Housing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2012

Lord Wallace of Tankerness Excerpts

Monday 6th February 2012 Grand Committee

Moved By

[Lord Wallace of Tankerness]

That the Grand Committee do consider the draft Housing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2012.

Relevant documents: 37th Report from the Joint Committee on Statutory Instruments.

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

My Lords, the draft order was laid before your Lordships’ House on 10 January 2012. In asking your Lordships to agree that it should be considered, I shall provide the Committee with a brief summary of what the order seeks to achieve.

The order is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient changes to UK legislation in consequence of an Act of the Scottish Parliament. The order is made in consequence of the Housing (Scotland) Act 2010, which I shall refer to as the 2010 Act. The Lords Merits Committee has reviewed this order and has not noted it as being of special interest.

The 2010 Act made provision for the regulation of social housing in Scotland, including the establishment of the Scottish Housing Regulator. The 2010 Act repeals Scottish Ministers’ regulation and inspection functions under Part 3 of the Housing (Scotland) Act 2001. In their place, it establishes the Scottish Housing Regulator as an independent body with the objective of safeguarding and promoting the interests of persons who are or who may become homeless, of tenants of social landlords, and of recipients of services provided by social landlords. The Scottish Housing Regulator will operate within a set of priorities agreed with Scottish Ministers but will be accountable to the Scottish Parliament for the efficient use of public resources.

The order will make the Scottish Housing Regulator a part of the Scottish Administration. An important effect of this arrangement is that staff of the agency who presently discharge functions on behalf of Scottish Ministers under the Housing (Scotland) Act 2001 and are currently civil servants will transfer to the Scottish Housing Regulator and continue to be civil servants. The order will ensure that UK legislation is updated to reflect the changes made in the 2010 Act, and will ensure that UK legislation can continue to operate where it interacts with the new devolved legislation. It will also ensure that the Crown Suits (Scotland) Act 1857 does not apply to the Scottish Housing Regulator, with the effect that the Lord Advocate cannot be sued in the place of the Scottish Housing Regulator.

The order demonstrates the Government’s commitment to working with the Scottish Government to make the devolution settlement work. I hope that the Committee will agree that this order is a sensible use of the powers in the Scotland Act to achieve a practical outcome. I commend the order to the Committee and I beg to move.

[Lord Browne of Ladyton]

My Lords, I thank the noble and learned Lord for his words of introduction. I should say at the outset that I have no issue of principle with, or any objection to, the order before the Committee. I shall take only a few minutes of the Committee’s time to make some points of context and to raise one point for clarification.

As the noble and learned Lord and indeed the Explanatory Memorandum make clear, the order is consequential on the provisions of the Housing (Scotland) Act 2010—unusually, I suppose, for an Act of the Scottish Parliament, which among other things makes provision about the regulation of social housing in Scotland. It is unusual to the extent that it is not normal for regulations to be made here in consequence of an Act of the Scottish Parliament when there are provisions, as the Minister has pointed out, to ensure that where necessary consequential provisions require Acts of this Parliament they will be carried out in the context of the Scotland Act 1998.

In turn, the 2010 Act is just the legislative leg of a journey that started back in October 2007 with the publication of Firm Foundations, the discussion document on the future of housing in Scotland that set out the new SNP Scottish Executive’s proposals for reform and their policy ambitions for Scotland. The SNP entered government with an ambition to increase the rate of new supply of housing in Scotland to 35,000 units per year from the 25,000 per year that they inherited from the previous Scottish Executive, and they had an election pledge to build 6,000 socially rented houses for each year in government. However, they are far from realising their primary target; indeed, today the website of Shelter Scotland, drawing on the Scottish Government’s own statistics, shows that in 2010-11 just over 16,000 new homes were built in Scotland, which, as anyone who knows basic arithmetic will see, is 9,000 per year fewer than what they inherited. As a result of the SNP’s cuts to the affordable housing budget, the social sector will fall by 30 per cent this year, which will choke off growth in social housing. At the same time, the SNP has rejected Labour’s five-point plan for jobs and growth in Scotland that would use the revenue generated from the bank bonus levy to create jobs and fund the construction of 2,500 affordable homes in Scotland. Instead, the nationalists have slashed new build approvals to an unprecedented low and seem to have scrapped their manifesto promise and previous targets.

My second general point is that, to the extent that the order reinstates the independent regulation of social housing in Scotland, we support it. However, the real disappointment of the 2010 Act is the missed opportunity to improve the regulation of the private rental sector in Scotland. A strong and responsible private rental sector is vital to delivering affordable housing, and we are committed to rooting out rogue landlords and placing stronger duties on all landlords to maintain standards in the properties that they rent. Those who have represented constituents in Scotland will know that the conduct of these landlords is the bane of many communities there.

I make all these points because, despite the fact that a whole chapter of Firm Foundations was devoted to the rented sector, since then the SNP Government have focused on restricting the right to buy and restructuring the administrative arrangements, of which the set of regulations before the Committee are but a part. They have avoided completely the problems that arise from the private rental sector in every single community in Scotland, and have substantially failed to address the fundamental problem of the crisis in social housing in Scotland.

Despite all that, the changes that the order makes are uncontroversial from the perspective of these Benches. Primarily the changes ensure that civil servants who at present perform the regulatory functions of the existing Scottish Housing Regulator as an agency of the Scottish Executive continue to hold the status of civil servant when they transfer to the new Scottish Housing Regulator, which will be a body corporate. As the Minister has said, this is done by making the new Scottish Housing Regulator a part of the Scottish Administration.

As your Lordships will realise by now, the serious questions that I have in relation to this whole policy are not properly addressed to the Minister at all; rather, they are addressed to the Scottish Executive. As there is an opportunity to put them on the record, though, I could not resist it. I have one relatively simple question for him regarding the second part of the regulations. Article 3 relates to the application of the Crown Suits (Scotland) Act 1857. As I understand it, as this is a body corporate—an independent body, part of the Scottish Administration but not part of the Executive—if one has to sue it, one will not have the benefit of being able to sue the Lord Advocate. In other words, one will not have the option of suing the Government for any action that one has against them.

I should just like the noble and learned Lord to take the time to ensure that those who may at some stage have to read this record are clear that it is the Government’s expectation that that body will have sufficient resources to meet any liabilities generated in relation to anybody who has cause to sue it. It may not be an issue that he is able to address directly without some form of inspiration, so I should be happy for him to write to me about it.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Browne of Ladyton, for his response and for generally welcoming the principle that underlies the order. As he indicated, it has three functions. One is to ensure that the Scottish Housing Regulator becomes part of the Scottish Administration. That is something that the Scottish Parliament does not have the legislative competence to do—hence the need for this order. Again, the Scottish Parliament does not have the competence to change UK legislation beyond the devolved competence, and an order such as this allows that to happen. We will come back to the point about the disapplication of the Crown Suits (Scotland) Act 1857.

The noble Lord said that he thought it was somewhat unusual for us to be here discussing secondary legislation that is essentially an Act of the Scottish Parliament. I understand that since 2000 there have been 51 orders under Section 104 of the Scotland Act. Indeed, I think that since I took office I have brought to a Committee orders under Section 104 on at least three or four occasions. In spite of some of the furore and some of the headlines that one sees about relationships between the Westminster and Holyrood Governments, there is in fact considerable co-operation between the two Governments over a large area of work. There is certainly also a willingness to give the legislation of the Scottish Parliament full effect in areas which it has not been able to tackle as they have been beyond its legislative competence. In such cases, through co-operation and negotiation it is possible to bring forward orders such as this to give effect to the intention of the Scottish Parliament.

The noble Lord clearly raised matters of policy. Tempted though one may be to follow him down that path, although I have many responsibilities, one is not to answer on behalf of the Scottish Government, for which mercy I should probably be very grateful. However, he has taken the opportunity to highlight important housing policy issues relating to building to meet housing need and the importance of ensuring that the private rented sector is well regulated. From his former experience as a constituency Member, he has obviously identified many cases where proper regulation is needed.

It is also fair to point out that when the consultation took place on the Firm Foundations document there was overwhelming support from the stakeholders who responded that there should be a high degree of support for the principle of independent regulation, which of course is what is sought to be done by the establishment of the Scottish Housing Regulator.

The noble Lord, Lord Browne, also asked a specific question about the Crown Suits (Scotland) Act 1857. As he indicated, as a result of the body becoming a body corporate, it was deemed more appropriate that legal action should be taken against the body itself and not against the Lord Advocate. He asked what would happen. I am more than willing to write to the noble Lord with a fuller answer but the short answer is that the public purse would pick up the costs if, for example, there was a judicial review. Clearly, that would be a matter for budget negotiations. It would be a question of whether the Scottish Housing Regulator had the resources for that and whether the budget would have to be adapted in other ways. However, I shall certainly give greater clarification to the noble Lord on that point. I think that only if the board acted well beyond its competence or unreasonably would the costs would fall upon it, but I shall seek to clarify that point.

I hope that I have responded to the noble Lord’s points and I therefore ask the Committee to agree that it has considered this order.

Motion agreed.