Lord Keen of Elie:

Moved by Lord Keen of Elie

87: Clause 41, page 58, line 4, leave out “on the balance of probabilities” and insert “beyond reasonable doubt”Member’s explanatory statementThis Amendment, in conjunction with another amendment in the name of Lord Keen of Elie to clause 58, imposes a uniform standard of proof – beyond reasonable doubt – where the local housing authority imposes a financial penalty.

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.

My Lords, I will speak to Amendment 104 in my name in this group and, in doing so, I declare my interest as a trustee of the Nationwide Foundation. First, I thank my noble friend Lady Taylor of Stevenage for the excellent meeting we had, together with the noble Lord, Lord Cromwell, and renter groups Safer Renting, ACORN and the Renters’ Reform Coalition. I also thank my noble friend for the subsequent letter she sent, responding to the points raised at the meeting and for the additional conversations that I understand have taken place between Safer Renting and her officials.

Amendment 104 seeks to change the standard of proof required for rent repayment orders, based on offences under the Protection from Eviction Act. Currently, tenants must prove their case to a criminal standard, beyond reasonable doubt, even though these are civil proceedings in a civil tribunal. This change would make rent repayment orders a realistic option for renters who are victims of illegal eviction and harassment—serious offences that cause immense harm. As we know, most illegal evictions and harassment occur behind closed doors, without witnesses, and I appreciate that my noble friend Lady Taylor of Stevenage recognises that these offences are harder to prove than other rent repayment order offences. The available evidence rarely meets the criminal standard, but may clearly satisfy the civil standard of balance of probabilities.

Civil claims for illegal eviction and harassment already use the civil standard and can carry far higher penalties. The definition of the civil wrongs of illegal eviction and harassment in the Housing Act 1988 uses the same definition as in the Protection from Eviction Act. For all intents and purposes, there is no distinction between the conduct targeted by both Laws. Aligning the standard in rent repayment cases would bring consistency, fairness and a real access to redress.

The problem is clear. Research shows that at least 16,000 illegal evictions occurred in 2021-22, yet there were only 31 successful rent repayment orders made for those offences. This shows that the current system deters valid claims and does not provide a realistic route to redress for renters. It is vital that tenants can enforce their rights against criminal landlords. Yes, it is a small minority of landlords, but they are criminal landlords whose impact on renters’ lives, health and well-being is immense. As we heard in Committee, because the rent repayment mechanism is ineffective, these criminals gamble on breaking the law, knowing how hard it is for tenants to prove their case. Amendment 104 would make justice more attainable for renters and allow them to take a leading role in holding landlords to account.

I note from my noble friend Lady Taylor of Stevenage’s letter on this issue—copied to me and the noble Lord, Lord Cromwell—that the Government are minded not to change their view on the standard of proof at this point. Of course, this is disappointing. However, I very much appreciate my noble friend’s acknowledgement that rent repayment orders are not currently working as well as they should for illegal eviction and harassment offences. As well as my noble friend’s commitment to monitor the impact of changes to rent repayment orders, this is very welcome. Collecting the right data will be required to assess whether rent repayment orders are working as intended in cases of illegal eviction and harassment after this Bill becomes law.

Moreover, I very much welcome my noble friend’s commitment to continue to work with noble Lords and stakeholders to assess whether rent repayment orders are working for illegal eviction and harassment offences, with a view for potential changes down the line. I ask my noble friend: can we now start gathering the evidence needed to assess the scale and impact of the problem? In addition to the report as set out by the noble Lords, Lord Cromwell and Lord Best—I very much support Amendment 113—will my noble friend Lady Taylor of Stevenage consider publishing PRS enforcement data, provided by local authorities, to include a record of the number of reports of suspected illegal eviction or harassment received by the authority, so we can get a better understanding of the scale of the problem? Will she consider mandating local authorities to provide the department with PRS enforcement data, instead of data reporting being voluntary, so again we can get a more complete dataset? Will she work with the Ministry of Justice to collect and publish regular data on rent repayment orders to facilitate monitoring of the system in respect of the volume and success of applications alleging illegal eviction and harassment?

Finally, as well as the issues renters face accessing redress through rent repayment orders, since 2012 there has been an 80% reduction in legal aid applications for bringing cases of illegal eviction and harassment in the civil courts. Therefore, if at all possible, could my noble friend Lady Taylor of Stevenage assist me, Safer Renting and other noble Lords in getting a meeting with a Minister or an official at the MoJ to discuss the availability of legal aid for civil cases involving illegal eviction and harassment?

My Lords, it is a great pleasure to follow the noble Baroness, Lady Kennedy. I have also enjoyed my encounters with the Minister, with her, to discuss these issues. I rise to speak to Amendment 110 in my name. I am very grateful for the support of the noble Lords, Lord Hogan-Howe and Lord Best, who have added their names. Between them, they bring unsurpassed knowledge of both policing and housing matters, which are both very relevant to this amendment. I am also grateful to the organisations Safer Renting and ACORN for their assistance in highlighting the need for this amendment, and of course to the Bill Office for its clear and effective drafting.

This amendment is distinct from others in this group, as it does not deal with standards of proof. Rather, as I outlined at Second Reading and in Committee, it addresses the difficulties faced by those at the bottom end of the rental market and most at risk from abusive landlords. It is these people, the economically and socially vulnerable, who are the most likely to face illegal and sometimes forcible evictions. They are often also the least equipped to resist such behaviours.

A core problem that emerged in discussions with tenant organisations at the sharp end is insufficient clarity of understanding about what the Protection from Eviction Act 1977 requires of the police. There is a widespread and incorrect belief among police officers that illegal evictions are civil matters. This has resulted in a tiny number of prosecutions for illegal evictions. Indeed, statistics show that the police have not acted in 91% of cases.

I do not want to stretch the House’s patience with detailed case studies, but three quick examples will give colour to the types of incidents we are concerned about. A tenant returned to their flat to find that the landlord had changed the locks. When the police were contacted, they threatened to arrest the tenant for obstruction of the landlord and assisted in the removal of the tenant’s belongings. In other cases, landlords used tactics such as intimidation and turning off the water supply, as well as threatening and actually using force. When tenants called the police, they were told that it was a civil matter and to call back when an actual crime was being committed. In other cases, tenants went to the police station, but were turned away repeatedly on the basis that such evictions are a civil matter.

In Committee, I put down an amendment to clear up this misunderstanding of the law and improve co-ordination between the police and local authorities. It did not gain government support, which I find very disappointing, not least given the Bill’s avowed focus on those most in need of help. The Government’s response did address the co-ordination point, citing extra work for the authorities and police, and the instance of Liverpool, where the Minister has personal experience of such co-ordination working well.

Tenant bodies involved in the issues reflected in my amendment met with the Minister, and afterwards I received a copy of a letter from the Minister to them. I am, of course, very grateful for the Minister’s considerable engagement, but that letter does not address the role of the police in preventing or stopping illegal evictions before or as they happen. Where it does refer to the substance of today’s amendment, it says that the abolition of Section 21 will

“strengthen the tenants’ ability to argue that they were unlawfully forced out of their homes”.

With the greatest respect, that is very wide of the issue. It is a point for legal argument that may come up if the evicted tenant ever manages, or indeed dares, or can afford, to bring a legal claim against the landlord who put them out on the street. I remind noble Lords that we are dealing here with landlords who care little for the niceties of the law—people whom the Minister’s letter refers to as a

“small minority of unscrupulous landlords”.

But we have repeatedly been told that the purpose of the Bill is exactly to tackle these unscrupulous landlords.

This amendment has dropped reference to local authorities and focuses fully on the core legal issue. It requires a report to establish the level of understanding among tenants, landlords and the police of the criminal nature of illegal evictions and clarification of the correct legal situation, and the incorporation of that legal position and how it should be dealt with in the training of the police.

This is a modest amendment, but it is critical for those facing or experiencing illegal evictions or who feel powerless in the face of the violent actions of their landlords and find that the police seem to be against them when they should be protecting them. Not least, it is critical for police officers themselves, who are trying to follow and apply the law and do the right thing.

In Committee, I asked the Government to bring forward their own amendment to address this issue. They have chosen not to do so, instead writing to say that they are

“working towards updating the department’s guidance”.

That is simply not sufficient when we have one of the few opportunities in the Bill to address a real and terrible day-to-day experience of vulnerable renters. On this modest amendment, I believe we should stand firm. Its requirements are clear, deliverable and highly impactful on those most in need of our help through the Bill. I will, of course, listen to what the Minister says in response, but I anticipate seeking the view of the House on this amendment.

My Lords, I will speak to Amendments 87, 88 and 103, which I have signed. I add my thanks to the Minister, who has engaged with me on these amendments, among others in the Bill. She has always been courteous and has had good points of view.

These amendments were originally drafted by the late noble and learned Lord, Lord Etherton. To double-shot Lord Etherton’s efforts in this area, I signed them in Committee. The amendments have been taken over and very ably introduced by the noble and learned Lord, Lord Keen of Elie.

Lord Etherton viewed this selection of amendments as being his effort to try to manage a quasi-judicial process. He was looking at it, of course, with a very practised eye, having been the Master of the Rolls. He was fully knowledgeable on the various large civil penalties that are in the Housing and Planning Act 2016, for which the Ministry of Housing, Communities and Local Government issued a 20-page memorandum to help local authorities through this particular maze of quasi-judicial process.

The problem, as Lord Etherton saw it, was that this was not a level playing field for local authorities. The best local authorities would have plenty of highly trained resources to look into a quasi-judicial matter with great fairness, and promptly—promptness being important for both sides of any argument. However, the local authorities whose resources were most stretched or at the bottom end of the quality scale would produce problems. Lord Etherton felt that it was important to set the law in this area so that it would be not for the best or the average local authority but at a reasonably modest rate, so that every local authority could execute, with fairness, whatever quasi-judicial issues they were dealing with. Therefore, with Amendments 87 and 88, he was keen that the standard of proof should move from the balance of probabilities to beyond reasonable doubt. He felt that was more in keeping with how the Housing and Planning Act 2016 had turned out.

Moving on to Amendment 103, Lord Etherton noted that there were some large penalties in that Act, the highest penalty being £30,000. The £40,000 penalties we see in this Bill are, I suppose, simply £30,000 grossed up for inflation. He was not worried necessarily about £40,000 as an amount—it was consistent with the £30,000, as he saw it—but he was worried that, under the Housing and Planning Act 2016, the £30,000 penalties were available only where the mental element was intention and not for offences where the mental element was recklessness.

Of course, there is a great difficulty in the law for deciding what the difference is between negligence, recklessness and intention. It is very much something on which, in the judicial process, a great deal of training is given to try to allow courts and judges to be utterly consistent up and down the land so that one has clarity for negligence, recklessness and intention. Lord Etherton’s feeling was that recklessness is very difficult. The 20-page memo for the Housing and Planning Act 2016 will be considerably longer if one is going to try to educate local authorities on what “recklessness” truly means. So he was very keen to remove recklessness from Clause 93. I would be very grateful if I could hear where the Minister feels Lord Etherton was wrong in his analysis on that point.

My Lords, I support the Amendment from the noble Lord, Lord Cromwell, to which I added my name. Sadly, he is right: the police do not have sufficient knowledge about the law changes, which are now quite old. I suspect the reason is that the complaints tend to be infrequent, but of course it can be a Catch-22 because, if people do not think that their complaints will be listened to, they do not tend to make them. But, in the process, that means that the police have probably not kept pace with the law as it has changed, and with the needs of complainants.

Traditionally, the police did get involved, even in civil disputes, usually to prevent a breach of the peace, because people were worried there would be violence. Sometimes, a tenant might have access to a firearm, so there would be pre-work to make sure that that was removed from the scene so things could not get more serious.

This seems a reasonable step. I could not necessarily give the amendment that level of support in Committee because I thought there was a danger that it was directing the police to do certain things. All this tries to do is establish the level of the problem and what can be done about it so that the police perform their duty. The risk is that, at the moment, they are not.

Obviously, the amendment may or may not be accepted, but there are some fairly straightforward ways in which it could be helped. The Chief Inspector of Constabulary goes around and inspects every force every year and, if it were put on the list of things to look at, that would certainly make the police think about it. Tenants having a single point of contact within a force would mean that at least one person—or two or three people, or a department—could provide this knowledge and expertise for the officers on the street. That would be helpful. Carrying on as we are is not fair on the tenants, and it is not proper if Parliament has decided that this is a criminal act and the police have a role to play. So I support this amendment; it is a reasonable step. If the Government do not accept it, they might want to make it clear how they will address the gap.

My Lords, I will briefly support Amendment 110 in the names of the noble Lords, Lord Cromwell and Lord Hogan-Howe. I am grateful to Safer Renting, ACORN and the Renters’ Reform Coalition for bringing this matter to our attention. My noble friends have noted that this is a milder and more focused version of the amendment from the noble Lord, Lord Cromwell, debated in Committee, calling only for a review of the legislation that covers the duties of the police in respect of illegal evictions.

Although the amendment places a very modest obligation on the Government—namely, simply to publish a report on the position—this would be a good first step toward addressing a highly unsatisfactory state of affairs. It is clear that the Laws against illegal and sometimes violent evictions are not being enforced. I see from the statistics that there were over 16,000 illegal evictions in 2022-23, and the police did not act in over 90% of cases. The underlying problem is surely not because of any malice on the part of the police officers but because of ignorance of what should be done and of the priority this should receive. The report that this amendment would elicit would clarify matters and make the recommendations that are needed to end wrongful and criminal practices by the very worst landlords. I am delighted to support the amendment.

My Lords, Amendments 87, 88 and 104, as we have heard, seek to raise the burden of proof to that of the criminal standard, “beyond reasonable doubt”, from the civil standard, “on the balance of probabilities”, consistently across the Bill. All the amendments in the next group, on financial penalties, seek to lower the amount of money an enforcing council can fine a landlord. This group and the next are, to me, heads and tails of the same coin. Seen together, both sets of amendments seek to considerably help landlords by raising the standard of proof for an offence and lowering the fine if they are in breach of it. We believe that it is a naked attempt to tilt the balance massively in favour of landlords in a dispute, when the power balance is already heavily in their favour, and to deter tenants from complaining and taking action.

We do not agree with anything that undermines two of the core principles of the Bill. The first is to act as a deterrent to bad landlords. We on these Benches keep saying, as does the Minister, that good landlords have nothing to fear from the Bill, and certainly not from this aspect, but the fines have to be tough enough and the burden of proof appropriate to a civil offence. The second is to increase penalties to bring them in line with similar penalties that can be issued already by enforcement authorities against landlords who breach legislation.

I want to look specifically at the amendments. I think that the noble Earl, Lord Kinnoull, and the noble and learned Lord, Lord Keen, with their forensic legal eyes, are looking at them in a particular way. I look at the unintended consequences for tenants. Amendment 87, on raising the burden of proof, relates to families claiming benefits. Refusing to rent to someone due to their claiming benefits is unlawful. However, with high demand, this form of discrimination is really hard to prove. It is often based on verbal rather than written evidence. This amendment would therefore make it significantly more difficult for recipients of benefits to hold their landlord to account for this discriminatory practice.

Similarly, Amendment 88 relates to bidding wars. It is absolutely right that the Bill will ban bidding wars. Too often, renters are pitted against each other for a home, driving up the cost of renting in the process. It is already very hard to prove, without making it even harder by raising the burden of proof. Raising that standard of proof would make it significantly more difficult for a local authority to enforce the ban on bidding wars, especially due to the nature of the evidence in such cases.

Amendment 103 relates to the database that the Bill will set up. Noble Lords will know from Committee that I am a database believer. However, without the right data and information, such a database risks losing its utility for all tenants, prospective tenants and local authorities. This amendment would provide landlords with a lovely loophole that they could potentially exploit. It would be very difficult to prove that the landlord had knowledge of the breach they committed, and the amendment would therefore allow landlords to contravene the new regulations without fear of enforcement. I acknowledge the complexity of this amendment and look forward to the Minister’s response. To us, all these amendments seek to undermine the protections for tenants, thus we are very much against them.

Let us now be positive, by turning to Amendment 104, in the name of the noble Baroness, Lady Kennedy. She has explained the situation very clearly and we support her fully. This is a really positive move. Amendment 104 would reduce the burden of proof for a rent repayment order where an illegal eviction has taken place on the balance of probabilities—hence the connection to the amendment of the noble Lord, Lord Cromwell. This is important, as “beyond reasonable doubt” is the criminal standard. It is just too hard at the moment for tenants to successfully get justice. Cases involving illegal evictions and harassment are typically really hard to prove to this standard; in far too many cases, where evidence is based on the word of the applicant, it is practically impossible.

A rent repayment order is not a criminal prosecution. Cases are settled in the First-tier Tribunal; there is no jury and it does not follow criminal procedural rules. There is no criminal sentence or criminal record for the respondent. There is no legal aid available for rent repayment order claims and thus applicants are often self-represented, with little help and no legal expertise. This is again why the higher criminal burden of proof is so inappropriate for this kind of action. It is virtually a non-action, as evidenced by the low numbers of rent repayment orders that are brought.

We need to consider the very serious possibility that, with the abolition of Section 21, there will be more illegal evictions. It is therefore important that a bigger deterrent is in place. This needs to be changed to “on the balance of probabilities”. It is really important not to confuse criminal and civil offences and their parallel burdens of proof.

This takes us neatly to Amendment 110, in the names of the noble Lords, Lord Cromwell, Lord Hogan-Howe and Lord Best—a formidable trio. I can tell the Minister that it will take a lot of political will to withstand their arguments. Amendment 110 clearly gets our support, should the noble Lords wish to test the opinion of the House.

We know from all the arguments in Committee that less than 1% of illegal evictions are successfully prosecuted and that a major part of the problem is exactly as has been enunciated: the police view these things as a civil matter or, even worse, assist the landlord, even though it is a criminal matter under the Protection from Eviction Act, or they refuse to get involved at all. I cannot think of anything worse than being illegally evicted from what I believe to be my home, with my goods and my family. There has to be a greater awareness and more training, which is the aim of the amendment. As this view seems to be shared by many important bodies, it has real credibility.

My Lords, I thank the noble and learned Lord, Lord Keen of Elie, the noble Lord, Lord Cromwell, and my noble friend Lady Kennedy of Cradley for their amendments. I thank the noble Earl, Lord Kinnoull, for his comments. We all miss the late Lord Etherton very much and I am very grateful to him for all the work he did on this. I thank the noble Lord, Lord Hogan-Howe, and the noble Baroness, Lady Thornhill, and all the tenant groups that have taken time to speak to me about the amendments in this group.

Amendments 87 and 88 would require local authorities to meet the criminal rather than civil standard of proof when imposing civil penalties for rental discrimination and rental bidding breaches. The standard of proof we have chosen for these breaches is lower than that which applies to the imposition of financial penalties for breaches of other measures brought in by the Bill. This is because, unlike those other breaches, rental discrimination and rental bidding breaches cannot lead to a criminal offence if the conduct persists. Breaches of the rental bidding and rental discrimination requirements cannot result in the landlord being prosecuted or given a civil penalty of up to £40,000, and are subject only to the lower £7,000 maximum penalty. This means the jeopardy for landlords in relation to those breaches is significantly lower than for others in the Bill.

I point out—I hope the noble Lord finds this reassuring—that local authorities already impose civil penalties based on the civil standard of proof in other legislation; for example, in their enforcement of agent redress requirements. My view since Committee has therefore not changed. I consider it appropriate that local authorities need to prove these breaches to the civil standard, “on the balance of probabilities”, rather than the criminal standard, “beyond reasonable doubt”.

On Amendment 103, the PRS database depends on landlords providing accurate information to raise standards, protect tenants and support local authority enforcement. Retaining the reference to recklessness in the current wording of Clause 93 is essential to achieve this, by preventing dishonest landlords submitting false or misleading information. I reiterate the point made by the noble Baroness, Lady Thornhill, that good landlords have nothing to fear from this legislation.

Recklessness is not a simple mistake; it involves taking an unjustified risk, and this wording is consistent with other, similar offences, including offences under the Housing Act 2004, under which local authorities already make prosecutions.

If we required proof of knowledge in every case, it would have a number of repercussions. It would make enforcement far more difficult; it would allow unscrupulous landlords to evade accountability; it would compromise the integrity of the PRS database, thereby undermining our goal in the Bill of raising standards and ensuring tenant safety; and it would be a disproportionate response given the safeguards and resourcing I set out in Committee.

By way of reminder, the noble Lord, Lord Hunt, helpfully asked how a landlord who was alleged by a local authority to have committed an offence could appeal. I explained that there are safeguards. If a civil penalty is issued, the landlord has a right to make representations to the local authority, as well as a right of appeal to the First-tier Tribunal, which would then determine on the evidence whether the applicant had acted recklessly. In cases of prosecution, it will be for the magistrates’ court to decide whether the accused has been reckless.

The noble Lord also asked whether local authorities would have the resources required to enforce and administer this. I can again confirm that the Government have committed to funding new burdens arising from our assessment of the financial impact of the Bill, and that the income from civil penalties will also be available to local authorities to use for their enforcement activity.

It is appropriate for a serious offence to be committed through “recklessness” without requiring proof of knowledge, and we have accounted for this in our plans to resource local authority enforcement accordingly and allow a right of appeal for landlords.

Amendment 104 would reduce the standard of proof that needs to be met for rent repayment orders from criminal to civil when applied to the illegal eviction and harassment offences. The Government are quite clear that illegal eviction and harassment are unacceptable, and perpetrators need to be robustly punished. That is why we are giving local authorities the power to impose civil penalties of up to £40,000 for illegal eviction and harassment offences.

I thank my noble friend Lady Kennedy for her helpful engagement on this and the very useful discussion we had. As she knows, I am very sympathetic to the intentions of her amendment. Currently, illegal eviction and harassment too often go unpunished, as we have heard from my noble friend and other noble Lords, and there are too few rent repayment orders for these offences. However, I have several concerns. Rent repayment orders are effective because they provide a significant financial deterrent to landlords committing certain offences, and an incentive for tenants to take action when their landlord breaks the law. Lowering the standard of proof could distort the clear link between the severity of the offence and the scale of the penalty. This could lead to inconsistency and unpredictability in awards and decisions, undermining the regime’s credibility as a tool for both punishment and deterrence.

I recognise that illegal eviction and harassment offences are difficult for tenants to prove. The Government will be publishing new tenant-facing rent repayment order guidance, which will include information about how to gather the right type of evidence for these offences. The Government consider rent repayment orders to be a critical part of the private rented sector enforcement system and we are very keen that they work as well as possible for illegal eviction and harassment.

My noble friend Lady Kennedy raised important questions about the availability of data on illegal eviction and harassment, rent repayment orders and the availability of legal aid for these offences. We have introduced a new duty in Clause 1(10) of the Bill to require local authorities to provide the Government with information about the exercise of their functions under landlord legislation. This includes the Protection from Eviction Act 1977. This duty will be used to mandate the provision of data by local housing authorities from 2026-27.

We are currently undertaking voluntary data collection to help refine the data we will require. We expect data returns to include information on complaints received from tenants and enforcement action taken in relation to illegal eviction and harassment. We are also committed to working with Safer Renting and others to monitor the effectiveness of rent repayment orders in punishing and deterring illegal eviction and harassment in the new system, and we will consider whether further changes are needed. The details of all rent repayment order cases are already publicly available online. We will work with the Ministry of Justice and HM Courts & Tribunals Service to explore how we can make this data more accessible and useful.

Free, non-means-tested legal advice is available through the Housing Loss Prevention Advice Service for people at risk of repossession proceedings, loss of their home or illegal eviction. I will of course be very happy to pass on to the Ministry of Justice my noble friend Lady Kennedy’s request for a meeting. We will continue to work with my noble friend and relevant stakeholders to monitor rent repayment orders’ effectiveness in the new system and consider whether further changes are needed.

Finally, on Amendment 110 from the noble Lord, Lord Cromwell, I thank him for his continued engagement throughout the course of the Bill on this issue and others, both in the Chamber and beyond. I am sympathetic to the intention of Amendment 110, but I believe its aims can be achieved without further legislative Intervention and in a more timely and efficient way which will better suit the needs of tenants.

The Government agree that those responsible for illegally evicting tenants from their homes should be met with robust enforcement action. That is why we have given local authorities the power to issue financial penalties for the first time for this offence of up to £40,000 as an alternative to prosecution.

The Government are already actively working with colleagues in the Home Office and the police to explore how we might increase awareness and enforcement of illegal eviction offences. We hope that this collaboration will improve awareness of police powers relating to the small minority of landlords who would seek to illegally evict a tenant. We are also working with local authority stakeholders to understand how they can work with the police to enforce against illegal eviction. This will be used to identify examples of best practice for joint working in order to help inform the Government’s approach.

The noble Lord, Lord Hogan-Howe, made a very good point about His Majesty’s Inspectorate of Constabulary. Back in a distant life, I was chief of staff to a chief constable, and I remember the inspection process very well. I will pass his suggestion on to Home Office colleagues.

Beyond this, the Government are updating the illegal eviction and harassment guidance, as noble Lords have referred to. We want to make it clear that illegal eviction is a criminal, not a civil, offence, and tenants who have been illegally evicted may call the police, who have the powers to prevent illegal eviction. This guidance is being developed in collaboration with a wide range of stakeholders from across the sector. The examples given by the noble Lord, Lord Cromwell, and by other stakeholders when I met with the renters’ bodies, clearly illustrate how important ongoing work on this will be.

I hope that the commitments I have made today will provide some reassurance, and with this in mind I respectfully ask the noble and learned Lord to withdraw his amendment.

I am obliged to noble Lords for their contributions to this debate. I make a number of observations. First, I sympathise with the observations made by the noble Baroness, Lady Kennedy, about the conduct of those she identifies as criminal landlords. But before someone should be stigmatised and identified as a criminal, they should be guilty of an offence that leads to them being stigmatised as a criminal. That should not be done on a balance of probabilities.

The relevant standard of proof in regard to criminality is “beyond reasonable doubt”. Indeed, where there is uncertainty about whether conduct is civil or criminal—a point brought up by the noble Lord, Lord Cromwell—it is important to ensure either that you can make that clear distinction, or that you understand that the relevant standard of proof must be that which is fair to both parties.

I have to disagree with the noble Baroness, Lady Thornhill, when she suggests that, where it is difficult to prove a case, you should reduce the burden of proof. The consequences of that, if developed, are very wide-ranging indeed. We know that there are many areas of criminal prosecution where it is extremely difficult to secure a conviction, but no one would suggest that it is appropriate in these circumstances simply to reduce the burden of proof.

Given that we are not talking about criminal offences—we are talking about civil offences—and given the power imbalance between a landlord and a tenant, will the noble and learned Lord at least accept that by lowering the burden of proof we would allow the tenant to feel that they might have a voice and could possibly bring something? Otherwise, his Amendment is, in effect, saying, “Well, just don’t bother. The burden of proof is too high, so please carry on with your poor behaviour”. This is civil conduct and behaviour.

I do not accept the proposition advanced by the noble Baroness at all. In circumstances where you are going to stigmatise somebody’s conduct as criminal, as the noble Baroness, Lady Kennedy, pointed out, it is appropriate that there should be a relevant standard of proof. You are not taking away anyone’s voice in that context.

I come on briefly to deal with the helpful contributions from the Minister and in particular welcome her observation that inconsistency in legislation undermines a regime’s credibility. That is very much in point here, because I cannot accept as accurate her suggestion that you can distinguish the provisions in Clauses 41 and 58 from later provisions of the Bill on the basis that the latter lead to greater jeopardy and, as she put it, could result in a criminal offence. I merely remind noble Lords of what Clauses 67 and 92 actually say. Clause 67 says:

“A local housing authority may impose a financial penalty on a person if satisfied beyond reasonable doubt that the person has … breached regulations under section 65(1)”— that is not a criminal offence; it is a breach of civil regulations. Clause 92 says:

“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 is not a criminal offence. Again, what is being underlined here is the very point that the Minister wanted to avoid: the inconsistency in the legislation which is liable to undermine the regime’s credibility. It appears to me that there is a need, if nothing else, for consistency with regard to the obligations imposed by this series of provisions and regulations. I would therefore move to test the opinion of the House on Amendment 87.

Ayes 237, Noes 223.

Amendment 87 agreed.

Clause 58: Financial penalties