Delegated Powers and Law Reform Committee

Meeting date: Wednesday, November 8, 2017

Official Report 625KB pdf

Housing (Amendment) (Scotland) Bill

Agenda item 6 is the Housing (Amendment) (Scotland) Bill. This is an opportunity to identify matters in relation to delegated powers in the bill that the committee might wish to raise with the Scottish Government.

The purpose of the bill is to ensure that the influence that the Scottish Housing Regulator and local authorities can exercise over registered social landlords is compatible with RSLs being classified by the Office for National Statistics as private sector bodies in the United Kingdom’s national accounts.

There are a number of delegated powers in the bill. Our legal advisers have suggested that the following questions could be raised in written correspondence with the Scottish Government.

The delegated powers memorandum indicates that the Scottish Government intends to use the power in section 8 only for the purpose of providing the ONS with the basis for classifying RSLs as private sector bodies in the national accounts if the bill, when enacted, does not achieve that. However, section 8(1) enables the modification of the functions of the Scottish Housing Regulator that relate to social landlords, which does not limit the powers by reference to the purpose or aim of securing the reclassification of RSLs to the private sector in the national accounts. Section 8(2)(a) also expressly enables different provision for different purposes. Does the committee wish to ask the Scottish Government for an explanation as to why it has considered it appropriate to draw the scope of the power in sections 8(1) and (2) in that more general way, or whether the power could be drawn more narrowly while at the same time implementing the policy intentions?

Members indicated agreement.

The delegated powers memorandum indicates that the power in section 8 would be used only for the purpose of providing the ONS with the basis for classifying RSLs as private sector bodies. Does the committee wish to ask the Scottish Government for an explanation as to why it is appropriate that section 8(1) enables the modification of the functions of the regulator that relate to social landlords, which includes local authority landlords and local authorities that provide housing services, in addition to registered social landlords?

Members indicated agreement.

Should it also be asked how it is anticipated that the power would be used in relation to social landlords apart from registered social landlords?

Members indicated agreement.

The delegated powers memorandum indicates how, specifically, the Scottish Government intends to use the power in section 9. In the first instance, it intends to specify in regulations that local authorities may nominate only up to a maximum of 24 per cent of the board members of an RSL and may not exercise control over RSLs—for example, through a power to veto changes in an RSL’s constitution. The Scottish Government intends to use the power subsequently if other forms of local authority control that amount to public sector control over RSLs come to light, or if the criteria that the ONS applies to determine public sector control change and such changes require the powers of local authorities to be amended further, to ensure that RSLs can continue to be classified to the private sector. However, section 9(1) enables any provisions

“for the purpose of limiting or removing the ability of local authorities to exert influence over registered social landlords through—

(a) appointing or removing officers of registered social landlords,

(b) exercising or controlling voting rights.”

Section 9(5)(a) also enables different provisions for different purposes. Similar to the powers in section 8, the powers are not limited by reference to the purpose or aim of securing the reclassification of RSLs to the private sector in the national accounts.

Does the committee wish to ask the Scottish Government for an explanation as to why it is considered appropriate to draw the scope of the powers in section 9 in that more general way, or whether the powers could be drawn more narrowly while at the same time implementing the policy intentions?

Members indicated agreement.

Should it also be asked why it has been considered not appropriate to set out the initial intentions for the exercise of the power on the face of the bill: that is, that the regulations may specify that local authorities may nominate up to a maximum of 24 per cent of the board members of an RSL and may not exercise forms of control over RSLs, such as the power to veto changes in an RSL’s constitution?

Members indicated agreement.