National Assembly for Wales (Legislative Competence) (Housing and Local Government) Order 2010

Lord Rowlands Excerpts

Tuesday 13th July 2010 Grand Committee

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I beg to move that the Grand Committee does report to the House that it has considered the draft National Assembly for Wales (Legislative Competence) (Housing and Local Government) Order 2010. For ease, I shall henceforth refer to this order as the housing LCO. This is the first LCO that I have spoken to in this House. It is a particular pleasure to deal with devolution issues that relate to Wales after many years of being more familiar with devolution issues that relate to Scotland.

This draft housing LCO was approved by the National Assembly on 24 February. The previous Government laid the draft LCO before Parliament in March. For whatever reason, no time was found to debate the LCO in either House before the general election. I am pleased that the coalition Government committed to take forward the housing LCO in our programme for government, which is what we are doing. The draft LCO was approved by the other place on 7 July, having been debated in Committee on 5 July, and it comes before this Grand Committee today for debate only two months after the coalition Government took office.

Noble Lords may be aware of the discussions that have taken place between the coalition Government and the Welsh Assembly Government in relation to the scope of this LCO. I shall address that issue immediately. The coalition Government have been concerned that this LCO devolves legislative competence that the Assembly would not necessarily need. The Assembly Government are committed to seeking legislative competence to suspend the right to buy in areas of housing pressure. However, competence in the LCO covers disposals of social housing generally, including abolition of the right to buy. Indeed, as I understand the situation, when an LCO on this issue was first proposed in 2008, the Welsh Affairs Committee in the other place recommended that it should not proceed while it included the ability to abolish the right to buy. We are grateful indeed for the reassurances given by the Welsh Assembly Government that they are fully committed to the right to buy scheme and have no intention whatsoever to abolish it.

The coalition Government are similarly grateful for a further reassurance from the Assembly Government not to seek powers to usurp the views of local people and dictate the location of Gypsy and Traveller sites. Given these assurances, and our commitment to progress this order through Parliament before the Summer Recess, I am pleased to support this LCO today.

[Lord Rowlands]

I apologise for interrupting the Minister, but as this is a vital point perhaps we might clear it up straightaway. He says that an assurance has been given, and I am sure that that is true, but paragraph 7.23 of the Explanatory Memorandum states that,

“legislative competence would enable the Assembly, if it so wished, to replace the current Right to Buy scheme with improved and updated schemes to assist home ownership”.

That suggests that the Assembly might abolish the scheme but replace it with something else. Does the present competence order still allow the Assembly to do such a thing?

--- Later in debate ---

[Lord Rowlands]

My Lords, I, too, offer my best wishes to the noble and learned Lord, Lord Wallace. He has a remarkable record. He has served in not one but two coalition Governments, which is pretty good going. He and I go back a long way. In the 1980s, as young Back-Benchers—not so young in my case, but he was young—we spent some time trying to make Ministers’ lives more uncomfortable on various energy Bills. I welcome him. It is not our job to make his life more uncomfortable than necessary during his service to this House and to Welsh affairs.

Like other noble Lords, I believe that the role of this House in scrutinising LCOs is to consider the drafting and the process and to ensure, above all, clarity of competence, but not necessarily to pick at the policies, as the noble Lord, Lord Roberts of Conwy, has done. That is not our fundamental function, because those are the functions of elected Members; it is they who make the decisions and come to the conclusions that they do about whether we should adopt this or that policy. I have never adopted the view that we should take a strong political view, whether one feels strongly for or against an order politically. It is the duty of this House to respond on the process and clarity of competence. As the noble and learned Lord, Lord Wallace, reminded us, he and I served on the Constitution Committee, which began the task of scrutinising these LCOs when they first came into being.

There was an issue of clarity of competence on the right to buy. I was interested in the Minister’s reply to my brief intervention that the competence still stands. Paragraph 7.23 states that the order will give the Assembly the competence,

“to replace the current Right to Buy scheme with improved and updated schemes to assist home ownership”.

That is incorporated in this order; it has not been removed. I happen to support the policy, but I wonder whether the noble and learned Lord and I in our early Back-Bench days would have been as generous about this proposal as we plan to be today. We are saying to the Government that we can give the Assembly the power because it has told us that it is not going to use it. If I was a Minister proposing such a proposition, I would imagine a fair degree of criticism of such a position. However, that is the position that we have arrived at, with the Minister saying that the Government have had assurances that the power is not going to be used—although he admitted that that cannot bind future Governments in the Welsh Assembly. Nevertheless, we are going to let the power go through because it is not going to be used. I confess that that is normally an appealing case to Back-Benchers, wherever they stand on an issue. I look forward to a further defence of that position when the Minister comes to reply.

Before I come to the rest of what I want to say, let me make an aside. As the noble Lord, Lord Roberts of Conwy, said, there have been some 140,000 sales of council property. My constituency days are now more than 10 years ago, but I cannot remember towards the end of my period in the mid-1990s many right to buys being exercised in Merthyr and Rhymney. The first great swathe of purchases took place in the mid-1980s. I am interested to find out how much of a pressure there is. Can the Minister give us figures on how many sales took place last year under the right to buy? I fear and suspect that by far the largest portion of that 140,000 was purchased in the first decade. I wonder how much of an issue it is. Because I no longer have a constituency to serve, I accept that I may not have a feel for whether the pressures are still there and in what form and degree. Perhaps we could have some figures on recent purchases that have taken place—for the last 12 months, for example.

I do not want to quibble with the policy because I have full sympathy with the burden of the case made for this LCO, but I want to put this into an LCO context. I suppose that I belong to a small band of people—there are not many of us—who are fans of LCOs. I happen to be a fan because they arose out of the deliberations of the Richard commission, on which I had the privilege to serve. Wherever one stood on the issue of the full transfer of powers, LCOs were seen as an interim measure that would enable the Assembly to expand legislative competence. Therefore, I have been a great defender of the process and I continue to be one.

Before I sit down, I shall suggest to the Minister that, between now and the referendum, we should assess what has happened and the extent to which legislative competence has been transferred. For example, seven new matters are to be put into Schedule 5 as a result of this one order. When one looks at the informative Explanatory Memorandum and the appendix to it, which shows the other amendments that have been made to Schedule 5 to the Government of Wales Act, one can tot up more than 60 matters that have been included in the schedule since the passing of the Act, as a result of these orders and of framework powers in legislation. I contend that that is a significant and meaningful transfer of legislative competence from Westminster to the Assembly.

Despite the tendency to malign these orders, they have served a legislative purpose, which I am willing to defend wholeheartedly, as a means by which the Assembly has been given competence to legislate. Perhaps in reply the Minister could bring us up to date on how many LCOs there have been. I used to keep count, but an election and a couple of other things have interrupted my arithmetic. I thought that there were a dozen or 15 before, but perhaps he could give us an update on the number of LCOs that have passed through this House. I do not believe that either this or the other place has created a logjam for transferring legislative competence to the Assembly. These orders have gone through.

To date, how many measures in the Assembly have flowed from these orders? Have we been holding up the Assembly in its legislative activity? The last time I took stock, only a third of the LCOs had led to measures. Again, that would be useful informative background to the debates that will take place in the months to come on the transfer of power under Part 4 of the 1998 Act through a referendum. I would like an assessment of where we stand. How many measures have flowed from the orders that we passed in this place and the other place as a result of the 1998 Act?

My other question relating to the informed debate that we should have on these issues in the run-up to the referendum is: what, in total, will be left to transfer under Part 4 in the main areas of policy? Let us take housing, health and education. Paragraph 4.2 of the Explanatory Memorandum says:

“The Welsh Ministers already have devolved to them significant executive powers and secondary legislative powers across a wide range of legislation relating to housing”.

That has already happened. It lists 10 Acts that are involved. In the area of housing, health and education, how much legislative competence has already been transferred within the total responsibility of the Welsh Assembly Government? I have the impression that we have now substantially transferred a considerable degree of competence to legislate in these three key areas. This order is very much an addition to that list.

Finally, I seek clarification from the Minister on the exceptions. As he will know, when we have scrutinised other orders, exceptions have been attached to the order to show that the writ will not run in certain respects. In this case, the exceptions are of a general kind. Provisions relating to housing benefit and to council tax benefit are exempt or excluded from the power to legislate within the Assembly. In the wake, possibly, of a successful referendum, so that Part 4 comes into play, what will happen to these exceptions? Will they remain or will they be swept aside by Part 4? In other words, under Part 4, will the whole area of council tax and housing benefits be transferred legislatively to the Assembly, so that the Assembly can change the character of such benefits? Until now, we have maintained a degree of conformity and uniformity across England and Wales in social security benefits, particularly those for council tax and housing. I should like to see how this will unfold during the debates that we will have in the coming months.

I support the order, just as I have supported, with occasional queries and questions, the orders that preceded it. Once or twice, the Constitution Committee has raised serious issues about drafting. I hope that we can be confident that Assembly consideration of this kind of legislation after a successful referendum will be as vigilant as, I believe, that of both Houses and the Welsh Affairs Select Committee has been in helping us to scrutinise LCOs, which have been an important development in Welsh legislative history.