Subordinate Legislation Committee

Meeting date: Tuesday, October 23, 2012

Official Report 271KB pdf

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Instruments subject to Negative Procedure

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Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Regulations 2012 (SSI 2012/258)

The drafting of the regulations appears to be defective, in that schedule 2 inserts a new schedule 5 into the Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Regulations 2004 (SSI 2004/117). Paragraph 4 of the new schedule 5 purports to make provision about the procedure that local authorities must follow when considering applications for innovation and investment fund grants. It does so by requiring local authorities to ensure that procedures for the invitation of applications, the assessment of applications, and the approval of grants are carried out in accordance with the terms of a specified external document.

That document, however, does not appear to contain any provision to regulate the procedure to be followed by local authorities in considering applications for IIF grants. The document concerns itself with how the Scottish ministers and the Convention of Scottish Local Authorities will deal with applications for IIF grants from local authorities themselves. The lack of specification about how a document for a different purpose is to be given effect in such circumstances casts doubt on whether the regulations make any effective provision for the procedure that is to be followed by local authorities, despite that being its apparent intention.

Do members have any comments?

The committee should ask, in fairly strong terms, for the issue to be clarified, not least because such projects are often partially funded by private borrowing, and we all know that the banks are tightening their lending criteria while also tightening their due diligence. Under those circumstances, I would welcome much greater clarity.

I echo those sentiments. I am also interested in getting clarity about shared properties, such as in a close, where clerks of works or agents are used, and the safeguards that are in place to protect people who live there. It would also be interesting to find out whether we are still relying on the local authority to act on behalf of owners who carry out works or whether clerks of works or agents will act on their behalf. The regulations are not as clear as I would like them to be.

Our legal advisers might be able to give us some clues on that question.

I might be of some assistance to the committee. My understanding of the partnership support for regeneration grants under schedule 2 of the regulations is that they seem to be targeted primarily towards providing, but also towards improving, repairing and adapting subjects to provide housing that is for sale for owner-occupation.

I am not entirely sure whether those grants would necessarily be apt to cover the situation that committee members appear to have in mind. I agree that it is not entirely clear, though, exactly how the grants will operate, but it strikes me that perhaps they might be aimed at a slightly different target. That is my understanding of the matter.

10:45

That perhaps makes the point that, if the procedure is not laid down in the way in which we are expecting to find it, it is difficult to know quite what it might cover.

That is exactly the point that I am trying to make. The clarity is missing. It needs to be a little more focused, if that is at all possible.

Does the committee agree to draw the regulations to the attention of the Parliament on reporting ground (i), as the drafting appears to be defective?

Members indicated agreement.

That is our view, and I am sure that the Government will feel the need to respond.

Secondly, the form or meaning of the regulations could be clearer. Schedule 1 inserts a replacement schedule 2 into the Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Regulations 2004. Paragraph 4(g) of the replacement schedule 2 purports to provide procedures to be followed by a local authority in considering applications for partnership support for regeneration grants. However, the provision requires that the applicant has, or is able to obtain, control of the development site. As such, it appears instead to be a criterion for eligibility and so the meaning of the regulations would be clearer—and the internal form of the regulations being amended more closely respected—had that provision been contained in part 2 of the schedule, which prescribes the classes of persons who are eligible to apply for grants of this type, instead of appearing in part 3 in the guise of a procedural requirement.

That would appear to be just one more area of uncertainty and lack of clarity. Does the committee therefore also agree to draw the regulations to the attention of the Parliament on reporting ground (h), as the formal meaning could be clearer?

Members indicated agreement.

I will make a point of clarification. There might have been some confusion about what I said most recently. I think that the question that was asked dealt with schedule 5 IIF grants rather than schedule 2 PSR grants. I apologise for that confusion.

In these circumstances, IIF grants, which were the subject of the first question that the committee was asked to consider, are open only to registered social landlords and their subsidiaries, so it is hard to see how that sort of grant would ever apply to the private development-type situation that appeared to be being contemplated.

Perhaps the situation is not quite as unclear as we thought.

Perhaps not. The issue is with procedure rather than with eligibility. That is the suggestion.

I still maintain that there is insufficient clarity. There might be instances in which someone has a social landlord, but there might also be private owners within that development. How would those people be affected? Would they be at risk of having to find the full costs or would they be allowed to take part in that scheme? The document does not make that clear.

Those questions will be drawn to the attention of the subject committee, apart from anything else.

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Plant Health (Scotland) Amendment Order 2012 (SSI 2012/266)

The committee agreed that no points arose on the instrument.