Contribution
My Lords, I begin by referring to my interests as recorded in the register. I add that I am the proprietor of properties in London that are the subject of tenancy agreements and are managed by an agent.
In this group we have Amendments 87 and 88 in similar terms. Amendment 87 deals with an issue in Clause 41. It concerns the right of a local authority association to impose financial penalties and the burden of proof on that authority in respect of those penalties. I seek your Lordships’ leave to put this into context. Clause 41, on page 58 of the Bill, provides that:
“A local housing authority may impose a financial penalty under this subsection on a person if satisfied on the balance of probabilities that the person has breached a requirement imposed by … regulations made under section 40”.
Clause 58, on page 90, refers to a local housing authority being able to
“impose a financial penalty under this subsection on a person if satisfied on the balance of probabilities that the person has breached the prohibition imposed by section 57”.
But in Clause 67, which can be found on page 109, we have the provision that:
“A local housing authority may impose a financial penalty on a person if satisfied beyond reasonable doubt that the person has … breached regulations”.
It is again a regulatory offence, but with a significantly different burden of proof placed on the same local housing authority.
Clause 92, on page 126, provides that:
“A local housing authority may impose a financial penalty on a person if satisfied beyond reasonable doubt that the person has … breached a requirement imposed by section 83(1), (2) or (3)”.
That, in turn, refers to certain regulatory requirements that may be imposed on landlords.
So where do we find ourselves? We find ourselves in a situation in which a local authority is to be empowered to impose financial sanctions on landlords for breaches of regulations and yet, depending on which regulation is referred to, the burden of proof shifts between “balance of probabilities” and “beyond reasonable doubt”. The first point I make is that there is clearly a need for some kind of uniform standard in this legislation. What on earth will a local authority do when faced with the prospect that there may be multiple breaches of regulations, but different standards of proof applied in respect of whether they can find a breach? It produces a nonsense result.
Indeed, in circumstances where a local housing authority is entitled to impose very serious financial penalties running into thousands of pounds for breaches of regulations, I suggest that it is only appropriate that the relevant standard of proof should be that in any criminal proceedings—namely, “beyond reasonable doubt”. Otherwise, there is not only the risk of confusion, because of the different standards applied between different regulations in the legislation, but the very real risk of wrongful penalties being imposed in circumstances where a local housing authority thinks, “There may have been a breach of regulations—it’s in the balance, but we think there probably is—so we’ll fine them £7,000”. On the next alleged breach of regulation, they would say, “It’s in the balance, so we can’t possibly impose any kind of financial penalty”. It really is a nonsense.
It also, I respectfully suggest, raises a question of fairness and proportionality. Is it truly fair that we should have one set of regulations that can be met by way of a breach “on balance” and another that requires a proper standard of proof—namely, “beyond reasonable doubt”? It will also place pressure on local housing associations and their resources. Are they really equipped to distinguish between those two standards of proof for different sets of regulations?
Amendment 87 would amend the reference in Clause 41 to a housing association proceeding on the “balance of probabilities” and substitute the requirement for the standard to be “beyond reasonable doubt”. In Amendment 88 I seek to make the same amendment in order that Clauses 41 and 58, about the powers of a housing association and breaches of regulation, are simply brought into line with the provisions of Clauses 67 and 92 of the same Bill. I beg to move.