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Lord Mackay of Ardbrecknish moved Amendment No. 255CE:

Page 163, line 28, at end insert--
("Financing of joint arrangements.
140DA.--(1) Where two or more authorities make arrangements for the discharge of any of their functions relating to housing benefit or council tax benefit--
(a) by one authority on behalf of itself and one or more other authorities, or
(b) by a joint committee,
the Secretary of State may make such payments as he thinks fit to the authority or committee in respect of their expenses in carrying out those functions.
(2) The provisions of sections 140B and 140C (subsidy: calculation and supplementary provisions) apply in relation to a payment under this section as in relation to a payment of subsidy.
(3) The Secretary of State may (without prejudice to the generality of his powers in relation to the amount of subsidy) take into account the fact that an amount has been paid under this section in respect of expenses which would otherwise have been met in whole or in part by the participating authorities.").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Schedule 10, as amended, agreed to.

Clause 108 [Functions of rent officers in connection with housing benefit and rent allowance subsidy]:

Earl Russell moved Amendment No. 255CF:

Page 71, line 2, leave out ("specified in the order in connection with") and insert ("required for the purpose of determining").

18 Jun 1996 : Column 233

The noble Earl said: This is another drafting point. This is another case where the Secretary of State seems to me to have been given extremely wide powers which cannot really be judicially controlled. Clause 108(1) states:

    "The Secretary of State may by order require rent officers to carry out such functions as may be specified in the order".
I wonder whether one could tighten that by including a purpose requirement, and state instead,

    "required for the purpose of determining housing benefit and rent allowance subsidy".
That, again, would fit the principles of drafting which would allow a statement of general principle which could be made the subject of some judicial control.

Similar points apply to the second amendment in this group which concerns our old friend, transitional provision. The noble and learned Lord, Lord Simon of Glaisdale, will doubtless remember the first regulations under the Child Support Act where major provisions were changed under the transitional provision and held to be transitional simply because the Minister had changed his mind. For some time afterwards the noble and learned Lord queried the word "transitional" every time it appeared in a Bill.

All I really want to know here is exactly what the Secretary of State can do under these transitional powers, and why he needs to have such transitional powers as appear to him "to be desirable" rather than such transitional powers as are necessary for a particular purpose. Because, after all, as Dr Faustus knew, we can all desire powers for all sorts of purposes, but it is not always good for us to have them. I beg to move.

Baroness Hamwee: I support my noble friend on this amendment having teased him on a previous amendment when I said that it could have been even worse and could have referred to matters "otherwise howsoever". At least the draftsmen did not go quite that far. I hope the Minister will explain the relationship between subsections (1) and (2) of this clause. Subsection (1) gives powers which appear to be a matter of discretion. Without prejudice to those, subsection (2) suggests some of the provisions that may be contained in the order. Will the Minister also explain--and I hope confirm to the Committee--that the Secretary of State must act reasonably in specifying matters in an order under this clause?

Lord Mackay of Ardbrecknish: The final question of the noble Baroness is easy to answer in that my right honourable friend always acts reasonably. In the case of the provisions we are discussing he has to act in regard to housing benefit and rent allowance subsidy. Clause 108 replaces Section 121 of the Housing Act 1988 which enables the Secretary of State to make an order requiring rent officers to carry out certain functions in connection with housing benefit and rent allowance subsidy. Since 1989 rent officers have reviewed all deregulated private sector rent allowance cases to check that the amount of rent being covered by housing benefit is reasonable. Clause 108 would provide a new statutory basis for this work.

18 Jun 1996 : Column 234

From 2nd January 1996 a prospective tenant has been able to apply, with the landlord's consent, through the local authority, for a pre-tenancy determination. This enables the prospective tenant and the landlord to find out the likely level of rent which will be eligible for housing benefit purposes before the tenancy is agreed.

Clause 108 extends this existing power to allow the Secretary of State to make an order to allow a prospective landlord to establish, in advance of offering the tenancy, the level of rent which housing benefit is likely to meet if a housing benefit claim is made in respect of that tenancy. It will make it possible for landlords to obtain a pre-tenancy determination for housing benefit purposes without involving a prospective tenant.

The effect of the noble Earl's amendment on the face of it would be to limit the functions that a rent officer could undertake under Clause 108 to those which were required only for the purposes of determining housing benefit. This seems directly to contradict subsection (2) of the clause which allows a prospective landlord to apply for a pre-tenancy determination. The result would appear to be that rent officers would be prevented from carrying out pre-tenancy determinations for landlords and probably also for tenants since these would relate to prospective tenancies which, although likely to result in benefit claims, may not always do so.

The fact that tenants have been able to apply for pre-tenancy determinations has been widely welcomed. It enables the tenant and his landlord to know how much of the proposed rent is likely to be met by housing benefit before the tenant commits himself to the tenancy. Clause 108 seeks to allow landlords to discover this information without having to have a prospective tenant lined up. I believe that these provisions are a positive step forward. From the noble Earl's remarks, I did not detect objections to the policy in principle. I detected a feeling, as usual, that he was unwilling to see the Secretary of State granted the powers via secondary legislation.

Amendment No. 255CG would prevent the Secretary of State from making any transitional, incidental or supplementary provisions to an order made under the powers conferred by Clause 108. The transitional provisions in any benefit change are sometimes the most difficult and can cause the greatest problems for the administration. By and large, we are all agreed that as regards making benefit changes it is important to have some transitional protection for those people whose benefit may be changed, sometimes adversely. We believe that in general it is fair to make transitional protection. Therefore provisions such as those in this clause are not unusual in social security legislation.

I realise immediately that that will not be considered a defence by the noble Earl, but I thought that I would slip it in as quickly as I possibly could, while accepting that it may not allay his suspicions. However, there may be cases where the rules are changing and there is need to make special provisions which arise at the point of change when such change has to be made. If we do not have these provisions, unforeseen hardship or inequity could result. The fact that the hardship or inequity is

18 Jun 1996 : Column 235

unforeseen makes it important that transitional provisions should be given to my right honourable friend the Secretary of State--indeed, to any Secretary of State. I do not believe that it would be right to prevent such flexibility. It is a common enough feature of such order-making powers. I hope that the noble Earl is not about to tell me of recent instances when the power has been abused. Therefore, I hope that I am on fairly firm ground in saying that there is nothing unusual and nothing underhand about this subsection. It seeks to ensure that such changes are made in as fair a way as possible.

While I realise that the noble Earl may be reluctant to accept my assurances on these matters--his suspicion of this kind of legislation is well known--I hope that he will feel able to withdraw the amendment.

7.15 p.m.

Earl Russell: I thank the Minister for that reply and my noble friend Lady Hamwee for a crucial contribution.

I am glad that the noble Lord, Lord Irvine of Lairg, is now in the Chamber. The amendment arose from thoughts following a debate which he initiated in this House on 5th June. The noble Lord will remember that we discussed the growth of judicial review. Since he was not present at the beginning of these exchanges, perhaps I may explain that I was concerned with the reasons that judicial review has increased. I suggest that one reason is the style in which legislation is drafted. Where one has a power which says that the Secretary of State may carry out such functions as may be specified, or that he may have such transitional powers as may appear to him to be desirable, it is difficult to control his powers by the use of statute. As my noble friend Lady Hamwee crucially pointed out, the only way that one can control him is to require him to be reasonable. Instead of sending him to Coventry, one sends him to Wednesbury. It is the only penalty we have available. I seek to suggest that this style of drafting is a substantial reason for the growth of judicial review.

The Minister was quite right. I have no objection to the policy intention. In fact, I believe that I was the first person to ask in this House for pre-tenancy determinations. I am grateful to have achieved them. However, I wonder whether yet again I can ask the Minister to consider the principles of drafting set out in the Renton Report: the statement of the general principle whose interpretation may then be tested by the court. We might then return to having our cases on statutes instead of searching for the town of Wednesbury. However, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 255CG not moved.]

Clause 108 agreed to.

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