PROPOSAL FOR THE DRAFT REGULATORY REFORM (SCHEMES UNDER
SECTION 129 OF THE HOUSING ACT 1988) (ENGLAND) ORDER 2003|
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
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).
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 http://www.cabinet-office.gov.uk/regulation/act/docs/housingreform_explanatorymemorandum.doc Back