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Housing and Regeneration Act 2008 (Consequential Amendments to the Mobile Homes Act 1983) Order 2011

My Lords, I shall say just a few words about the arrangements made by these statutory instruments regarding the so-called transit pitches. However, I must make a comment on what the noble Lord, Lord Avebury, has just said on the nomenclature. Years ago, when I was at the Bar, I got involved in a case involving some children who had been taken from their mother and secreted in some caravans where some Gypsies resided. When the case eventually reached court and I was cross-examining, and I said, ““I don’t know why you’re so upset, because my client too is a Gypsy””, the answer was one of scorn. I was told, ““He’s not a Gypsy—he’s nothing but an Irish tinker””. But he was certainly a Traveller. One has to be careful about who one is calling a Gypsy, because the expression does not necessarily extend to all nomadic Travellers who live in mobile homes and caravans. Be that as it may, I shall make some remarks about the arrangements made for the so-called transit pitches. These are defined in the statutory instrument as, "““a pitch on which a person is entitled to station a mobile home … for a fixed period of up to 3 months””." As I understand it, these transit pitches are needed by local authorities—this applies only to local authorities—because from time to time there are eviction orders made against Gypsies/Travellers who have been stationing their caravans or mobile homes on private land; the landowner has obtained an eviction order so they have to move—and the question is where they can move to. The local authorities want to have available sites—I am speaking as a matter of belief, and I must be corrected by the Minister if this is wrong—where they can be decanted from the site from which they have been evicted as an emergency matter, hence the need that the local authorities’ transit pitches should not be permanently occupied. The distinction is between permanent sites and transit sites. The Mobile Homes Act 1983 said nothing whatever about transit pitches, so the arrangements now made are entirely new. The arrangements are made by adding to the schedule to the 1983 Act a new Chapter 3 setting out the manner in which transit sites and transit pitches will be dealt with. Paragraph 1 of the new arrangements says that, "““the right to station the mobile home on the transit pitch subsists until the fixed period””—" that is, something up to three months— "““set out in the agreement expires or termination of the agreement under paragraph 3 or 4””." Those are the two paragraphs that I want to direct my remarks to. Paragraph 3 says that the occupier, the Gypsy/Traveller, "““may terminate the agreement before the expiry of the fixed period … by giving written notice””." Unusually, in my experience, it says nothing about the length of notice that has to be given. The statutory requirement on written notices usually says what the length of the notice should be. The statutory instrument does not. So, presumably, the occupier can simply on his way out of the site in question leave a notice that says that he will not be returning. If that is what is meant by a written notice, it is understandable. If it is not what is meant by a written notice, then some addition indicating the length of the notice should be added. It is interesting to notice that in the new Chapter 4, which deals with permanent sites, the occupier who wants to terminate the agreement has to give four weeks’ notice, but that does not apply to a notice to terminate the right to stay on a transit site. That is an oddity. I do not know whether it is an intended oddity or, if it is intended, the reason for it. Perhaps the Minister can assist in that respect. Paragraph 4 deals with a termination notice given not by the occupier but by the local authority—by the owner. Paragraph 4(a) says that, "““without being required to show any reason””," the local authority can give four weeks’ notice in writing. So, apparently, the local authority can on day one enter into an agreement with the Gypsy or the Traveller purporting to allow the Gypsy or Traveller to stay at the site for up to three months, and on day two, day 10 or day 20, as the case may be, the local authority, without giving any reason, can hand the occupier—as the Gypsy/Traveller has become—a four-week notice to terminate the agreement. That, to my mind, is an extraordinary state of affairs. It is not a condition of the right to serve such a notice, a four-week notice, that there has been any breach of the agreement on the part of the occupier—no disrepair, no nuisance of noise, no harassment of other occupants of the site; simply the decision of the local authority to serve the four weeks’ notice. It would not perhaps matter so much if it was clear to the occupier that this was something that could be exercised to his detriment, but there is no requirement that I have been able to find anywhere that the implied terms which are required by statute—by the statutory instrument—to be read into the agreements between the local authority and the occupier are to be committed to writing anywhere. All the occupier may know is that he has been told, ““You can stay here for up to three months””. If there is a provision to that effect, that is important, but I have not been able to find it in any of the documents I have looked at. I notice that in one of the other statutory instruments, the Housing and Regeneration Act 2008 (Consequential Amendments to the Mobile Homes Act 1983) Order 2011, it said: "““The consequential amendments set out in article 2 of this Order provide for—""(a) an amendment to section 1 of the 1983 Act so that the right of an occupier to apply to the court or a tribunal if the owner fails to provide a written statement is disapplied for occupiers of transit pitches””," and, "““(b) an amendment to section 2 of the 1983 Act so that the right of a party to the agreement to apply to the court or a tribunal as to the terms of the agreement within 6 months … is disapplied for transit pitches””." So it appears to me that there is no compulsory means by which the occupier can be made aware of the possibility of his believed three-month sojourn on the transit pitch being terminated by four weeks’ notice. It may be said that it is all there in the statutory instrument, but I suggest that not many of the Gypsies/Travellers who occupy these transit sites read statutory instruments. This seems simply unfair. It would be very easy to deal with it by slightly different drafting. It could be said that the right to remain on a transit pitch should be four weeks renewable, so that at the end of each four weeks it would have to be renewed. Then the occupier would know where he or she stood. As it stands at present, however, I suspect there will be considerable annoyance and anger on the part of occupiers who think they have got the right to remain for three months and suddenly discover that the three months has been reduced to four weeks without any reason being given. There is nothing the matter with the policy behind these provisions; it is the drafting that needs some radical revision so that that particular matter of potential conflict does not arise. So much for paragraph 3. Paragraph 4 deals with the termination notice given by the local authority. There are two different limbs to it. Paragraph 4 provides two conditions which the owner must satisfy: "““(a) without being required to show any reason, by giving written notice not less than four weeks””," Or the notice can be given: "““(b) forthwith, where—""(i) the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time””." So that is a condition for giving the forthwith notice. But there is another condition expressed for giving a forthwith notice which has caused me to scratch my head with puzzlement. The second condition is that, "““the owner””," in other words, the local authority, "““considers it reasonable for the agreement to be terminated””." The owner has served the notice so of course the owner considers it reasonable for the agreement to be terminated, otherwise they would not have served the notice. This has simply been lifted from the entirely regular provision in Chapter 4 that says that, "““the court …considers it reasonable for the agreement to be terminated””." That one can understand but what is one to make of a requirement that the owner who has served the notice considers it reasonable for the agreement to be terminated? What would a lawyer who was asked to advise an aggrieved occupier make of that? The lawyer would say that the court, the tribunal now, could inquire into this. If there is no reasonable ground on which the local authority could consider it reasonable for the agreement to be terminated, judicial review might be available to quash the satisfaction of that condition. If the statutory instrument goes forward and becomes law in its present form, there will be those in chambers in Lincoln’s Inn and the Temple who will be rubbing their hands with glee at the thought of the mayhem they can make with this provision. I think they will say that it cannot simply be that the owner considers it reasonable and that is that, or why have it at all? They owner has served the notice. There must be some sort of requirement whereby the owner’s decision that it is reasonable can be tested and challenged. However, that cannot be intended, because that would throw the consideration back to the court/tribunal. Here again, this is a drafting problem. I am sorry—I did not want to interrupt the instruction given by the noble Earl to the noble Baroness.