Housing and Regeneration Bill
1. This bill is in three significant parts: Part
1 is concerned with the establishment and functions of a Housing
and Communities Agency which is (among other things) to improve
the supply and quality of housing in England; Part 2 makes new
provision for the regulation of social housing; and Part 3 contains
a number of miscellaneous provisions about residential property
and housing finance, and changes to the law of landlord and tenant.
The Department for Communities and Local Government has prepared
a memorandum for the Committee explaining the delegations of legislative
power in the bill, printed at Appendix 1.
HENRY
VIII POWERS
2. The bill contains affirmative Henry VIII powers
in clauses 14(8), 71(7), 73(3), 279(3) and 290(6) and in paragraphs
19(4) and 21(2) of Schedule 10, none of which is inappropriate.
The power conferred by clause 26(2), to increase by order the
borrowing limit specified for the new Homes and Communities Agency
(subject to an overall maximum specified in the bill), is appropriately
subject to the affirmative procedure in the Commons only. There
are five Henry VIII powers (in clauses 66(2), 131(5), 209(8) and
211(8), and in paragraph 1(2) of Schedule 13) which are subject
to negative procedure only, but these are either narrow in scope
or follow existing precedents and so are not inappropriate.
REGULATION
OF SOCIAL
HOUSING: DIRECTIONS
AS TO
ACCOUNTS —
CLAUSE 127
3. Clause 127 enables the regulator to give directions
to registered providers of social housing about the preparation
of their accounts. The power may be exercised generally or in
specific cases. If the former, then clause 127(6) requires the
regulator first to consult representatives of registered providers.
The memorandum (paragraph 90) justifies the absence of parliamentary
control over this delegation on the ground that such general directions
will require the consent of the Secretary of State but we cannot
find this requirement in the bill sent to this House by the Commons.
We invite the Minister to clarify to the House her intention for
the role of the Secretary of State and suggest that it would be
appropriate for general directions under clause 127 to require
the consent of the Secretary of State.
REGULATION
OF SOCIAL
HOUSING: STANDARDS
— CLAUSE 195
4. Clause 191 allows the regulator to set standards
for registered providers of social housing as to the nature, extent
and quality of accommodation, facilities or services. Clause 195
allows the Secretary of State to give directions to the regulator
about the content of particular standards. These delegations have
a legislative character but are not subject to a parliamentary
procedure. They resemble powers conferred by sections 34 and 36
of the Housing Act 1996 but there are significant differences;
and it is not clear that section 76 of the Housing Associations
Act 1985 is a relevant precedent, as suggested by the memorandum
(paragraph 107). In the absence of precedents, we would consider
that the exercise of a general power of this kind should be exercised
by statutory instrument subject to the negative resolution procedure.
We invite the Minister to explain more fully to the House why
the arrangements in the bill for the setting of standards is appropriate.
REGULATION
OF SOCIAL
HOUSING: ENFORCEMENT:
PENALTIES —
CLAUSE 228
5. Clause 228(2) provides that the maximum penalty
which may be imposed by the regulator for a contravention described
in any of subsections (2) to (6) of clause 226 (regarding the
management of social housing) is to be £5,000, and subsection
(3) confers power to amend that amount by negative order. The
department seek to explain their choice of the negative procedure
on the basis that the power relates to "essentially an administrative
procedure" (paragraph 121 of the memorandum). Unlimited delegations
of this kind are not unusual in recent bills: for example, the
Communications Bill 2002-03 contained a number of similar powers,
though that bill was amended to adopt this Committee's recommendation
that the powers should all be affirmative, rather than negative
as originally proposed. WE RECOMMEND
THAT EXERCISES
OF THE
POWER CONFERRED
BY CLAUSE
228(3), OTHER THAN
TO REFLECT
CHANGES IN
THE VALUE
OF MONEY,
SHOULD BE
SUBJECT TO
THE AFFIRMATIVE
PROCEDURE.
SUSTAINABILITY
CERTIFICATES —
PART 3, CHAPTER
1
6. Chapter 1 of Part 3 of the bill introduces new
provision requiring the seller of a new residential property to
supply the purchaser with a certificate containing an assessment
of the property's sustainability, or a written statement to the
effect that there is no such certificate for the property. "Sustainability"
is defined in clause 279(1) by reference to "sustainability
standards" (to be contained in negative regulations) for
seven purposes listed in subsection (2) which may be altered by
affirmative regulations under subsection (3). The assessment must
be conducted by an "authorised assessor", and clause
280(2) and (5) enable provision to be made by negative regulations
about who may be authorised for the purpose and about the arrangements
for their accreditation. Provision about a register of certificates,
their disclosure and generally as to their form and content may
also be made in negative regulations under, respectively, clauses
281, 288 and 289. There is also a power to extend Chapter 1, with
or without modification, to non-residential properties, by way
of affirmative regulations.
7. A number of the clauses in this chapter appear
to be modelled on sections in Part 5 of the Housing Act 2004,
which provides for home information packs. Moreover, some of the
provision in clause 279 closely reflects the contents of recent
regulations (S.I. 2008/572) which are made under the general
power conferred by section 163 of the 2004 Act and which require
a home information pack for a new home to include information
about its sustainability. The intention seems to be that, once
the bill is enacted, new regulations will be made under the rather
more detailed powers conferred in Chapter 1, to replace those
made under the general power in the 2004 Act.
8. The House paid significant attention to the introduction
of the provision about home information packs and the associated
regulations. In the light of the public policy interest of those
regulations, THE HOUSE
MAY WISH
TO CONSIDER
WHETHER THE
FIRST EXERCISE
OF THE
POWERS IN
CLAUSES 278, 279(2), 280 AND
289 SHOULD ATTRACT
THE AFFIRMATIVE
PROCEDURE.
FAMILY
INTERVENTION TENANCIES
— CLAUSE 296
9. This clause inserts a new paragraph into Schedule
1 to each of the Housing Act 1985 and the Housing Act 1988, introducing
'family intervention tenancies' (for households being afforded
support in avoiding behaviour which might place them at risk of
eviction). Such a tenancy may only arise where the local housing
authority has served a notice on the tenant containing the information
set out in sub-paragraph (5)(a)-(f) of each new paragraph. Sub-paragraph
(6) in each case enables the items of information which a notice
must contain to be amended by regulations. These new arrangements
have important implications for a tenant's security of tenure,
as a family intervention tenancy is not initially a secure tenancy.
10. The notice under sub-paragraph (5) is critical
to the new tenancy's very existence: the information to be contained
in that notice, to alert the tenant to the nature of the arrangement
and the consequences of accepting of accepting or refusing it,
must thus be regarded as of considerable importance. While it
may (as the department suggest at paragraph 181 of their memorandum),
over time be found that additional categories of information ought
to be included in the notice, it is not clear why it would ever
be thought appropriate not to include information of the kinds
specified in sub-paragraph (5) (a) to (f). Yet the power conferred
by sub-paragraph (6) would enable items to be subtracted from,
as well as added to, the list in that sub-paragraph. WE
CONSIDER THAT,
WHILE THE
NEGATIVE PROCEDURE
IS ACCEPTABLE
FOR REGULATIONS
WHICH ADD
FURTHER CATEGORIES
TO (OR
SUBSEQUENTLY REMOVE
THEM FROM)
SUB-PARAGRAPH
(5), THE REMOVAL
OF ANY
OF PARAGRAPHS
(A) TO
(F) SHOULD
ATTRACT THE
AFFIRMATIVE PROCEDURE.
CONSEQUENTIAL
AMENDMENT AND
REPEALS —
CLAUSE 319
11. Clause 319(2) enables supplementary, incidental
or consequential provision to be made by order, and subsection
(3) permits such provision to be made by amending, repealing or
revoking provision made by or under an Act (but not future Acts).
Clause 318(3)(b) requires the affirmative procedure for any exercise
of a power under clause 319. In our opinion, this level of scrutiny
is only appropriate for a power of this kind where an Act is being
amended. Given the detailed nature of much of the consequential
amendment which may be required in subordinate legislation on
the enactment of a bill of this kind, WE
CONSIDER THAT
THAT THE
NEGATIVE PROCEDURE
SHOULD APPLY
TO ORDERS
UNDER THIS
CLAUSE, EXCEPT
WHERE AN
ACT IS
BEING AMENDED
IN WHICH
CASE THE
PROCEDURE SHOULD
BE AFFIRMATIVE.
SERVICE
CHARGE INFORMATION
— SCHEDULE
11, PARAGRAPH 2
12. Paragraph 2 of Schedule 11 substitutes a new
section 21 in the Landlord and Tenant Act 1985 to enable provision
to be made by regulations about the information which a landlord
must provide to a tenant about any service charges which the latter
is required to pay. As originally enacted, section 21 itself contained
the entirety of the provision about information which must be
given about service charges. A new section 21 was to have been
substituted by the Commonhold and Leasehold Reform Act 2002, enabling
specific aspects of the provision to be prescribed in regulations;
but that substitution has not been brought into force. The new
section 21 now proposed by this bill will leave the provision
wholly to negative regulations. AS
THIS WILL
REPLACE A
REGIME WHICH
IS AT
PRESENT SET
OUT ENTIRELY
IN THE
ACT ITSELF,
WE RECOMMEND
THAT THE
FIRST EXERCISE
OF THESE
NEW POWERS
SHOULD BE
SUBJECT TO
THE AFFIRMATIVE
PROCEDURE.
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