Tenant Fees Bill
48.This Bill, which had its Second Reading on 10 October, makes provision for restricting the fees which may be imposed on tenants by landlords and letting agents. Provision is made for local weights and measures authorities and district councils to enforce the provisions of the Bill.
49.The Department for Housing, Communities and Local Government has provided a Delegated Powers Memorandum.37 There is one matter we would draw to the attention of the House.
Clause 23—Guidance to enforcement authorities
50.Clause 23(2) imposes a duty on the lead enforcement authority (which may be the Secretary of State or a local weights and measures authority) to issue guidance to enforcement authorities about the exercise of their functions under the Bill. By virtue of clauses 6(4) and 7(2), an enforcement authority is under a statutory duty to have regard to the guidance in exercising its functions. The functions of enforcement authorities include imposing financial penalties and enforcing breaches of the Bill by prosecution for an offence under clause 12.
51.Guidance issued under clause 23(2) is not subject to parliamentary scrutiny. The duty on the lead authority is limited to issuing the guidance to enforcement authorities; there is no wider duty under the Bill to publish the guidance issued to enforcement authorities.
52.We considered the issue of guidance under the Bill in our submission to the House of Commons’ Housing, Communities and Local Government Committee which reported on a draft of the Bill in March 2018. In that submission we concluded as follows:
“In the 2015–16 Session, we reported on a provision in the Housing and Planning Bill which also concerned guidance covering the imposition of financial penalties and the circumstances in which it would be more appropriate to issue a financial penalty rather than to prosecute. In that case, we concluded that the guidance should be subject to parliamentary scrutiny because it was likely to be highly influential when an authority determines whether to impose a financial penalty instead of bringing a prosecution, and when it decides the level of that penalty.
We take the view that similar considerations apply here. The Department acknowledges in its memorandum that the guidance will play an important role in ensuring consistency in the way in which different local weights and measures authorities exercise their enforcement functions, including deciding whether to impose a financial penalty or to prosecute. Since the guidance is likely to be highly influential as to how enforcement functions are exercised, we consider it should be made subject to parliamentary scrutiny, with the draft negative procedure offering an appropriate level of scrutiny.”
53.There have been a number of occasions in the recent past (of which our report on the Housing and Planning Bill38 is one example) where we have found ourselves drawing the House’s attention to a Bill because it failed to make provision for guidance to be subject to parliamentary scrutiny. In each case the body or bodies to whom the guidance is addressed are under a duty to have regard to the guidance in exercising statutory functions, with the result that the guidance is liable to have a significant impact on the way in which those functions are exercised.
54.There has been no change in the Department’s explanation of the role of guidance in this case. The Department still acknowledges that it will help to ensure that the approach of enforcement authorities is consistent, including in relation to decisions on whether it is more appropriate to issue a financial penalty or to prosecute.39 Also, there has been no change in the Department’s reasons for not making the guidance subject to parliamentary scrutiny.40 The only change of substance is the commitment referred to in the delegated powers memorandum that the Government will share draft guidance with Parliament in due course to provide greater clarity on the proposed contents.
55.While we welcome the Government’s offer to make draft guidance available, we take the view this is not sufficient to remove the need for the guidance to be made subject to parliamentary scrutiny. In our view, it is important that both Houses have the opportunity to scrutinise the actual guidance which is issued. It is also important that both Houses have the opportunity to scrutinise any revisions which may be made to that guidance in the future. Accordingly, we still consider that the guidance should be subject to parliamentary scrutiny, with the draft negative procedure offering an appropriate level of scrutiny.
37 Department for Housing, Communities and Local Government, Tenant Fees Bill Delegated Powers Memorandum
38 Delegated Powers and Regulatory Reform Committee (20th and 21st Reports, Session 2015–16, HL Paper 90 and HL Paper 98).
39 See in particular para 53 of the Delegated Powers Memorandum.
40 See para 60 of the Delegated Powers Memorandum.