75th Report, 2015 (Session 4): Private Housing (Tenancies) (Scotland) Bill at Stage 1

SP Paper 843 (Web)

Contents

Introduction
Overview of the Bill
Delegated Powers Provisions
Annexe

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and

(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule; and

(i) any Consolidation Bill as defined in Rule 9.18.1 referred to it by the Parliamentary Bureau in accordance with Rule 9.18.3.

Membership:

Nigel Don (Convener)
John Mason (Deputy Convener)
Richard Baker
John Scott
Stewart Stevenson

Private Housing (Tenancies) (Scotland) Bill at Stage 1

Introduction

1. At its meetings on 3 November and 1 December 2015 the Delegated Powers and Law Reform Committee considered the delegated powers provisions in the Private Housing (Tenancies) (Scotland) Bill at Stage 1 (“the Bill”)1. The Committee submits this report to the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

2. The Scottish Government has provided the Parliament with a memorandum on the delegated powers provisions in the Bill (“the DPM”)2.

3. The Bill was introduced by the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights on 7 October 2015. The Bill seeks to make provision about private rented housing; in particular to establish a new type of tenancy to be known as a private residential tenancy. The lead Committee for the Bill is the Infrastructure and Capital Investment Committee.

Overview of the Bill

4. Part 1 of the Bill (sections 1 – 4) defines the new private residential tenancy. Schedule 1 lists tenancies which cannot be private residential tenancies: low rent tenancies, shop tenancies, licenced premises, agricultural land (assuming it is let as an agricultural let), student lets (let by educational institutions), holiday lets, tenancies where the landlord is also resident, social housing tenancies, tenancies granted on a temporary basis to homeless persons, short-term lets to offenders, tenancies granted to asylum seekers, tenancies for the purposes of providing accommodation to displaced persons, tenancies under a shared ownership agreement, a tenancy under previous legislation (Rent (Scotland) Act 1984; Housing (Scotland) Act 1988).

5. Part 2 of the Bill (sections 5 – 7) provides for statutory terms of the tenancy. Scottish Ministers may set the terms by regulations. Those regulations must include the terms set out in schedule 2 as a minimum. The terms in schedule 2 provide for rent receipts, rent increases, notification to the landlord or other persons over 16 living in the accommodation, restrictions on sub-letting, and permitting access for repairs.

6. Part 3 of the Bill (sections 8 – 15) requires a landlord to provide a written tenancy agreement to the tenant. It provides for timescales to do so. The landlord is not permitted to charge for providing the written tenancy agreement. Failure to provide a written copy of the tenancy agreement allows the tenant to apply to the First-tier Tribunal to fix the omission. The First-tier Tribunal may also be asked by the tenant to sanction the landlord to pay no more than 3 months’ rent to the tenant, but only if the landlord is unable to demonstrate a reasonable excuse for failure to comply with Part 3.

7. Part 4 of the Bill (sections 16 – 34) makes provision for the determination of rent under the new tenancies. The main provisions allow for rent to be increased only once in a 12 month period, with an appeal to a rent officer who may set an open market rent. A further appeal lies to the First-tier Tribunal. Chapter 3 of Part 4 provides powers to Ministers to designate rent pressure zones. If so designated, all rents in the zone can only be increased by a fixed formula which is set out in the Bill (section 31) and which is linked to the consumer prices index.

8. Part 5 of the Bill (sections 35 – 53) provides for termination of a private residential tenancy. The key elements of the new termination provisions for these tenancies is that there are specific grounds listed in schedule 3 which will enable the landlord to recover vacant possession (eviction).

9. Part 6 of the Bill (sections 54 – 56) provides for the continuation of the tenancy in certain circumstances upon the death of a sole tenant.

10. Part 7 of the Bill (sections 57 – 58) provides for consequential modifications (in schedule 4) and transitional provisions (in schedule 5).

11. Part 8 of the Bill (sections 59 – 63) contains the ancillary, regulation-making, interpretation, commencement and short title provisions of the Bill.

Delegated Powers Provisions

12. The Committee considered the delegated powers in the Bill. At its first consideration of the Bill, the Committee determined that it did not need to draw the attention of the Parliament to the delegated powers in the following provisions:

  • Section 3(1) – Power to modify schedule 1

  • Section 5(1) and (3) – Statutory terms of tenancy

  • Section 15(3) – Notice to landlord of tenant’s application to First-tier Tribunal to draw up terms of the tenancy or for an order for payment under section 14(2)

  • Section 19(2)(b) – Notice relating to landlord’s power to increase rent

  • Section 20(4) – Form of notice and fee where tenant refers proposed rent increase to rent officer

  • Section 29(2) – Duty on rent officers and the First-tier Tribunal to make information about rents available

  • Section 30(2) – Power to designate a rent pressure zone

  • Section 34 – Power to change inflation index

  • Section 50(3)(b) – Sub-tenancy notice to leave

  • Section 51(3) – Variation of initial period

  • Section 52(1)(d) – Meaning of notice to leave

  • Section 59(1) – Ancillary regulations

  • Section 62(2) – Commencement

13. At its meeting on 3 November, the Committee agreed to write to the Scottish Government to raise questions on the remaining delegated powers in the Bill. This correspondence is reproduced at the Annexe.

14. Having considered the Scottish Government response, the Committee reports that it finds the following delegated powers to be acceptable in principle and is content that both powers are subject to the affirmative procedure:

  • Section 9 (1) – Duty to specify information

  • Section 10 – Regulations about provision of information

15. The Committee therefore reports that it is content with the delegated powers provisions contained in the Bill.

Annexe

Correspondence with the Scottish Government

On 3 November 2015, the Committee wrote to the Scottish Government as follows:

1. The Delegated Powers and Law Reform Committee considered the above Bill on Tuesday 3 November and seeks an explanation of the following matters:

Section 9(1) – Specified information

Power conferred on: the Scottish Ministers
Power exercisable by: regulations made by Scottish statutory instrument

Parliamentary procedure: affirmative

2. Section 9(1) enables the Scottish Ministers to make regulations which impose a duty on landlords to provide tenants with information which is to be specified in the regulations. That information will be required to be sent to the tenant by a deadline which will also be specified in the regulations.

3. The Committee asks the Scottish Government whether the information could be specified in the Bill:

The Committee asks the Scottish Government whether consideration has been given to including, on the face of the Bill, the proposed specified information under section 9(1) of the Bill which a landlord will be under a duty to provide to a tenant?

The Committee asks the Scottish Government whether they would consider it appropriate to include such information on the face of the Bill in a similar manner to the approach taken with the statutory terms in schedule 2?

Section 10 – Regulations about provision of information

Power conferred on: the Scottish Ministers
Power exercisable by: regulations made by Scottish statutory instrument

Parliamentary procedure: affirmative

4. Section 10 allows Ministers to make regulations specifying how the duty to provide information which arises under sections 8 (duty to provide written terms of tenancy) and 9 (duty to provide specified information) is to be performed. The regulations may also specify the circumstances when the duty is deemed to have been performed.

5. The Committee asks the Scottish Government whether the details about the provision of information could be specified in the Bill:

The Committee asks the Scottish Government whether consideration has been given to including the proposed provisions about how a duty arising under section 8 or section 9 of the Bill is to be performed on the face of the Bill rather than in regulations under section 10?

On 23 November 2015 the Scottish Government responded as follows:

I thank the Delegated Powers and Legislative Reform Committee for its letter of 3 November 2015.

The Committee asked three questions to which I provide the following responses.

The Committee asks the Scottish Government whether consideration has been given to including, on the face of the Bill, the proposed specified information under section 9(1) of the Bill which a landlord will be under a duty to provide to a tenant?

We considered including, on the face of the Bill, the information which a landlord will be under a duty to provide to a tenant. However, this is an administrative requirement and we are of the view that it is therefore best addressed by the use of subordinate legislation. This is in line with how provision on such requirements has been dealt with previously (for example, the Tenant Information Packs (Assured Tenancies) (Scotland) Order 2013 (S.S.I. 2013/20)).

In addition to the subject matter being of an administrative nature, the information which will be specified under this power has not yet been identified. The key information that tenants will always need and want is of course their written tenancy terms. The requirement for landlords to provide that information is stated on the face of the Bill, in the form of section 8.

What further information landlords should be required to provide to tenants is something on which the Government plans to consult landlords, tenants, and groups representing their interests. As that consultation has not yet taken place, the Government considers it would be premature to put any further information requirements on the face of the Bill. But of course the Government will be happy to consider any suggestions members may have that in regard.

At this stage though, as the Government intends to consult on further information requirements, and as the requirements may need to change in light of future developments, the Government considers it most appropriate to leave their specification to regulations. As the power to make the regulations is subject to affirmative procedure, Parliament will have the opportunity to consider the provisions fully if and when any regulations are laid in draft.

The Committee asks the Scottish Government whether they would consider it appropriate to include such information on the face of the Bill in a similar manner to the approach taken with the statutory terms in schedule 2?

The approach taken with the statutory terms in schedule 2 is that the terms of every private residential tenancy are to be set out in regulations and the terms that are so set out must usually include those terms in schedule 2 (though there is provision to create exceptions). In effect, the terms in schedule 2 are read into the tenancy agreement to be agreed between the parties which will also include other prescribed terms, and further terms that the parties themselves create which are specific to the individual tenancy. We have set out statutory terms in schedule 2 but there are almost certainly more to be added during implementation and in the future.

The ability to make regulations prescribing the statutory terms ensures that the private residential tenancy can evolve with new statutory terms applying to tenancies entered into after the new terms are in force as any new terms will not have retrospective effect. When the prescribed terms are altered new regulations can be made which set out afresh in full what terms are required. The fact that regulations are being used will make it simpler for the parties to know which set of terms apply to their tenancy by being able to identify which regulations were in force when the tenancy began.

As the Government does not consider it appropriate to include the specified information on the face of the Bill (for the reasons set out above), it follows that the Government does not consider it appropriate to include the information on the face of the Bill in a similar manner to the approach taken for statutory terms.

The Committee asks the Scottish Government whether consideration has been given to including the proposed provisions about how a duty arising under section 8 or section 9 of the Bill is to be performed on the face of the Bill rather than in regulations under section 10?

We considered including, on the face of the Bill, provisions about how the duty to provide written terms of the tenancy and specified information is to be performed. However, we think this level of administrative detail is best left to regulations.

It will be necessary to consult landlords, tenants, and groups representing their interests to ensure that all appropriate methods of communication are explored. It is possible that the regulations may end up making relatively detailed provision covering a number of different eventualities. Some landlords and tenants may prefer to use traditional paper documents; others may prefer to use electronic documents, emails or even text messages.

Of course as technology moves on, so the ways in which it is appropriate to provide this information may change. For this reason, flexibility in the form of a regulation-making power is essential. It would not be a good use of parliamentary time to require primary legislation every time there is a desire to allow information to be given by some new means. Use of subordinate legislation for this sort of thing is, for that reason, commonplace. As the power to make the regulations is subject to affirmative procedure, Parliament will have the opportunity to consider the provisions fully when regulations are laid in draft.


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites

Footnotes:

1 Private Housing (Tenancies) (Scotland) Bill [as introduced] is available at the following website: http://www.scottish.parliament.uk/S4_Bills/Private%20Housing%20(Tenancies)%20(Scotland)%20Bill/SPBill79S042015.pdf [accessed December 2015]

2 Private Housing (Tenancies) (Scotland) Bill Delegated Powers Memorandum is available at the following website: http://www.scottish.parliament.uk/S4_Bills/Private%20Housing%20(Tenancies)%20(Scotland)%20Bill/SPBill79DPMS042015.pdf [accessed December 2015]

Back to top

This website is using cookies.
We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we’ll assume that you are happy to receive all cookies on this website.