Housing and Planning Bill

Lord Lisvane Excerpts

Wednesday 13th April 2016 Lords Chamber

Moved by

[Lord Lisvane]

53: Clause 67, page 30, line 5, after “may” insert “by regulations”

[Lord Lisvane (CB)]

My Lords, Clause 67(1) gives power to the Secretary of State to make a determination requiring a local housing authority to make a payment to him in respect of vacant high-value housing—or, if later government amendments are agreed to, higher-value housing. The vehicle of a determination has been well described by the distinguished legislative draftsman Daniel Greenberg, who is also the editor of Craies on Legislation, as “quasi-legislation”. It nevertheless has the force of law and as such it can, for example, modify, dilute or remove rights. Clauses 67 to 71 set out some undemanding parameters for the Secretary of State in making his determination, although the Government regard it as,

“setting out clearly the scope of the determination-making power”.

But in essence, in the Bill as reported, the Secretary of State would have extensive freedom of action in an area which may be the subject of considerable contention.

Amendment 53, in my name and those of my noble friend Lord Kerslake and the noble Lord, Lord Beecham, would require any determination made by the Secretary of State to be by regulations. Taken together with Amendment 132, any determination that affected more than one authority would be subject to the affirmative procedure. Amendment 132 would additionally apply the affirmative procedure to regulations that contained more than one determination. It would also make the definition of high-value—or higher-value—housing subject to parliamentary approval.

Parliamentary approval and authority is at the heart of this issue. This is not about the threshold between primary and secondary legislation—much in our minds in the Strathclyde context—although those issues will be very much to the fore in the very last group on the Marshalled List. Instead, this is about what Ministers may do without seeking the approval of Parliament. The Delegated Powers and Regulatory Reform Committee, of which I am a member, under the exemplary chairmanship of the noble Baroness, Lady Fookes, reported on this proposed delegation in its 20th Report of this Session. The committee concluded that it was,

“inappropriate to delegate to the Secretary of State a power to determine the amount of the payment to be made by local housing authorities without any form of Parliamentary scrutiny, particularly in view of the paucity of detail on the face of the Bill to guide how the power is to be exercised”.

The Minister responded to that report and to the following one dealing with the second half of the Bill on 23 March. Although I am speaking in an understandably critical vein, at this point I pay tribute to the noble Baroness for the care and courtesy with which she has handled proceedings on the Bill and for her readiness to engage with noble Lords in all parts of the House. However, I have to take issue with her on what she said in her reply to the Select Committee. She said:

“The nature and amount of information that will be contained in the determination … means that it is appropriate to use a determination rather than a statutory instrument. The determination will contain the formula, the assumptions and the payments for … each of the 165 local housing authorities … including, amongst other things, the authority’s vacancy rate, the value of its high value housing, the number of high value properties and amounts in respect of transaction costs and attributable debt … In setting out such a large and complex set of data there is the potential for errors to creep in, which would only be noticed by the relevant local authority. We therefore want to ensure that there is flexibility to amend the determination very quickly to correct any such errors”.

There is a syllogism here which I hope the noble Baroness will acknowledge. She is in effect saying: first, there is a huge amount of information; secondly, all that information must be in the determination; thirdly, it is too much information to put into an SI, especially if correction might be needed; and fourthly, ergo, the determination cannot be in an SI. But that is not so, and I hope that I can help the noble Baroness out of this particular cul-de-sac. The sharp end, as it were—the formula, the assumptions, the payments for each authority—can be in an SI subject to the approval of Parliament. The extensive supporting working can of course be published at the same time, but it does not have to be in a form which is formally subject to the approval of Parliament in an SI.

The distinction in Amendment 132, applying the affirmative procedure to a determination which is of general application and the negative procedure to any which has specific application to an individual authority, would deal very neatly with the Minister’s concern about needing to correct mistakes which could be noticed only by the relevant local authority. A correction of that sort could be done very quickly by a negative SI without needing explicit parliamentary approval—which of course I agree would take time. On the other hand, a systemic error, or a major change in assumptions, would attract the affirmative procedure and Ministers would have to explain themselves to Parliament. That is as it should be and as I hope it will be. I beg to move.

[Lord Kerslake (CB)]

My Lords, I will speak very briefly on this issue because it is almost impossible to follow that advocacy. I learned more in that particular bit about the process of dealing with these issues than I have over a long period.

During the Bill’s passage, there has been a great deal of concern about the things we do not know and cannot see at this point in its progress. We will come on to the question of secondary legislation, as the noble Lord, Lord Lisvane, said, but here and now we have an opportunity to get this issue right between regulation and determination. Any technical issues that might flow from that were amply addressed by the noble Lord. I commend the amendment to the House as a practical and sensible way to address a continuing strand of debate throughout the whole passage of the Bill.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Williams of Trafford) (Con)]

My Lords, first, I welcome the noble Lord, Lord Lisvane, to his first outing on the Housing and Planning Bill and pay tribute to his constitutional expertise in the other place, which he now brings to this House. It may help him if I say that I have listened very carefully to what he and other noble Lords have said on whether regulations on the definition of “high value” should be made under affirmative resolution. I also pay tribute to him for his work on the Delegated Powers and Regulatory Reform Committee. As a direct result of the committee’s work, I have considered further its point about delegated powers in this chapter. I shall go into a bit more detail in a few moments, but I believe that the House should have the opportunity to scrutinise the detail before the regulations come into force, so I shall return to this at Third Reading.

On the specific amendments tabled by the noble Lords, Lord Lisvane, Lord Kerslake and Lord Beecham, I understand that Amendments 53 and 132 reflect the recommendations made by the DPRRC in its report on Parts 1 to 5 of the Bill, published on 5 February. As I have announced, we will bring forward an amendment to make the high-value regulations affirmative. I shall focus on Amendment 53 and the corresponding part of Amendment 132, which would require determinations to be made through regulations and, under certain circumstances, subject to the affirmative procedure. I know that the noble Lord, Lord Lisvane, is a member of the DPRRC and will have seen my letter of 23 March to my noble friend Lady Fookes, the chairman of that committee, where I set out the reasons why we considered that we should not accept the recommendation to put the determination into regulations. If the noble Lord will forgive me, for the benefit of your Lordships’ House, I shall now repeat some of my reasoning here.

Our view is that the determination is the most appropriate way of setting out the information of what payment a local authority will make to the Secretary of State. The key elements of the calculation are set out in the Bill, including the housing to be taken into account and the definition of vacancy. Other elements, such as the definition of high value and the types of properties which are to be excluded will be set out in regulations and therefore subject to further parliamentary scrutiny. Indeed, my announcement that the definition of high value is to be made through an affirmative procedure has, I hope, demonstrated my willingness to listen to the House. As I explained in my response to the committee, we also think that the nature and amount of information contained in the determination means that it is appropriate to use a determination rather than a statutory instrument. The determination will contain the formula, the underlying assumptions and the payment for each authority, as the noble Lord pointed out, but it will also include the figures to determine the payments for each of the 165 local authorities, including, among other things, each authority’s vacancy rate, the number of its high-value properties and the level of its attributable debt.

Such a large and complex set of data creates the potential for errors to creep in, which will be noticed only by the relevant local authority. We therefore want to ensure that there is flexibility to amend the determination very quickly to correct any such errors. We of course welcome scrutiny of the formula and other elements of the determination. That is why Clause 69(2) requires the Government to consult all affected authorities, the LGA and relevant professional bodies before making a determination. On this basis, and with the amendment that I have announced on high-value regulations, I urge the noble Lord to withdraw the amendment.

[Lord Lisvane]

My Lords, I am extremely grateful to the Minister. With her customary diplomacy and courtesy, she has given us about a quarter of a loaf. It may tend towards a third of a loaf, but not more than that. In effect, she has accepted the second element of Amendment 132. However, the issue of the determination being in regulations subject to parliamentary approval is serious. I was much fortified by the remark of the noble and learned Lord, Lord Hope of Craighead, who has immense experience and knowledge, about the possibility of protecting what was done from judicial review in a way that would happen if there were parliamentary approval. I hope the Minister will acquit me of any churlishness, but the remaining elements of Amendments 53 and 132 are important enough for us to test the opinion of the House on Amendment 53.