Subordinate Legislation Committee, 24 Sep 2002

Meeting date: Tuesday, September 24, 2002

Official Report 109KB pdf

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Executive Responses

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Housing (Scotland) Act 2001 <br />(Registered Social Landlords) Order 2002 (SSI 2002/411)

We move to consider the Executive's responses to our questions.

There has been a failure to comply with the notification requirement in the enabling act. Does that make the order ultra vires?

That is a possibility. We should refer the order to the lead committee, pointing out our original question and the Executive's answer. The Executive admits that the bodies named in the order were not notified in accordance with the requirements. It seems to be game, set and match, but we are not going to press the advantage. We will only draw the order to the attention of the lead committee. Just to keep things nice and tidy, however, I am advised there is a way to get round the problem. We can point out that alternative way to the lead committee. Is that acceptable?

Members indicated agreement.

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Homeless Persons Interim Accommodation (Scotland) Regulations 2002 (SSI 2002/412)

There was a question of whether correct drafting practice was applied to the regulations. Should we draw the regulations to the attention of the lead committee and the Parliament?

The Executive accepted that it did not need to define the terms, but felt that it might be helpful to do so. We can draw the regulations to the lead committee's attention without making a meal of it.

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Homeless Persons Advice and Assistance (Scotland) Regulations 2002 (SSI 2002/414)

When we discussed the regulations before, we talked about whether the way in which they were worded implied that the legal advice that could be had by an applicant could apply to more than their homelessness needs. The Executive sensibly explained to us that homelessness might well have a legal dimension, such as housing or other debts, and a landlord may have obtained or be obtaining a decree of eviction in respect of that homeless applicant. The Executive is to be thanked for its explanation.

Perhaps other folk on the committee disagree with me and think that that was not an adequate response. What did anybody else think?

It was entirely reasonable and the Executive is to be commended, as you said.

I did not say that exactly, did I?

It had the same import.

All that I said was that the Executive should be thanked.

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Housing (Scotland) Act 2001 <br />(Registration of Tenant Organisations) Order 2002 (SSI 2002/416)

We raised many points on the order. First, we asked the Executive to explain the vires for article 6, which authorises the landlord to remove a body from the register without prior application by that body. The Executive considers that the vires provided by section 53(4) of the Housing (Scotland) Act 2001 are wide enough to empower the provision in article 6. Although section 53(4)(b) refers to the procedure to be followed in relation to applications for removal, it does not provide that those applications need to be made by the body itself. As a result, the Executive does not think that section 53(4) only contemplates removal where there is a prior application by that body. For example, that will not be possible where the body ceases to exist.

It is not difficult to envisage circumstances in which a tenants' organisation winds itself up or is taken over by the Trots and falls into desuetude. Convener, you should be aware of such circumstances.

I am familiar with them. How many Trots do I know again?

More important, some tenants' organisations have suffered tremendous fatigue and have simply disappeared. I am reasonably content with the explanation if it refers to such a situation. I could foresee circumstances in which some housekeeping might need to be carried out.

We are talking about the practicality of voluntary or community organisations. One of your colleagues has found that out to his cost.

Of that, more anon.

However, does understanding the human dimension to the dilemma mean that we agree that the subordinate legislation itself is correct?

Given what the Executive has said about section 53(4), I think that its explanation of article 6 is reasonable enough. Any one of us would be able to envisage circumstances in which the body that made the application does not exist, has become defunct or has fallen into desuetude.

These things have happened.

Indeed.

And they might well happen again, because people are slow to learn.

We will draw the matter to the lead committee's attention, because it concerns the interface between policy and subordinate legislation. We are considering the matter from a policy perspective, which we should not be doing.

We also pointed out that article 6(1) gives the landlord the power to act of its own accord without application being made by anyone. However, the Housing (Scotland) Act 2001 does not appear to contain any authority for such a power. We will also draw that to the lead committee's attention.

At several points, the order refers to applications and notices being "in writing", and the committee asked whether that included electronic communications. Apparently, it does.

We could make that clear to the lead committee.

Right.

Article 5(3) of the order refers to the

"criteria referred to in article 3"

which, in turn, refers to the criteria in part I of the schedule. However, article 6(1) refers to the

"criteria in Part II of the Schedule".

The committee asked whether that approach was inconsistent. Although the Executive acknowledges that there might be an inconsistency, it says that the provision is still quite clear and that no one should be misled by it. However, this is another case where we have had to point out that an instrument might confuse people who read it. We would prefer the Executive to avoid such a practice if it can.

Why does it not just do the obvious thing?

The committee also requested clarification about what will constitute "service" for the purposes of article 7. The Executive considers that service could be effected by delivery by post or hand to the address of the organisation. We have received additional information about legal precedents in relation to this matter. For example, in the case of Clyde Shopping Hall v Canning in 1990, the court held that the phrase "by notice in writing served on that person" meant that service by post was not competent and that personal service was required. I do not think that, in this case, the Executive wants to involve sheriff officers in serving notices.

The order could be better drafted to make things clearer. Perhaps we should let the lead committee know.

Okay.

I am not satisfied that Clyde Shopping Hall v Canning or Keane v Jackson—which is the other case cited in the legal briefing—can be characterised as precedents.

That is just because you are an expert in your field.

It is not for that reason. I do not give legal advice.

Oh, go on. Just this once.

I do not think that they can be characterised as precedents because of the nature of the decisions.

However, it all seems remarkably consistent as far as the casework is concerned.

That is a very brave thing to say.

I can say it because I am not a lawyer.

However, we are agreed that there is dubiety about the serving of notices.

I am all for seeking some clarity on that point.

Okay.

Our final questions focused on matters of grammar or syntax. We asked the Executive to explain why, if paragraph 1 of part II of the schedule is meant to be a criterion for removal, it refers to a body "removed" from the register. The Executive has agreed that the criterion would have been more clearly stated by putting the words "to be" before "removed". As I say, nitpickers are us.

"To be" or not "to be", convener.

Our report will make it clear that the Executive has graciously acknowledged our point.