Housing and Planning Bill
Debate between Lord Lisvane and Lord Kerslake
Lord Lisvane (CB)
My Lords, your Lordships’ Amendments 37 and 184 taken together would make the Secretary of State’s determination in respect of vacant high-value housing be introduced by regulations that are subject to the affirmative procedure for matters of principle and the negative procedure for matters relating to a single authority. I do not accept the Minister’s argument that a determination has to be, as it were, a single operation. I believe that it is technically possible to separate the issues and apply a different procedure to each one. Without these amendments, Ministers would have absolute freedom to make decisions in this area subject only to judicial review, as my noble and learned friend Lord Hope of Craighead pointed out on Report.
This is an issue of the level of parliamentary control. Your Lordships wish to see that level raised. It appears that the House of Commons did not. However, I welcome Amendment 184A, which would make the definition of higher-value housing subject to affirmative regulations although, as I said on Report, this is slightly less than half the loaf. I was for a while slightly puzzled by the fact that Amendment 37, relating to the level of parliamentary control, should be designated as one attracting financial privilege. I thought, on reflection, that the judgment must have been made that a delay in achieving the end would mean a delay in receipts and so I accept that judgment. Not least because we have been given the privilege reason, I do not think that on Amendments 37 and 184A there is a case for asking the Commons to think again twice.
Lord Kerslake
My Lords, I rise to speak in favour of Motion D1, in my name. These amendments take on board the debate that we had about the perceived restrictive nature of the previous amendments and are changed in some important and significant ways. The first part of the Motion, Amendment 47B, is new and simply confirms that, where a local authority enters into an agreement with the Secretary of State on the one-for-one replacement of a vacant council property that has been sold off, it will be able to retain the funding needed to build a new affordable home. An affordable home would, under the Government’s definition, encompass social rented, affordable rented, shared ownership and, indeed, starter homes. It would be for the local authority to decide whether it wished to enter into an agreement with the Secretary of State and, under this amendment, for the Secretary of State to agree whether they wish to do this—no restriction on either side. If it does so, the local authority will be required to replace one property sold with one new one, which was a welcome addition during the debate on the Bill. However, it will also be for the local authority to consider whether the new affordable property is for rent or for sale, based on the assessment of local needs. The amendment puts beyond doubt in the Bill that the local authority will be able to retain the funding required to deliver this replacement. As such, it is entirely consistent with the Government’s manifesto and I hope, therefore, that the Minister can readily accept it.
Amendment 47C builds on this issue and seeks to put beyond doubt that, where a local authority can make the case—this is in addition to the Secretary of State—on the basis of its particular needs, it will specifically be able to fund the provision of the new dwelling as social housing on a like-for-like basis. Again, the choice is there for the local authority to make its case to the Secretary of State and it is for the Secretary of State to take a view on that case. If they both conclude that there is already sufficient social rented housing in the area, the local authority can choose to build affordable housing for sale or affordable rented housing at a higher level of rent. However, if they conclude that they want to replace with a social rented property, the local authority can make the case on the grounds of its particular need and this amendment will give it the opportunity to do so.
Why is this amendment needed? First, because the other routes to deliver social rented and affordable rented housing will be severely curtailed by other actions that the Government propose taking, both under this Bill and outside it. The new starter homes requirement that we have just discussed will squeeze new social rented housing out of Section 106 planning agreements. Grant funding for new affordable rented properties by the Homes and Communities Agency will almost entirely cease after the current affordable housing programme ends in 2018. The reduction of rents by 1% per annum over the next four years will make it much harder for housing associations and local authorities to deliver viable schemes with social rented housing in them. Taken together, these changes present a formidable challenge to the continued delivery of affordable and social rented housing. Therefore, the ability to replace the forced sale of vacant council houses represents one of the few routes that will be available to secure new social rented supply.
My second reason for these amendments is to provide some protection for local government against the huge unresolved issues in this policy. Since Third Reading, the Public Accounts Committee has published its report on the extension of right to buy. It makes for sobering reading, to say the least. I will quote a small part of it:
“Despite the implications and complexity of this policy, the Department has not published a detailed impact assessment to inform Parliament’s consideration of its legislative proposals. Many key policy details have not been clarified, with the Department offering only vague assurances as to how this policy will be funded, without producing any figures to demonstrate that additional funding from central or local government will not be required”.
It is worth noting in this context that Shelter has issued research today which suggests that local authorities will need to sell off some 23,500 properties a year— 30% of their vacant stock—if they are to deliver the level of receipts set out in the Conservative Party manifesto. Given the potential scale of the impact and the verdict of the Public Accounts Committee, it is not unreasonable to look to provide some protection for local authorities in the Bill. The risk otherwise is that proper replacement will be the first thing to go.
My third and final reason for these amendments is the desperate need for more housing for those on low incomes. In some low-demand areas, social rents are little different from market rents, but in other areas, particularly London and the south-east, the problems are acute. Average market rents in London are now some £1,400 per month, or £16,800 per year, making it pretty tough for the median earner in London on a salary of £30,000. They are completely beyond the range of those on lower incomes. Rents for social housing are typically one-third of that level, making it accessible to ordinary people. But we are simply not building enough new social rented housing, and just one consequence of that is that some 3,400 families with children in London are living in temporary accommodation. This is a scandal and something that all political parties are committed to ending. The forced sale of higher-value properties—typically bigger family properties—in the highest demand areas without proper like-for-like replacement will make these problems even greater.
I have gone through these issues at length to emphasise just how much is at stake and why these amendments are so important. They confirm the funding of one-for-one replacement and provide the opportunity to deliver new like-for-like social housing where a local authority wishes and where it can make a persuasive case to the Secretary of State on grounds of need. These are not restrictive amendments, they are enabling amendments to address a very serious issue. I hope the Government will recognise this issue and that noble Lords will support Motion D1 when we come to vote on it.
Housing and Planning Bill
Debate between Lord Lisvane and Lord Kerslake(8 years, 1 month ago)
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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.