Select Committee on Delegated Powers and Regulatory Reform Tenth Report



This is a "first stage" proposal, laid before Parliament on 10 December 2002, for an order amending section 129 of the Housing Act 1988 ("the 1988 Act"). Section 129 enables local housing authorities in England and Wales to make schemes providing for grants to assist the local authority's tenants to obtain other accommodation. This enables the local authority's accommodation then to be made available to those in greater need.

The background to the proposal is set out in paragraphs 2.1 to 2.6 of the Statement ("the Statement") submitted by the Office of the Deputy Prime Minister (ODPM).[2] The current position is that a local housing authority may make a scheme only with the approval of the Secretary of State (in England) or the National Assembly for Wales (in Wales).


The requirement for approval stems from a time when the grants were specifically part-funded by central Government. The Committee accepts that the need for an authority to seek approval is a burden on the authority and on the central Government department that processes the application for approval. The factual position in Wales is different from that in England (as explained in paragraphs 4.1 and 4.2 of the Statement) and the proposal is to remove the burden in England only.


The list of those consulted is at Annex A of Appendix B to the ODPM's Statement. A summary of responses is at Appendix D to the Statement. The majority of those responding were local authorities, all of whom were in favour of the proposal. Other organisations who responded were also nearly all in favour. The Committee is satisfied that the consultation was adequate and that the proposal has been generally welcomed.


The requirement for approval seems primarily to have been designed to protect the interests of central government. Since the 1988 Act was passed, there has been movement away from specific ring-fenced grants to local authorities and greater reliance on value for money, epitomised by the "best value" provisions of the Local Government Act 1999. So the protection is no longer considered necessary. The current guidance for local authorities on application for approval (Appendix C to the Statement) does not suggest that any necessary protection is afforded to those outside central government. The Committee is satisfied that the proposal does not remove any necessary protection.


The proposal does not affect schemes already made. The Committee is satisfied that nobody would be prevented by the order from continuing to exercise any right or freedom which he might reasonably be expected to exercise.


The order forming the proposal as laid before Parliament would extend to England and Wales, but the textual amendments made to section 129 of the 1988 Act would re-state the existing position for Wales, without any substantive change in the law. This is considered at paragraph 7.1 of the Statement, which discusses the extent to which section 1(1)(b) of the Regulatory Reform Act 2001 ("the 2001 Act") is engaged. In paragraph 7.1 it is suggested that section 1(1)(b) does not apply because the effect of the proposed order, taken in its entirety, is to remove the requirement of approval in England only and that it is not made with a view to re-enactment of the requirement in Wales.

We do not share this view. The Committee believes that the order, as drafted, has the effect of re-enacting the requirement in respect of Wales; that the order would be made with a view to the object of re-enactment; and that section 1(1)(b) of the 2001 Act, therefore, applies. We note that paragraph 7.1 of the Statement addresses this possibility and asserts that if section 1(1)(b) were to apply then "the slight burden is proportionate to the benefit of approval in the circumstances applicable in Wales". Details of the nature of this benefit are not set out in the Statement. We therefore invited the ODPM to provide them. In a reply from the ODPM, which is set out in Annex 1 to this Report, it is proposed that the order should be redrafted in a way which would have the same effect as the proposal before us but would avoid making a provision which could be construed as a re-enactment in respect of Wales. An extract of the proposed redrafted order is set out in Annex 2 to this Report. We agree that the problem identified with the current order is removed by the changes contained in the redrafted order and we recommend that these changes should be made.

We should add however that we noted with some interest the content of the ODPM's response to our request for further details. Having asserted in the Statement that the section 1(1)(b) test was satisfied, in their subsequent letter it is suggested that a decision on whether the section 1(1)(b) test was satisfied could not be made by the Secretary of State without requesting detailed evidence from the National Assembly for Wales. We find this discrepancy troubling although, on this occasion, we do not propose to take the matter further because it is not material to our conclusion in this Report.


Save for the recommendation in paragraph 8 above, the Committee concludes that the proposal is an appropriate use of the 2001 Act and meets its requirements.

2   The Statement is available from the Cabinet Office website at Back

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