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Agenda item 4 is for the committee to consider the delegated powers provisions in the Private Housing (Tenancies) (Scotland) Bill as amended at stage 2.
At stage 2, there was one new power and two revised powers. The revised power in section 30(2) allows the Scottish ministers to designate a rent pressure zone. The bill was amended at stage 2 so that the procedure to make regulations to designate a rent pressure zone is restricted to when the zone is first so designated, and any subject revocation or amendment of the zone is subject to the negative rather than the affirmative procedure.
The justification for the change, as provided by supplementary delegated powers memorandum, is that there may be a need to respond quickly to market conditions and that the affirmative procedure would be a barrier to “expeditious action”.
The committee may wish to have regard to the steps that are taken before a rent pressure zone can be designated by the Scottish ministers in regulations—including their being subject to affirmative procedure—and we may wish to consider that a similar level of scrutiny by the Parliament should be available when it is proposed that a rent pressure zone is amended or revoked.
The committee may consider that the affirmative procedure would provide adequate scrutiny and would also meet the Scottish Government’s needs. A model is found in section 68(4) of the Land and Buildings Transaction Tax (Scotland) Act 2013. That procedure would allow regulations to be made and, if necessary, have effect during periods of recess.
I would agree with those points. It seems to me that there are some quite considerable steps to be taken before the initial designation can be made. Although a subsequent step might be minor, it could also be major. If it involves undoing the whole of a rent pressure zone, in my opinion that is a major step and should require the provisional affirmative procedure.
The Government could take a number of approaches to the matter. One that occurs to me is that it could perhaps restrict the power under the negative procedure to orders that have effect only for a limited period—say, for the sake of argument, for 60 days—which would give it time to use an affirmative procedure.
I am not saying what the Government should do, but I share the concern that my colleague John Mason has expressed that something as substantial as the original order might be dealt with under the negative procedure. I understand the issue about urgency, but I think there are other ways of dealing with the matter that the Government should consider.
I am supportive of what my colleagues Stewart Stevenson and John Mason have said. It is a very big step to amend or revoke a rent pressure zone. The procedure needs to be an enhanced procedure, rather than just the negative procedure. I would be content with and supportive of my colleagues’ comments.
I am supportive of the comments about changing the procedure from negative to affirmative, but I have a question as well.
Section 32(3) describes how the provisions regarding the zone will “cease to have effect” after five years. If the Government made an amendment under the negative procedure at a point near the end of the five years, would that extend the period?
I think that the affirmative procedure is a better procedure. It gives proper scrutiny.
I am happy to ask that question. If the original order was for five years but an amendment was made part of the way through, would the amendment run for five years, or would it merely be an amendment of the original five-year period?
Looking at it cold—
Sorry, I just thought of that question.
It is a good question.
I think that the original five years would run, but I would need to look at the provisions properly. The issue has first come up now, so I would want to consider it, but I think that the five years would expire on the original regulations.
Either way, it does not seem unreasonable to read the bill as an opportunity, in theory, to bring in an extremely strong procedure for one street and then to have an amendment that would cover the whole of a town. I am not arguing that the Government would do that, but it seems a strange way to set up the law. A zone could be expanded to the whole of a town, rather than just taken away from one street. It looks as though the amending procedure is rather underweighted.
Does the committee agree that a change in procedure for regulations under section 30 that amend or revoke a rent pressure zone from the affirmative procedure to the negative procedure is unacceptable?
Members indicated agreement.
Does the committee agree to recommend to the Scottish Government that the provisional affirmative procedure may be more appropriate, and to suggest that a model similar to the one in section 68(4) of the Land and Buildings Transaction Tax (Scotland) Act 2013 should be adopted?
Members indicated agreement.
Do you want us, at this stage, to agree that if the Government does not propose an amendment we will put one forward, or is that a decision for us to make at another time?
I think that that is an interesting discussion to have now. Thank you for raising the issue. How do we see this?
My inclination, if the Government does not propose an amendment, is for us to put one forward.
How do colleagues feel about that?
I agree with the principle of what John Mason is saying, but we should allow the convener to make that choice, in the light of what emerges. I trust the convener; I do not think that we should tie his hands by saying that he must lodge an amendment if the Government does not. He should look at what happens and take soundings from members of the committee in an appropriate way. We should empower the convener to put forward an amendment if, after we see what is brought forward by the Government, his soundings of committee members suggest that that is the right thing to do.
Do any other members have a view? I am very happy to take those soundings now, because I think that there are various ways of tackling this situation.
I support what John Mason said. If the Scottish Government does not bring forward such an amendment, we should put one forward on the affirmative procedure. We have a meeting on Thursday; will we know about the Government’s amendments by then?
Not necessarily—I am told—which is why I think that, given the general timescale, it might be wise for us to do something proactive. Maybe I should write to the Government laying out our concerns. As always, I am sure that somebody will be watching the committee literally as we proceed.
If there is a general concern about the procedure, there must be some options as to how the Government could handle the matter. One would be for it to give itself a different kind of power if it is dealing with something minor. Secondly, it could give itself a different kind of power if it is merely to revoke something that already exists on a small scale—on the other hand, if revocation is as significant as setting up a zone in the first place, maybe even that is not logical.
I am in members’ hands. I am quite prepared to write to the Government, pointing out that we think that there is an issue.
I think that the logical first step would be to write to the Government. As you say, the Government will doubtless be watching these proceedings. The letter should intimate formally that we are unhappy with what it is proposing. I am certain that discussions can take place between our advisers and the Government in the meantime, and if the Government does not wish to bring forward an amendment, we should perhaps reserve the right to do so.
We certainly have the right to do that—we do not need to reserve it.
If colleagues have nothing to add, I will pursue those thoughts in writing, and no doubt there will be discussions between legal advisers and the Government.
Just for clarification, you are going to write to the Government and lay all of that out.
I am going to write to the Government to lay out the general issues as we have raised them.
Right. We will see what happens, but I endorse Stewart Stevenson’s suggestion that we empower you to lodge an amendment if we are not satisfied with the response.
Thank you. If there is any indication by Thursday that there is something that we need to discuss, I will ensure that we have something positive to talk about then. I will talk to the clerks.