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Bucking the Trend

It is not often, that a humble backbencher in Parliament can change the law - especially opposition ones. However, it does happen and for the individual MP or Peer it can be a defining moment in their career.

The mechanism in place for such opportunities for individual Parliamentarians to propose new legislation is called the Private Members' Bill (PMB). These are proposed pieces of legislation introduced by any MP or Peer who is not a member of Her Majesty’s Government. They can be introduced from either House (Commons or Lords) and there is a ballot at every parliamentary session where successful applicants are allotted a certain amount of parliamentary time in which to present their bill. (In the Commons there are two other ways of introducing a PMB; namely the Ten Minute Rule or Ordinary Presentation but these methods offer little or no chance of a bill ever becoming law.)

Even with parliamentary time, PMBs have a low rate of success so for one to succeed is notable and rare.  

In the housing sector in recent times, the only PMB I can think of that has passed into law was the Homeless Reduction Act 2017 which was introduced by a Conservative MP, Bob Blackman and was backed by the Government. It will oblige local authorities to take action to assist people threatened with homelessness, not just those who have actually become homeless. The legislation is anticipated to be enacted sometime during this year. I am not however going to deal with the detail of this law in this blog - however, you may be interested in reading the opinions of my good friend Paul Shamplina on the subject.

Other PMBs that have had some success in changing the law in our sector are the Tenancies (Reform) Bill 2014-15 which was introduced by the former Liberal Democrat MP Sarah Teather. This bill was never passed but the Coalition Government at the time adopted it and incorporated the provisions into the bill that became the Deregulation Act 2015.

Both these PMBs had the backing of the ruling party(ies) in power and this helps the process as the Government loves to claim the credit for such things.

Another Liberal Democrat, the Peer, Baroness Olly Grender can also claim some success in so far as the contents of her PMB, the Renters’ Rights Bill 2016 has been heavily influential on Government policy. The bill proposed the banning of letting agent fees to tenants, the banning of rogue landlords getting HMO licences, public access to the Rogues Database and mandatory electrical safety checks.

As we know the Government is now planning to introduce a ban on tenant fees and this is likely to happen sometime after April 2019. The action against rogues, and a prohibition on them getting licences, was incorporated into The Housing and Planning Act 2016 and it was announced that five-year testing will be introduced shortly using an enabling power in the same act. There have been no announcements yet on whether the forthcoming Rogues Database will be open to the public but given that the Mayor of London’s own list, which launched last month, is fully accessible makes me think that it might well be adopted by the Government. Baroness Grender’s bill ran out of time because the Parliamentary Session prorogued (technical term for ended!) but given nearly all of it has or will be implemented shows the influence that PMBs can have.  

As you can see, for the success of a PMB, you either need the backing of the Government, which is usually only afforded to their own members, or you are prepared for them to adopt your measures and incorporate them into their own legislation.

What is extremely rare is for the Government to back a PMB from an MP from the official opposition and to allow it the time and votes to pass. This is what appears to be about happen to a PMB that will receive its Second Reading this Friday (19th January).

The Bill, known as the
Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill 2017-19 is being introduced by the Labour MP for Westminster North, Karen Buck. Karen is a former Junior Minister and shadow minister but currently a backbencher.

The Labour party included the pledge to introduce such measures in their manifesto for last year’s General election and therefore you would expect a level of antagonism from the Tory Government to such a proposal.

However, last Monday the newly styled Ministry of Housing, Communities and Local Government, (renamed from the previous Department of Communities and Local Government – no Room 101 puns please!), announced Sajid Javid will be backing the bill therefore it is likely to become law.

This is slightly strange as this is the second time Karen Buck has introduced her bill. The first time, back in 2015, the bill was filibustered (this is where MPs in opposition to the bill talk out a bill by making a lot of long speeches until the allotted time to debate it runs out and it falls). The Labour party then proposed the measures as an amendment to the Housing and Planning Bill 2016 but twice these were voted down.

The bill has now resurfaced following Karen Buck winning the PMB ballot last July. It received its first reading and was awaiting its second reading, where the details of the bill are presented and voted on whether to proceed further. Following the Government announcement, the bill is now guaranteed to progress to committee stage and whilst it is still subject to amendment, it has the backing to pass into law.

There is much speculation on why this change of heart by the Government but it is likely that the post mortem of the tragedy at Grenfell Tower has focused the Minister on safety and tenants’ rights. The bill has all-party support and the backing of both the NLA and RLA, as well as Shelter.  

It should be noted that the proposed legislation will only apply to England. However, Scotland already has measures in place and Wales is in the process of looking at standards, having gone out to consultation, which ended last Friday.

So what does the bill propose? In essence, it will replace Section 8 of the Landlord and Tenant Act 1985 (not to be confused with Section 8 of the Housing Act 1988 which relates to possession) and amends the Building Act 1984. The bill essentially empowers tenants to be able to seek legal action against landlords for repairs and to improve property conditions that are essential to reach a standard for human habitation.

It also seeks to oblige local authorities to enforce such standards on the private and social housing sectors. Currently, tenants cannot take private action without the support of their Council and many cash-strapped authorities barely enforce standards and often restrict it to only the most vulnerable, those on housing benefit or who have been placed in accommodation from the local housing list. You can read the bill in full here.
 

From a redress scheme point of view, we welcome the direction of the bill and add our voice to the widespread backing put forward by the industry. As a scheme we currently only have a remit to deal with the service provided by agents - repairs and the condition of the property are ultimately the responsibility of the landlords. We are in support of extending redress to be mandatory for landlords but we’re also mindful that, even then, we will only be able to make awards to tenants for compensation for poor service and failure to undertake works. We will be unable to enforce a landlord to actually carry out the works.

This bill will make it easier for tenants to hold their landlords to account and, ultimately, ask a court to enforce the appropriate standards. It should mean that, in conjunction with extending redress to landlords, the changes to rent repayment orders, the changing rules on Private Rented Property standards relating to EPC rating (due to come into force in April)  and imminent electrical testing - the war on substandard properties in the private rented sector will have a formidable arsenal to draw on.

The bill could still falter - many MPs and Peers are landlords and may still have an axe to grind against further regulations. They may launch, as they did before, an attempt to talk or amend the bill out of existence. However, with Government support, the influence of the whips, and the rule that if a hundred or more MPs are present in the chamber a vote must occur, Parliament will most likely steer the legislation through.

My view is that most agents will support the measure as it will mean that they will have more leverage on landlords who fail to undertake their obligations and kick up a fuss over the cost. It will mean that it will be easier for agents to get rid of these awkward customers and allow them to intervene and undertake essential repairs without the permission of the landlord on the premise they are acting in their principal’s best interest. It adds greater credence to the measures against retaliatory eviction and will help raise standards in the sector. It is another cog in the wheel and another step towards a reputable and professional industry.

Now for the resources and enforcement to make these changes happen - but that is another story!

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