Subordinate Legislation Committee,

Meeting date: Tuesday, May 24, 2005

Official Report 165KB pdf

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Delegated Powers Scrutiny

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Housing (Scotland) Bill: Stage 1

Members will recall that we took up a number of issues with the Executive. The first one is to do with section 11(3), which provides a power to issue guidance on how references to the tolerable standard shall be construed. The Executive considers that guidance is appropriate, as it might relate to issues such as electrical safety, which are likely to be defined by reference to industry standards and norms. The guidance will cover a variety of things, and we need to be flexible. Do members wish to report that the Executive has provided the clarification that we sought on that point?

Members indicated agreement.

Section 20(2) provides a power to issue guidance on written information to be provided by a landlord to a tenant at the start of a tenancy. The section puts landlords under a legal duty to provide written information to tenants about the landlord's repairing obligation. The committee considered that the guidance should perhaps be subject to parliamentary scrutiny, and asked for comment on why the Executive felt that the power should be exercised by guidance rather than by regulations.

The Executive has clarified that landlords will not be bound to follow the guidance, and that they need only have regard to it, which means that it is not legislative in character. On the lack of enforcement powers, the Executive explains that it envisages that the requirement will be enforced through the Antisocial Behaviour etc (Scotland) Act 2004. Are members happy to report that we have received the necessary clarification from the Executive?

Members indicated agreement.

Section 50(8) provides a power to issue guidance to local authorities on their exercise of a new power to contribute to the maintenance costs of private owners. The Executive has explained that local authorities will have discretion under section 50(3) to decide whether to make payments towards maintenance costs. I think that Murray Tosh was concerned about that. There is no intention to direct local authorities on when they must make a payment. Is that okay?

The matter still rests on a declaration by the Executive. I asked whether the wording of section 50(8) allowed the Executive to make mandatory things that are discretionary. A statement that the Executive will not do so is not the same as saying that that cannot be done. However, I presume that this will now form part of the written record and part of the body of information upon which people seeking to interpret the law will depend. Therefore, I am happy to accept the Executive's statement of what it intends and does not intend to do as sufficient.

The Executive has said of the guidance:

"There is no compulsion to follow it if other factors in particular circumstances make it reasonable not to follow it."

So it comes back to reasonableness, which is all about legal interpretation and so on.

Absolutely. Is what the Executive has given us sufficient? What is the committee's opinion?

I think that it probably is.

Members indicated agreement.

We will report that we have received the clarification that we sought.

Section 51(3) is on the right to adapt rented houses to meet the needs of disabled occupants. Members will recall that the committee asked about how reasonableness would be assessed in relation to the provision. We wondered whether the Executive might issue guidance on the matter. We also asked how a tenant might challenge a landlord's refusal of consent.

The Executive draws the committee's attention to section 52(1) of the bill, which is a list of considerations to which the landlord should have regard when considering consent. The Executive's letter gives some practical examples of when it considers that it might be reasonable for the landlord to withhold consent under the terms of section 52(1). Section 52(4) provides that it is reasonable for consent to be withheld if the landlord would face some legal sanction were the proposed work to be carried out. The Executive intends to issue guidance on the matter, although it would seem that it does not intend to do so under a delegated power in the bill. Is that all the clarification that we need?

I asked whether case law was involved and was adequate to help tenants to obtain redress. The response is that there is case law. Therefore, the decision that it is inadequate is primarily a policy response, which would be addressed by the lead committee if it felt that the matter needed to be investigated.

Are we reasonably satisfied with the clarification that we have received?

Yes.

Section 88(4) is the power to make regulations amending a definition and setting terms for loans. The committee considered that the regulations should be subject to the affirmative procedure, to which the Executive has agreed.

We should watch out for the amendment at stage 2.

Has the Executive actually agreed to change the procedure, or is it just considering doing so? The brief states:

"The Executive has agreed to consider changing the procedure from negative to affirmative."

Okay—I was perhaps being optimistic.

Should we ask the Executive to advise us of its decision, rather than simply waiting to find out whether an amendment is lodged? We might miss it in all the to-ing and fro-ing. I am sure that the Executive will accept that it is reasonable to give us the courtesy of a final decision, both on this matter and on a similar issue that is coming up.

Members indicated agreement.

I agree that we should ask the Executive to give us more detail and keep us updated about how the matter is progressing.

Section 91(1) provides a power to issue directions to local authorities in relation to the provision of assistance under part 2. The power is very wide and we put various options to the Executive, which were: exercising the power by issuing guidance; limiting the direction-making power; or exercising the power by making regulations or orders subject to parliamentary scrutiny. The Executive points out that a power of guidance on those matters has been provided at section 91(4) of the bill. A more limited power of direction is rejected on the basis that it would not enable the Executive to achieve its aims. Regulations, according to the Executive, would not provide the flexibility and speed that would be required to tackle matters, if necessary at local level.

I think that we should welcome the response and accept the reasons for the Executive's decision. However, I think that we should also comment on the fact that the original justification was contained in only two lines of text, which did not give us sufficient information. Nevertheless, we should report that we are content now that we have received the explanation.

The explanation really shows how the Executive is trying to be consistent between and within local authorities.

I agree, but it is yet another example of something that comes up virtually every week. If the Executive had just given us proper and adequate information in the first place, there would not have been the to-ing and fro-ing of correspondence. That was another good example of the problem. I am quite happy with the explanation that has been given, but the two lines of text were not adequate at all.

I also ask for members' views on the width of the power, and I seek comments on whether you consider that the Executive's memorandum on delegated powers provided an adequate explanation of the power.

No, it did not. It is a wide power, and I think that we should send back a message to say that we will be paying specific attention to the adoption of such wide powers in the future.

Is that agreed?

Members indicated agreement.

Section 102 concerns the power to make regulations setting out exemptions and exceptions from the general duty on persons marketing houses for sale to hold and provide certain documents to potential buyers under part 3. The committee felt last week that such exemptions should either be in the bill or in regulations subject to the affirmative procedure. The Executive has said that it does not want the exemptions in the bill because of flexibility, but it has said that it undertakes to consider changing that. Again, that is the issue that we discussed previously.

I think that it is stronger in this case, because we felt that that example showed that the Executive had really not done the policy work and had not developed its thinking to show clearly what it intended to do. It has come up with some further examples of circumstances where it might not want a single seller survey, and it seems that the more it thinks about the area the more potential exemptions there are likely to be. There is therefore a strong argument that the Executive should certainly let us know what it intends to do. It may well be that, even if the Executive does not want to lodge an amendment, we might want to do so.

Absolutely. That is a similar point to the one that we made previously.

I agree with Murray Tosh up to a point. The Executive has given us a single example of where an exception might be made, with reference to new properties.

I gave some examples in the course of our discussions.

I am sorry. The Executive had given other examples, but it has given only one example here, which is that of new properties. I am not sure that I agree with that. We may be straying into policy, which is an issue for the lead committee, but it does not seem to me that a buyer of a new property has less of a right to a structural report on it than a buyer of any other property. There have been plenty of examples of new build properties with severe structural problems, and people have bought those properties in good faith. The specific example given may not be a good example of the sort of property that might be exempt. That is not necessarily to do with us, but it might be a policy issue for the lead committee. I just wanted to put on the record my view that that is not a good example of how the power should be used and I do not think that the Executive has given an adequate explanation of why there could be exemptions.

That is a good point. In relation to sections 88(4) and 102, we shall write to the Executive about keeping us involved as it moves to stage 2 and considers amendments. It would also be useful to write to the lead committee with the points that Stewart Maxwell has made.

The point is, effectively, that we asked for examples to show what the thinking behind the power was. The Executive has given us one example, which I do not think explains in any way the thinking behind the power. However, that is an issue for the lead committee to take up.

Is that agreed?

Members indicated agreement.

Section 120(1) provides a power that enables ministers to make an order, subject to the negative procedure, that local authorities may exempt certain types of HMO from the requirement to be licensed. The Executive undertakes to consider changing the procedure on that power from the negative to the affirmative by way of amendment at stage 2. That is exactly the same point that we mentioned before.

The Executive also explains that it intends to use this power to enable a local authority to remove the burden of licensing from landlords

"where it is satisfied that the tenant is sufficiently protected by other means".

The Executive confirms that exempting a category of HMO from licensing will mean that fire safety requirements under the Fire (Scotland) Act 2005 will no longer apply.

Your final point touches on the concern that I raised last week. I was concerned that it seemed to be the case that using the Antisocial Behaviour etc (Scotland) Act 2004 would exempt premises from the fire safety requirements under the Fire (Scotland) Act 2005, and the Executive has confirmed that, which I am quite surprised about. That is not what I expected. Again, I think that that is an issue for the lead committee, but I would certainly like to flag up for that committee the need to question the minister, if it has not already done so, in a quite detailed manner on that point. I have serious concerns about exempting anybody from the requirements of the Fire (Scotland) Act 2005 and particularly HMOs.

That is how the issue came to light, is it not?

Yes, indeed.

I entirely agree with Stewart Maxwell. That is a serious concern.

It is a matter for the lead committee.

We shall obviously be writing to the Executive, and now we shall also be writing to the lead committee.

I ought to confirm that members want the affirmative procedure to be used. I had taken that as read. Is that agreed?

Members indicated agreement.

In relation to sections 88(4), the previous sections that we discussed and section 120(1), we want to be kept informed of developments with the affirmative procedure.

Section 126(2) concerns the power to order local authorities to include certain conditions in HMO licences. The Executive expects that it will consult relevant bodies before using that power and does not consider it necessary to put the consultation requirement in the bill. Are members happy about that?

Members indicated agreement.

We shall therefore report to the lead committee that the Executive has provided the clarification that we sought.

Section 155(3) amends the Antisocial Behaviour etc (Scotland) Act 2004 to provide for a code of practice for landlords. Again, we asked for clarification. The Executive explains that the consequence of a person being deemed not fit to be a landlord is that the local authority may refuse to register them as a landlord under the Antisocial Behaviour etc (Scotland) Act 2004. Are there any comments on the feedback that we have received from the Executive?

It seems adequate.

We shall pass on the message that we have got the clarification that we sought.

Paragraph 3(5) of schedule 4 provides a power to direct local authorities regarding the requirement to display HMO applications on premises. We asked for more clarification and have been given examples of situations in which a notice might not be displayed. Examples included women's refuges and accommodation for ex-prisoners, and that seems perfectly reasonable. Are members content to report that we now have examples and that the point has been clarified?

Members indicated agreement.

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Licensing (Scotland) Bill: Stage 1

The next item under delegated powers scrutiny is the Licensing (Scotland) Bill. Again, we put a number of questions to the Executive. Our first question was on section 81(2), which provides a power to specify which licensing board is to exercise functions under part 6. We asked the Executive to explain the need for the power at section 81(2), why it is not subject to the affirmative procedure, and whether the Executive considered that the policy aim could be achieved by an order under section 135.

The Executive has responded that it considers it to be appropriate to reflect any determination under section 81(1) in the text of the legislation itself, and that is why the power at section 81(2)(a) has been taken. The Executive does not consider that it would be appropriate to use the power at section 135, as that is a power to make ancillary provision. The Executive also explains that it chose the negative procedure because it considers that the powers that will be taken at section 81 will not change the function that is to be carried out.

Was that last piece of information provided after the Executive sent its response? I am not sure that that was in the original response.

We received a further written response.

Do we think that the power is relatively narrow and that we could agree to the use of the negative procedure now that we have more information?

Members indicated agreement.

We will report that we have received the information.

Section 91 provides a power to make regulations about closure orders. The committee drew the Executive's attention to the ambiguity of the drafting in section 91(a). That has been acknowledged and the Executive will lodge a correcting amendment at stage 2. We will keep an eye on that. Are we happy to report that?

Our report should make it clear that we cannot comment on whether our concerns have been addressed until we see the stage 2 amendment. I suspect that it would be helpful for the lead committee to know that.

As we went through the Housing (Scotland) Bill we came across similar instances where we do not know exactly what will happen; we will have to wait for that.

On section 91(c), the committee was concerned about licensing boards holding hearings before making closure orders, which was being left to subordinate legislation. The Executive will lodge an amendment at stage 2 that will set out all rights of appeal. Obviously there is a lot more information to come. Again, as Christine May pointed out, we do not have sight of the amendment so we will have to keep an eye out for it.

I think that the Executive enjoys keeping us in suspense.

At least for this bill we know that amendments are coming, whereas in considering the Housing (Scotland) Bill we knew only that the Executive was going to consider making amendments. There is an element of progress.

We ought to point out to the lead committee the general point that there is a lot that we have to see at stage 2. We are moving in the right direction, but there is a lot to check out.

Section 115(3)(b) is on the modification of an order-making power in section 8 of the Roads (Scotland) Act 1984. The committee queried whether it is necessary to modify that order-making power given the power that will be conferred under section 115(5) to modify the definition of "excluded premises". Members will recall that we talked about motorway service stations.

It appears that the Executive is taking the long way round to do this, but that it is technically okay. Are members satisfied with the response?

This is where I considered pulling the covers over my head as I tried to read the brief, but I accept it.

We could argue with the Executive until the cows come home about the desirability of doing it one way or the other but that seems not to have any purpose. Given that the Executive has said that it is going to go a certain way and that there is nothing technically wrong with that, that is really an end to the matter.

So we can report that we are satisfied with the response.

Members indicated agreement.

Section 115(5) provides a power to modify the definition of "excluded premises". The Executive agrees that this Henry VIII power should be subject to the affirmative procedure and it will lodge an amendment at stage 2.

A definite commitment.

Absolutely. The issue was considered and decided.

We will report that to the lead committee.

Section 130 will be the same.

Yes, section 130 is exactly the same. Are there any further points on that?

Members indicated disagreement.

We move on to paragraph 8(4) of schedule 3 and paragraph 7(4) of schedule 4. Members will recall that these provide powers to modify the list of irresponsible drinks promotions. Stewart Maxwell made a point about recognising that the Executive has to be sufficiently flexible so that it can meet all eventualities. We have to decide whether we are happy with the reasons that the Executive has given for using the negative procedure.

I stick with the comments that I made last week and I agree that, in such circumstances, it is important that the Executive is able to move quickly to deal with any attempts to get around the legislation. It is appropriate that the Executive is able to clamp down on irresponsible promotions as quickly as possible so, in this case, I accept that the negative procedure is all right.

Are we agreed?

Members indicated agreement.

We will report to that effect.

Section 25(2) confers the power to amend schedule 3. The Executive has undertaken to amend the bill at stage 2 so that the power at section 25(2) to amend the mandatory conditions set out in schedule 3 will be subject to the affirmative procedure. Although the Executive does not mention the power at section 57(2) to modify the mandatory conditions applicable to an occasional licence, we presume that it will make the same change in respect of that power. Maybe we should ask.

We should ask; we should not presume.

Okay. We will ask and we will leave it to the lead committee to respond.

The committee sought comments from the Executive as to why, given that it has undertaken to continue its extensive consultation on the content of the subordinate legislation in the bill, it has not put a consultation requirement in the bill itself. Do we accept that there has been a huge amount of consultation on the legislation and that it is not necessary to include an express consultation requirement in the bill?

Members indicated agreement.