APPENDIX 3: HOUSING AND REGENERATION BILL
— GOVERNMENT RESPONSE
Letter to the Chairman from the Baroness Andrews
OBE, Parliamentary Under-Secretary of State, Department for Communities
and Local Government
1. Thank you for your very helpful comments and
recommendations on the delegated powers contained within the Housing
and Regeneration Bill.
2. I am pleased to confirm that we are happy
to accept your recommendations in relation to regulation of social
housing - enforcement - penalties (clause 228); Family Intervention
Tenancies (clause 296); consequential amendments (clause 319);
and service charge information (schedule 11). I am planning to
table amendments to implement these changes at the forthcoming
the Bill Committee stages.
3. You also requested a number of points of clarification
or more detailed explanation of policy. On clause 127 (regulation
of social housing - directions as to accounts) the existing power
in paragraph 16 of Schedule 1 to the Housing Act 1996 does not
provide for consultation with registered social landlords, for
Secretary of State to consent or any parliamentary procedure before
the Housing Corporation issues an accounts direction. The Bill
has updated this provision by requiring that the regulator consult
with registered providers before issuing a general accounts directions.
The Bill on Introduction in the Commons erroneously included a
Secretary of State consent for these directions. We apologise
for this error. We do not consider that these directions require
parliamentary control or Secretary of State consent as they are
an administrative function of the regulator. We consider that
the rules as to preparation, content and form of these regulatory
accounts are a clearly a matter for the regulator as it knows
the type of accounting information it needs to meet its fundamental
objectives (clause 88). However if there are specific reasons
why Secretary of State consent or parliamentary control is thought
to be needed then we would be happy to consider these.
4. On clause 195 (regulation of social housing
- standards) you have proposed that the exercise of the Secretary
of State's direction to the regulator about the content of standards
in clause 195 be subject to a negative resolution procedure in
parliament. Currently the Secretary of State has the power to
direct the Housing Corporation in relation to any of its functions
(see section 76 of the Housing Associations Act 1985). We do consider
this to be a relevant precedent. It is the power the Secretary
of State currently uses to ensure the Housing Corporation exercises
its functions in a way which aligns with general Government housing
policy. However, one of the aims of the Bill is to establish a
regulator which is more independent of the Secretary of State
and consequently we have strictly limited central Government's
current direction-making power to those areas where Government
has a legitimate public interest in the regulator's functions.
We consider that in relation to the issues referred to in clause
195(2) the Secretary of State has such an interest and hence we
have maintained the Secretary of State's direction-making power.
5. Moreover, it is vital that directions can
be made urgently to respond where necessary to housing market
conditions. We are concerned that making the setting of directions
subject to parliamentary control will considerably delay the making
of such directions and this will affect the ability of the Secretary
of State to respond urgently where necessary. It is also important
that directions can be include reference to documents prepared
by others, such as RICS, something which might not be easy to
achieve in a statutory instrument. You should note that we have
further reinforced the transparency of the direction process by
requiring the Secretary of State to publish not only the directions
made, but also each proposed direction that is the subject of
the consultation, and each response to the consultation.
6. On Part 3, Chapter 1 (sustainability certificates)
you invited the House to consider whether the first exercise of
the powers in clauses 278, 279(2), 280 and 289 should attract
affirmative procedures in light of the public policy interest
in the relationship with Part 5 of the Housing Act 2004 and subsequent
regulations.
7. We considered carefully in each case whether
the topic should be subject to affirmative or negative procedure.
As you have noted there are already topics subject to the affirmative
procedure, such as changing the list of sustainability purposes,
because they amend primary provision in the Clauses. In respect
of extending the provisions to other building categories we recognised
that this should be subject to affirmative procedure. We would
however prefer to resist the suggestion that the first exercise
of powers in the clauses listed should attract the affirmative
procedure for two reasons.
8. Firstly the principle of sustainability
ratings along with much practical provision has already been established
by amendment to the HIP regulations (S.I. 2008/572), which
came into effect on 1 May. Parliament will have the opportunity
to debate the principles at earlier stages of this Bill and in
relation to the HIPs regulations on 8 May (in the Lords) and 14
May (in the Commons). Much of the ground covered in regulations
to be made under the Bill powers will thus have been subject to
debate already, albeit in regulations made using different powers.
We wonder if there is merit in doing so again when regulations
in these areas using Bill powers are first made.
9. Secondly, much of the remainder of the regulations
to be made will deal with matters of detail, often administrative.
Certain matters not yet dealt with do have potential to raise
matters of principle. In particular there are exceptions and consequent
alternative duties, though these might be seen as fundamentally
deregulatory in character. There is also the establishment of
accreditation schemes, though the basic requirements for these
are already set out in much detail in the clauses. Again we question
whether debate on all these would be a constructive use of Parliament's
time.
May 2008
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