallacher for the conversations that we have had, in particular in the past couple of days but also prior to that. As I said earlier, the only reason for my not supporting amendment 520 at this point is that, as a Government minister, I feel that it is important to give landlords the opportunity to come forward, should they have grave concerns about the proposals. If they do not, or do not do so in a way that convinces me or Ms Gallacher, I will be happy to support her amendment at stage 3. I have my own views about whether I will be convinced, but I want to give people the opportunity to come forward and express their concerns. However, I am very sympathetic to where Meghan Gallacher is coming from with her amendments.

The challenge—this explains why I am taking your amendments and Mr Simpson’s together—is that, although those amendments deal with two very important aspects of the student population, we must recognise that guarantor challenges do not apply solely to students and might apply to others. That is why I am keen to see what can be done to strengthen the existing avenues of support.

I think that it was Mr Greer who mentioned that some universities have schemes and others do not, and some local authorities do and others do not. I recognise that, and that is the challenge that we have. The push for a more national answer comes because of that patchwork approach, which is a concern to me and to other ministers.

Mr Simpson mentioned that I have talked on a number of occasions about how I want to improve the system that we have at the moment rather than add new systems. I make no apologies for that because, when we make legislation, we are always in danger of making a system more complex to attempt to solve challenges that we all know are there, rather than trying to make the existing system work better and more efficiently. We sometimes overcomplicate things and have a system that is more difficult for people to find a way through by attempting to sort things in a piecemeal way.

That is why I suggest that there is work to be done before stage 3 to see what can be achieved using the set-ups of universities, charities and local authorities. If Mr Greer or Mr Simpson do not feel that we have gone far enough in that work and if they feel that we still require an additional piece of the jigsaw to make that work, they can bring back amendments at stage 3. I believe that, between me and Graeme Dey, for example, when it comes to students, something can be done to improve the current system. That is my suggestion for a way forward for the international student situation and for estranged young people.

Thank you, convener, and good morning. Apologies, but I, too, will not be brief, given the number of members’ amendments in this group. However, I can assure you that this will be the largest speaking note.

I share the intention behind many of the amendments in this group to increase eviction protections in certain circumstances and to strengthen existing penalties where an unlawful eviction or wrongful termination occurs. However, I cannot support them, for the reasons that I will set out. Amendments 119 and 120, in the name of Meghan Gallacher, would prevent private landlords from applying to the tribunal to evict in cases where a tenant or a member of the tenant’s household has a terminal illness. I am very sympathetic to the outcomes that those amendments are seeking to achieve. However, they do not strike the right balance between protection for tenants and the rights of landlords. The amendments would prevent a landlord from recovering a property, regardless of the circumstances, and for an indeterminate period, including where those circumstances relate to their own health or ability to continue as a landlord. We have strong existing protections from unfair eviction, and the tribunal must consider all circumstances in determining whether it would be reasonable to grant an eviction. That would include where a person has a terminal illness.

Sections 24 to 27 of the bill will further strengthen those protections, ensuring that, when an eviction is granted, the tribunal must consider whether there should be a delay to the enforcement of the eviction. That will increase protection for all tenants, including those with a terminal illness, and it will ensure that the rights of tenants and landlords can be appropriately balanced.

However, I appreciate where Meghan Gallacher is coming from. She spoke earlier about bringing compassion to the bill and I assure her that I share that determination. I thank her for the genuinely useful and meaningful conversations that she and I have had over the past few weeks, and I also thank the Marie Curie charity for the direct discussions that we have had.

I accept Meghan Gallacher’s point that the ending of a tenancy via an eviction is exceptionally difficult and that people should be treated sympathetically and provided with support and advice. That will particularly be the case for those with a terminal illness. I am therefore keen to develop guidance for private landlords that will set out good practice in this area. I will seek input from organisations that support those who are facing terminal illness, such as Marie Curie, to ensure that tenants are supported as early as possible and to avoid the ending of a tenancy in eviction whenever possible. I hope that Meghan Gallacher will be able to contribute to those conversations and meetings.

Meghan Gallacher also mentioned amendments on succession, which I believe are in a later group. Without spoiling the surprises that are in my speaking notes for group 22, I am also keen to work with her on many aspects that relate to that group.

Amendments 122 to 129, in the name of Meghan Gallacher, would add terminal illness as a specific consideration for the courts or the tribunal when exercising the new duties to consider a delay to the enforcement of an eviction. Although the bill will allow the courts or the tribunal to take terminal illness into account, I understand the desire to highlight this specific issue. However, further consideration is needed on how best to address it in legislation. I am happy to work with Meghan Gallacher to lodge amendments at stage 3 to ensure that terminal illness is added to the list of things to be taken into account. On that basis, I ask her not to move those amendments and to instead work with me ahead of stage 3.

Amendment 491, in the name of Fulton MacGregor, would amend the new duty to consider a delay to the enforcement of an eviction to include a consideration of the detrimental impact it could have on a landlord that is a company or a business. I confirm that, although the bill refers to a specific number of factors, that is a non-exhaustive list and the tribunal may take all circumstances into account. The impact on the landlord, regardless of whether it is an individual, a business or another entity, will be a key factor in determining whether it is reasonable to delay. The amendment is therefore not necessary and I ask Fulton MacGregor not to move it.

Amendments 163 to 167, in the name of Edward Mountain, would prevent the tribunal and courts from ordering a delay to an eviction of longer than three months. I understand that those amendments respond to concerns from landlords about the length of any delay. However, I do not think that it is appropriate to restrict the discretion of the tribunal and courts. There are also issues with the drafting of the amendments that mean that, in practice, there could be no delay, or a minimum delay, which would undermine the purpose of the measures in the bill. I ask Edward Mountain not to move those amendments.

Amendment 452, in the name of Willie Rennie, and amendment 487, in the name of Meghan Gallacher, would create further exceptions to the duty to consider a delay when the property is needed for religious purposes and when

“the landlord is the Church of Scotland”.

I recognise the concerns that have prompted those amendments. However, I am not persuaded that an exemption is appropriate. Existing exemptions to the duty reflect areas in which it would rarely be reasonable to delay enforcement and mainly relate to the conduct of the tenant. For all other repossession grounds, the tribunal is the correct place to balance the rights of tenants and landlords. The type of landlord or the purpose for which the property will be used do not, in and of themselves, merit an exemption, particularly when such an exemption would remove the protection that the measures in the bill are intended to provide for tenants.

The requirement on the tribunal to take all the circumstances into account, including for the landlord, will ensure that a delay to an enforcement is only ordered when it is reasonable to do so. That will protect the interests of landlords as well as tenants. I therefore ask Willie Rennie and Meghan Gallacher not to move those amendments.

I agree. The conversations that I have had directly with Emma Roddick on the issue have absolutely strengthened my opinion that there can be—indeed, in some circumstances, there has been—a misuse of that ground. That is why the existing penalties are very strong, but, regardless of that, I think that it still can happen. One aspect of that might be the lack of monitoring, which is why I am keen that that is looked at in the review of repossessions. As with other aspects of the bill, we must not just be satisfied that something is in the legislation if it is not being used to the benefit of the tenant or, in some circumstances, the benefit of the landlord; we must look at why those things are still happening. I am sure that monitoring is one of the areas that will come up in the review of repossession grounds.

I am conscious that I am offering to work on a great deal over the summer with committee members. I am also conscious of their commitments over the summer, particularly in constituencies, and of the time limit in relation to what we can achieve before the election. I want to send that letter because I am keen to set out the Government’s suggested workload and to seek the committee’s views on that, so that there is full openness on what we expect to be able to do and in which areas.

However, I hesitate to give timeframes for each area because I am notching up quite a lot of commitments. I want to make sure, when I look at the totality, in the round, that those commitments are genuinely deliverable and that I do not overpromise—or, indeed, ruin everybody’s summer holidays to too great an extent.

Convener, I assure you that I am nearly there. I will move on to amendments 409, 413 and 414, in the name of Katy Clark. Amendment 409 would introduce a new offence, with the potential for a prison sentence, for landlords who are found to have misled the tribunal or misled a tenant into ending a tenancy. I understand and sympathise with the hardship that wrongful termination can cause, as we have mentioned, and I agree that it is vital that suitable recourse and proportionate compensation are available. However, I do not think that amendment 409 is necessary, as I have already set out in relation to amendment 141.

Amendment 413 seeks to increase the maximum penalty that can be applied for wrongful termination, from six months’ rent to 36 months’ rent. I am supportive of deterring landlord malpractice and, as I have set out, amendment 369 seeks to do that.

I sympathise with the intent of amendment 414; however, I cannot support it. As I said in relation to other amendments in the group, there are existing offences that can be used in relation to the provision of false information to tribunal proceedings, and, through the bill, we are strengthening penalties in relation to wrongful determination. Therefore, I urge Katy Clark not to move amendment 414.

Mark Griffin’s amendment 502 would prevent an eviction where the landlord has received ECO4 funding for energy efficiency measures in the previous 12 months. I recognise the good intent behind the amendment, but I cannot support it. The amendment does not enable a landlord’s circumstances to be taken into account, so it does not strike a proportionate balance between the rights of tenants and landlords.

There are existing protections through the legal framework that ensure that all circumstances of a case are taken into account when deciding whether it is reasonable to grant an eviction. I share Mark Griffin’s concern about the issue of potentially vulnerable tenants being evicted after such funding has been received. However, the design of the ECO4 scheme is decided by United Kingdom Government ministers, and they did not agree to the changes that we proposed last year to strengthen the safeguards for householders. I would welcome Mark Griffin’s support in pressing UK ministers to do that urgently, but I urge him not to move amendment 502.

For the reasons that I have set out, I ask members to support the amendments in the name of Paul McLennan. I urge Meghan Gallacher, Fulton MacGregor, Edward Mountain, Willie Rennie, Maggie Chapman, Emma Roddick, Mark Griffin and Katy Clark not to press or move their amendments. If they do so, I urge the committee not to support the amendments.

If Maggie Chapman will allow me to further reflect on that, I will come back to her.

Amendment 382 and consequential amendment 403 provide the necessary powers to make regulations subject to the affirmative procedure. That aims at allowing flexibility for the Scottish ministers to amend the pre-notice period, should monitoring indicate that a longer notice period is required.

Under current tenancy provisions, there is no requirement on a joint tenant to inform other joint tenants when they serve the 28-day notice period to their landlord. That means that there is the potential for other joint tenants to be unaware of the exact date on which the tenancy is due to come to an end, which could cause problems for tenants and their landlord. We think that there is a higher risk of that occurring when tenant relationships have broken down. That is the most likely reason why that new mechanism will be used, which is why we have lodged amendment 380 and consequential amendments 381 and 405.

Amendment 380 provides that, following service of the notice to leave, the departing tenant has seven days to provide a copy of the notice to the remaining tenants and a statement to the landlord saying that that has been done.

The Government amendments will provide further security that the process has been followed correctly and that all parties are fully informed of the on-going process and of the date on which the tenancy comes to an end. I therefore ask members to support the amendments in Paul McLennan’s name.

My reflection on Maggie Chapman’s question is that, in essence, the provision in amendment 378 comes down to trying to provide simplicity and clarity on the minimum and maximum periods. It is an attempt to make the position clear for both landlords and tenants.

As I have said to committee members and other interested parties, I am always happy to have another meeting so that members can try to persuade me further, even though they have not managed to get Government support in the run-up to stage 3. If Mr Greer would like one more try at that in the run-up to stage 3, we can do that, but I suggest that his chances of success are low. However, I will never say never and, if he would like to take me up on the invitation, I would be happy to have that discussion.

Based on the work that I have undertaken for the bill, I am content with the Government’s current position, and I do not feel that we will change our mind on that in the run-up to stage 3. I must be honest with Mr Greer. I promise to meet many people and I genuinely want to work with him, but it is important that I am realistic about his chances of persuading the Government, although I do not know about his chances of persuading other members.