Housing and Regeneration Bill


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Clause 94

Financial assistance
Mr. Wright: I beg to move amendment No. 178, in clause 94, page 40, line 13, at end insert ‘or giving a guarantee or indemnity.’.
This is a technical amendment that aims to draw a clear distinction between the two types of financial assistance that the regulator can give. Under subsection (1), the regulator can give financial assistance for research, guidance, best practice or for
“facilitating the management of social housing by tenants.”
In practice, that gives the regulator powers to run programmes similar to the innovation and good practice programme and the tenant empowerment programme, which are currently run by the Housing Corporation. Financial assistance under subsection (1) does not require the Secretary of State’s consent.
Under subsection (3), the regulator can give financial assistance to a registered provider by way of a loan, a guarantee or indemnity and only with the consent of the Secretary of State. That type of financial assistance is intended to support a provider in serious financial difficulties through short-term provisions, while longer-term plans are put in place. Given the large sums of money and the difficult circumstances that are likely to be involved, Secretary of State consent with Treasury approval is an essential safeguard.
At present, subsection (2) allows financial assistance to be given by grant, loan, defraying expenditure or
“in any other way except purchasing loan or share capital of a body corporate.”
The amendment will further limit how assistance can be given under subsection (2) to prevent the regulator
“giving a guarantee or indemnity.”
That is an additional protection to ensure that the powers of the clause cannot be used inappropriately. We cannot foresee a circumstance in which a guarantee or indemnity would be an appropriate way to fund research, guidance or best practice.
I hope the Committee will accept the amendment.
Amendment agreed to.
Clause 94, as amended, ordered to stand part of the Bill.
Clauses 95 to 102 ordered to stand part of the Bill.

Clause 103

Direction to the HCA
Mr. Wright: I beg to move amendment No. 179, in clause 103, page 42, line 21, at end insert—
‘( ) A direction may not prohibit grants to a registered provider in respect of discounts given by the provider on disposals of dwellings to tenants.’.
The clause enables the regulator to direct the Homes and Communities Agency not to give financial assistance under clause 22 to a registered provider. The amendment will qualify that for financial assistance in respect of a repayment to registered providers of the discount that they are obliged to provide when they sell a property to a tenant who is exercising the right to acquire, or which they choose to sell to a tenant who had the right to acquire in respect of a different property. The right to acquire applies to almost all social housing owned by registered providers for which grant has been paid after 1997.
Without the amendment, the registered provider would be obliged to sell at a discount without being reimbursed where one of the specified events in clause 22 has occurred. Reimbursement has been a principle of the right to acquire since it was introduced in the Housing Act 1996 and that has been the clear understanding of grant recipients when applying for and receiving social housing and other grants. At present clause 22 gives the agency simply the power to make such grants. We will be tabling an amendment to part 1 to impose a duty on the agency to repay the discounts on such disposals, just as there is a duty on the Housing Corporation to pay such grants under sections 20 and 21 of the 1996 Act. This is an important, yet technical, amendment, which clarifies matters regarding financial assistance and I hope that hon. Members will accept it.
Amendment agreed to.
Clause 103, as amended, ordered to stand part of the Bill.

Clause 104

Collection
4.45 pm
Mr. Wright: I beg to move amendment No. 180, in clause 104, page 42, line 26, leave out ‘relating’ and insert
‘which it has reason to believe is or may be in the person’s possession and which relates’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 181, in clause 104, page 42, line 29, at end insert—
‘(1A) A requirement may be imposed on a person other than the body to which the document or information relates only if—
(a) the body has been required to provide the document or information but has failed to do so, or
(b) the regulator thinks that the body is unable to provide it.’.
No. 182, in clause 104, page 42, line 30, leave out subsection (2).
No. 183, in clause 105, page 43, line 12, leave out ‘a’ and insert ‘the’.
No. 184, in clause 105, page 43, line 12, after ‘provider’ insert
‘to whose affairs or activities the documents or information relates’.
No. 185, in clause 105, page 43, line 13, leave out second ‘a’ and insert ‘the’.
No. 186, in clause 105, page 43, line 14, leave out ‘a’ and insert ‘the’.
No. 187, in clause 105, page 43, line 23, at end insert—
‘( ) Proceedings for an offence under section 104(5) or (6) may be brought only by or with the consent of—
(a) the regulator, or
(b) the Director of Public Prosecutions.’.
Mr. Wright: Amendments Nos. 180 and 181 limit the regulator’s data collection power. Clause 104 permits the regulator to collect information relating to registered providers or other persons. The hon. Member for North-East Bedfordshire will be pleased to hear that that power is modelled on an existing one that is available to the Housing Corporation under section 30 of the Housing Act 1996.
Amendment No. 180 limits the regulator’s ability to require a person to provide information or documents which it reasonably believes is in the person’s possession. Amendment No. 181 limits the regulator’s ability to require information or documents from persons other than the registered provider to which the information or documents relates. The regulator will only be able to ask for information from such other persons if the relevant registered provider has not provided the documents or information, or if the regulator believes that the document or information cannot be provided by the registered provider.
Amendment No. 182 will omit subsection (2), so that the regulator will be able to ask for the same type of information from profit-making registered providers as from non-profit providers. It will not be limited to information relating only to the social housing affairs or activities of a profit-making provider. That extension to the regulator’s powers is needed because we now propose that the regulator should be able to set standards for governance and financial viability for profit-making registered providers, and to exercise the moratorium powers in the case of insolvency. The regulator will, therefore, need the power to require the provision of a wider range of information from profit-making providers than was previously contemplated in order to exercise, and as a consequence of exercising, these powers.
Clause 105 is supplemental to clause 104. It has two main effects: to specify how clause 104 is limited in regard to legal professional privilege and bankers’ duty of confidentiality, and to specify penalties for those guilty of an offence under clause 104. As presently drafted, clause 105 could not require a banker to breach a duty of confidentiality owed to a person who is not a registered provider, or a subsidiary or associate of a registered provider. However, it could require the banker to breach its duty of confidentiality owed to registered provider A, for example, if the regulator were seeking information about registered provider B, even though registered provider A was not an associate or subsidiary of registered provider B. The Council of Mortgage Lenders expressed concerns about that possibility. Amendments Nos. 183 to 186 respond to their concerns.
The amendments qualify clause 105 and ensure that, if the regulator requires a banker to provide a document or information of a banker under clause 104, the banker can only be required to breach a duty of confidentiality owed to the registered provider to whom the requested document or information relates, or to a subsidiary or an associate of that provider, but to no other person. The effect of the amendments is to protect the confidentiality of other registered providers, their subsidiaries and associates—apart from the registered provider to which the requested document or information relates, and the provider’s subsidiaries and associates.
The amendments thus protect registered providers and other persons from unnecessary requests, and require the regulator to request documents and information from the relevant registered provider first—unless the regulator thinks that the provider does not have it—before asking anyone else. They also protect duties of confidentiality owed to people other than those to whom the request for information relates.
Amendment No. 187 relates to the offences that carry over from the Housing Act 1996 of failing to comply with the requirement for information or documents, under clause 104, or of altering, suppressing or destroying a document to which a requirement relates. The amendments will ensure that such proceedings may be brought only with the consent of the regulator or the Director of Public Prosecutions. Those provisions are necessary to prevent fraud or other misconduct from thwarting the regulator’s reasonable requirements for information.
The amendment ensures that, if an exceptional prosecution must be brought under clause 104, it is brought with the consent of those with an interest in the case and not anyone else with powers to prosecute. It will ensure proper consideration of the matter by someone with specific sector knowledge, such as the regulator, or with the authority and duty to consider the public interest, such as the DPP, before a prosecution can take place. It provides a further limitation on a power to prosecute, which it is hoped will not need to be used, but which is an important backstop to ensure that the regulator can obtain the information that it needs to do its job. I hope that hon. Members will except the amendments.
Amendment agreed to.
Amendment s made: No. 181, in clause 104, page 42, line 29, at end insert—
‘(1A) A requirement may be imposed on a person other than the body to which the document or information relates only if—
(a) the body has been required to provide the document or information but has failed to do so, or
(b) the regulator thinks that the body is unable to provide it.’.
No. 182, in clause 104, page 42, line 30, leave out subsection (2).—[Mr. Wright.]
Clause 104, as amended, order ed to stand part of the Bill.

Clause 105

Section 104: supplemental
Amendments made: No. 183, in clause 105, page 43, line 12, leave out ‘a’ and insert ‘the’.
No. 184, in clause 105, page 43, line 12, after ‘provider’ insert
‘to whose affairs or activities the documents or information relates’.
No. 185, in clause 105, page 43, line 13, leave out second ‘a’ and insert ‘the’.
No. 186, in clause 105, page 43, line 14, leave out ‘a’ and insert ‘the’.
No. 187, in clause 105, page 43, line 23, at end insert—
‘( ) Proceedings for an offence under section 104(5) or (6) may be brought only by or with the consent of—
(a) the regulator, or
(b) the Director of Public Prosecutions.’.—[Mr. Wright.]
Clause 105, as amended, ordered to stand part of the Bill.

Clause 106

Disclosure
Mr. Wright: I beg to move amendment No. 188, in clause 106, page 43, line 30, at end insert—
‘( ) The regulator may disclose information to a person acting on its behalf for a purpose connected with the regulator’s functions.’.
The Chairman: With this it will be convenient to discuss Government amendment No. 189.
Mr. Wright: Under clause 106(1),
“A public authority may disclose information to the regulator for a purpose connected with the regulator’s functions”.
A public authority is defined in subsection (6) as
“a person having functions of a public nature (whether or not in the United Kingdom).”
Subsection (2) allows the regulator to disclose information to a public authority for a purpose connected with its own functions or those of the public authority. That is not a new power. The Housing Corporation has the power to disclose information under section 33 of the 1996 Act. For example, the regulator might need to share information with the Homes and Communities Agency, if the regulator discovers that the provider has not been using the HCA grant in the way intended, or has concerns about its long-term financial viability such that HCA investment could be jeopardised.
The regulator might need to pass on information to the police, if it becomes aware of, for example, fraud committed against the provider by an employee. Furthermore, it might need to disclose information to other regulators, such as the Charity Commission, where the registered provider is also a registered charity. Sharing such information with other regulators might help to reduce the administrative burden imposed on providers that are regulated by more than one body, and to avoid the need for both regulators to ask the body for the same, or very similar information.
Although clause 106(2) gives the regulator the power to share information with other public bodies, it might also need to disclose information to people other than public bodies. The regulator might want to appoint consultants and other agents in connection with its functions, such as specialist accountants—I like the sound of that one—or auditors to carry out an extraordinary order under clause 186, or housing consultants to assist in an inspection under clause 181. Such persons acting on behalf of the regulator would need to be able to see information that the regulator has in order to carry out the tasks entrusted to them by the regulator. Amendment No. 188 will allow that to happen.
We recognise that information sharing by public bodies, such as the regulator, is a sensitive issue. Clause 106(3) allows either the regulator or another public authority when disclosing information to impose requirements preventing further disclosure. The subsequent disclosure of information in contravention of such a restriction is an offence. At present, clause 106(5) provides that the maximum penalty on conviction is a fine not exceeding level 3 on the standard scale, which is £1,000. That is the same as the penalty provided for in section 33(5) of the Housing Act 1996.
Amendment No. 189 means that the regulator will not be able to disclose information if doing so would breach a statutory prohibition on disclosure imposed in other legislation. Similarly, it would prevent other public authorities from disclosing information to the regulator if doing so would breach a statutory prohibition.
Other legislation may state that disclosure of such information is prohibited except where allowed by other enactments. The words in brackets in amendment No. 189 mean that the regulator or public authorities could disclose information under clause 106 if other legislation states that disclosure is possible if allowed or required by another enactment. Clause 106 would be such another enactment, permitting disclosure in such a case. The intention is to clarify the powers of the regulator and public authorities while maintaining appropriate limits.
The amendments will allow a sensible onward disclosure when it is necessary for the regulator to carry out his functions, but enable the regulator to put further restrictions on subsequent disclosure. They will enable flexibility of arrangements while preserving the confidentiality of information that has been provided. I hope that that clarifies the matter.
Amendment agreed to.
Amendment made: No. 189, in clause 106, page 43, line 31, at end insert—
‘( ) The power to disclose information under this section is subject to any express restriction on disclosure imposed by another enactment (ignoring any restriction which allows disclosure if authorised by an enactment).’.—[Mr. Wright.]
Clause 106, as amended, ordered to stand part of the Bill.
Clauses 107 and 108 ordered to stand part of the Bill.
The Chairman: Just before we adjourn, I shall mention that we have considered Tuesday. If we do sit on Tuesday evening, it will be from 8 o’clock until 10 o’clock. That is still a matter for the usual channels, but it is what I am banking on at the moment.
Further consideration adjourned.—[Liz Blackman.]
Adjourned accordingly at three minutes to Five o’clock till Tuesday 29 January at half-past Ten o’clock.
 
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Prepared 28 January 2008