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'(c) shall be made by statutory instrument; and
(d) shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament.".'.
'(3) But a registration scheme must apply to every house in multiple occupation in the authority's district, which
(a) consists of more than two storeys, for which purpose an attic or basement shall be considered a storey unless used solely for purposes other than accommodation, or
(b) is occupied by more than four adults.'. In addition, I must advise the House that, following representations by the Member in charge of the Bill and the Members who have tabled the amendments, Mr. Speaker has agreed that the following starred amendments should also be taken with this group: No. 17, in clause 4, page 4, leave out lines 21 to 23 and insert
'(6) Regulations under this section shall be made by statutory instrument and shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament'.
Given the weight of legislation that these regulations will cover, we felt that this proposal was fair to landlords, to tenants who live in houses in multiple occupation and to Parliament. I am happy to say that, when I asked in Committee whether the Government would consider implementing the regulations by positive resolution, the response was sympathetic. Indeed, amendment No. 9
I had anticipated that there would be similar amendments to go with clauses 4, 5 and 6. Clause 4, in particular, concerns the level at which mandatory registration starts to bite. Amendment No. 4 replicates the words in our Second Reading draft defining the level at which, and above which, registration is mandatorythree or four more floors in occupation, and five or more tenants. That will now be subject to regulation rather than being dealt with in the Bill, but, along with many of my colleagues, I think that it should be subject to affirmative resolution, and open to scrutiny by the whole House.
The hon. Member for Bexhill and Battle (Mr. Barker) has tabled starred amendments to replace amendments to clauses 4, 5 and 6 that I had expected to be tabled but which unfortunately were not. I do not think it was a conspiracyI always prefer the cock-up to the conspiracy theory. It was just one of those things, probably due to a genuine error or misunderstanding. Mr. Speaker has graciously allowed the starred amendments to be discussed, and I am happy to support themas, I expect, will many other Members. I understand that the Department is content to follow the will of the House.
I urge the House to accept amendment No. 9, and amendments Nos. 17, 18 and 19. I ask the hon. Member for Guildford (Sue Doughty) not to press her amendments. I expect the issue to be taken up very firmly now that, hopefully, affirmative resolutions will apply to the regulationsand it is still my clear understanding that the level I have mentioned is the level at which mandatory registration starts to bite.
Sue Doughty: We pressed for the content of amendment No. 4 in Committee. We are very concerned about houses that are built vertically, and present a greater fire risk. However, we accept what we have been told about further consideration, and I intend to withdraw the amendment.
Sir Sydney Chapman: Amendments Nos. 17, 18 and 19 are intended to rectify an accidental omission. Their wording is identical to some of the wording of amendment No. 9, which refers to clause 3. My amendments refer to clauses 4, 5 and 6.
The regulations will affect the interests of thousands of landlords and tenants. We think they should be subject to affirmative resolution, so that the House will have a chance to debate key mattersas opposed to matters of detail, which should be subject to negative resolution.
On amendment No. 9, the Government propose that regulations under clause 3 should be made by affirmative rather than by negative resolution. I shall deal later in my speech with the point made by the hon. Member for Chipping Barnet (Sir Sydney Chapman) about regulations under clauses 4 to 6.
The effect of the change proposed in amendment No. 9 will be that both Houses would need to debate and vote on regulations prescribing the following definitions: what an HMO is in terms of the type of properties covered or excluded; what an HMO is in terms of those who occupy itthe number of households or family or other relationships involved; what is meant by "occupy" and such other matters as may need to be prescribed.
A power to make regulations is needed to define HMOs according to the types of properties to be included or excluded and the number of occupants and their relationships. We debated that extensively in Committee. The power in clause 3(3) is one of the means of ensuring consistency across registration schemes. At present there is not only uncertainty as to how the current definition based on households works, butand we intend to address thisthere is no flexibility in the law to ensure that adjustments can be made to achieve a legal definition that works. So in prescribing what an HMO is and what it is not, we need to define which types of property are judged to be HMOs and which are specifically excluded. The definition also has to have regard to those who occupy the properties. Definitions based on the concept of household and family relationships have been used in primary legislation, but they have not been without their critics. There is therefore a need for the flexibility in establishing definitions that secondary legislation provides.
A power such as that in clause 3 for the Secretary of State to say which HMOs must be included in any registration scheme is crucial to the operation of the registration scheme. It is not unreasonable that after public consultation on what is proposed by way of regulation Parliament should have its say.
Following representations in Committee, where there were extensive discussions, the Government decided to table an amendment that would make regulations under clause 3 subject to affirmative resolution. However it is not intended that regulations under clauses 4, 5 and 6 should be subject to affirmative resolution and, in answer to the hon. Member for Chipping Barnet, I shall make clear why.
Affirmative resolution procedure is rarely used. It is a special provision for a special case. The regulations to be made under section 345 of the Housing Act 1985 are of fundamental importance because they determine the scope of the legislation in order to avoid undue complexity. They allow a substantial amount of discretion to the Secretary of State in determining what an HMO is as well as in conferring exemptions. In our view, other regulation-making powers in part 3 of the Bill are not comparable as they relate to matters which are not subject to any such procedure in the current legislation. For instance, the drawing of the line between properties that can be made subject to registrationwith and without confirmation by the Secretary of Stateis not, under section 346B of the 1985 Act, currently a matter for parliamentary scrutiny in any form. In fact, the Bill extends the scope of parliamentary scrutiny by making the drawing of that line subject to the negative resolution procedure. Regulations will be put before both Houses, and if prayed against, a debate can take place.
I hope that the hon. Member for Chipping Barnet (Sir Sydney Chapman) is satisfied with that explanation. The Government have to strike a balance between the correct use of parliamentary time, and ensuring adequate
Following representations made in Committee, the Government have decided to propose in new clause 2, which we have already debated, that regulations under clause 3 be subject to affirmative resolution. We do not believe that a good case exists for regulations under clauses 4, 5 and 6 being so subject, but as was rightly pointed out, I am prepared to listen to the view of the House on this matter, and to other representations. It is a question not of defeating the Government, but of Parliament deciding in a mature and sensible way how much detail it wants to go into in insisting that a parliamentary debate take place.
On amendment No. 4, the Government are most concerned about HMOs that constitute a clear risk to the health and safety of their occupants. As I said in Committee, properties with three or more storeys, and which are occupied by more than four adults, present the greatest risks, particularly in terms of fire and overcrowding. Past Government-commissioned research found that multiple occupancy of two-storey properties involved no greater risk of fire than did occupancy by a single family. As I also said in Committee, the Government intend that local authorities will be responsible for ensuring that the most vulnerable HMOs in their district meet basic health, safety and management standards. We will prescribe those HMOs to which that duty will apply, but we also intend that local authorities will have discretionary powers to register HMOs in their district that do not fall within the scope of this mandatory scheme.
The matter was raised in Committee and debated thoroughly, and the hon. Member for Twickenham (Dr. Cable)he is not here todaywithdrew his amendment. If accepted, it would have had the same effect as Government amendment No. 9, which is why we are debating that amendment today. The English house condition survey and the Entec report, commissioned in 1998, clearly showed that houses occupied by more than four people, and which consist of three or more storeys, are at greatest risk from poor standards, overcrowding and fire. Smaller, two-storey houses in multiple occupation tend not to be in any worse a condition than those in single occupation. We intend to allow local authorities to extend registration to smaller HMOs if they see fit, but we do not believe that a pressing need exists for mandatory registration of such properties. For those reasons, I hope that the House will reject the relevant amendments.