§ 6.30 p.m.
§ Lord Williams of Mostyn rose to move, That the draft order laid before the House on 26th November be approved [First Report from the Joint Committee].
§ The noble Lord said: My Lords, you will undoubtedly recall Section 140 of the Government of Wales Act 1998. By that section the functions of Tai Cymru, including its regulatory functions, were transferred to the Secretary of State on 1st November 1998. I think this ought to be a non-controversial order. It is made under powers conferred on the Secretary of State by the Act of 1998. It is designed for one purpose only, to close a loophole in the landlord and tenant legislation which arises by virtue of the transfer of the functions of Tai Cymru to the Secretary of State for Wales.
§ The order preserves the status and rights of tenants of residential buildings acquired or disposed of by the Secretary of State in the exercise of functions previously exercised by Tai Cymru. Specifically, it would allow the Secretary of State to offer assured or secure tenancies to housing association tenants if it proved necessary for him to do so by virtue of Part III of the Housing Associations Act 1985.
§ The Secretary of State's intention to lay an affirmative order to correct this was acknowledged in the Notes on Clauses prepared for the Lords stages of the Government of Wales Bill, in which a number of your Lordships took part. By virtue of current legislation the Secretary of State cannot offer secure or assured tenancies. This cures that difficulty. It amends a number of pieces of legislation to protect the rights of tenants who find their tenancies have been taken over by the Secretary of State in the exercise of his functions in relation to the regulation of registered social landlords.
§ I have to say that it is very unlikely that the Secretary of State would ever have to exercise these functions. When the functions were transferred to the Secretary of State from Tai Cymru, Tai Cymru held no tenancies. Indeed, at no time between its creation in 1989 and the 137 transfer of its functions to the Secretary of State on the 1st November 1998 did Tai Cymru ever hold tenancies under the powers in Part III of the Housing Associations Act 1985 or by virtue of any other powers. I repeat therefore that it is very unlikely that the Secretary of State would have to take over housing association tenancies or otherwise grant assured or secure tenancies, but we have to bear in mind possible interested tenants and we are simply providing for that eventuality, as we promised in the Notes on Clauses which I mentioned earlier. I beg to move.
§ Moved, That the draft order laid before the House on 26th November be approved [First Report from the Joint Committee.]—(Lord Williams of Mostyn.)
§ 6.33 p.m.
§ Lord Roberts of Conwy
My Lords, I am sure we are all grateful to the Minister for the clarity of his exposition of the order. It was indeed considered by the Third Standing Committee on Delegated Legislation in the other place on the 10th December, and generally agreed to be non-controversial; and so it is, within its own fairly narrow terms and in so far as any order which changes primary legislation can be non-controversial.
However, there are a few points I should like to raise and I feel justified in doing so since neither this House nor the other found much time or inclination to discuss the all-important subject of the future development of housing policy and housing action in Wales during the passage of the Government of Wales Act. I hasten to add that I am not seeking to initiate a general debate on housing: that would be totally inappropriate.
However, it would be helpful to us to know just how the substance of this order, which inserts the Secretary of State for Wales into the three Acts referred to, relates to the Government's plans for the devolvement of responsibility for housing to the national assembly of Wales. During the discussion of the order in the other place, the Parliamentary Under-Secretary of State, Mr. Jon Owen Jones, said that although it was unlikely that the Secretary of State would need to exercise the default powers available to him under the Housing Associations Act of 1985, they should be available to him, "or later the assembly", he added. Indeed his last words to the committee were to the effect that these responsibilities would be transferred to the assembly. I could not but notice that the Minister did not make much reference to the assembly. Can he confirm that it is the Government's firm intention to transfer these powers and responsibilities to the assembly in due course? Perhaps he could expand on the likely future path of housing policy evolvement.
I am sure the Minister will appreciate our concern as to how various parts of the housing jigsaw will fit together in Wales. Any light that he can throw on this, including the role of the local authorities, who also have their housing responsibilities, would be helpful and enable us to see this order in its broader context.
I am sure that the noble Lord will also appreciate the degree of concern about the timing and, indeed, the purpose of this order. As I understand it, the functions of Tai Cymru: Housing for Wales, were taken over by the 138 Secretary of State, as the Minister said, on the 1st November last year and this order comes into effect on the 15th January this year while the assembly comes into being in May. It seems slightly odd to be transferring powers and responsibilities to the Secretary of State—and that is, after all, what we are doing in spite of the somewhat euphemistic terms of the explanatory note at the end of the order—at this late stage. That is particularly so when Parliament has been told that Tai Cymru never required these powers because it had no housing association tenants throughout its existence and the Secretary of State is most unlikely to have any either, except conceivably in the event of a housing association's financial failure and the failure of the Welsh Office to make adequate arrangements for an alternative landlord.
We are not quite clear as to why we have to have this short-lived order. Of course, as the Minister said, there is a gap in legislative provision which we were told about in the Notes on Clauses for the Government of Wales Bill. We were told that that gap would be filled by an affirmative order; and that is the order before us. However, we have no illusions. This order is indeed a stop-gap to deal with a situation most unlikely to arise and is in any case to be superseded in a matter of months by another order transferring the powers and responsibilities of the Secretary of State to the assembly. Am I right in this or is a longer timescale anticipated for that transfer? That might indeed be the case if, for example, there were to be a wholesale reallocation of housing powers between the assembly and the local authorities requiring fresh primary legislation, but there is no reference to such legislation in the Queen's Speech. I am also aware that other measures, unspecified, might be laid before us, and so that comment of mine is purely speculative. Is the real explanation for this order possibly that powers cannot be transferred to the assembly without first passing through the Secretary of State for Wales?
To conclude, in so far as the order enables tenants of registered social landlords, including housing associations, to retain their security of tenure, and, where applicable, rent control should their homes be acquired by the Secretary of State, the order is very welcome. The Government have already decided to abandon Crown exemption from landlord and tenant legislation in this instance, and it is difficult to see how they could do otherwise without lessening the rights that tenants previously enjoyed. I very much hope that the Minister can answer in particular the point about the Government's future intentions with regard to transferring these powers and responsibilities to the national assembly of Wales.
§ Lord Thomas of Gresford
My Lords, the order has been described as non-controversial, and from these Benches I welcome it. It is pleasant to see that the provisions of the Government of Wales Act are being put into effect and that the necessary transfers are taking place.
The noble Lord, Lord Roberts of Conwy, asked about the machinery. As I understand it, this order is a staging post on the way to transferring responsibilities to the assembly which will itself determine housing policy within the constraints of the existing primary legislation that affects the remainder of England and Wales. It is an 139 interesting illustration of what I have always regarded as a fundamental flaw in the Government of Wales Act: that primary legislation will remain in the Westminster Parliament and cannot be altered or amended by the Welsh Assembly. That is unlike the position in Scotland.
It looks as though this order is the first of many such alterations to primary legislation which will have to take place at Westminster in order that the powers and functions can be properly transferred over to the assembly. However, even with that qualification, we welcome the order.
§ Lord Williams of Mostyn
My Lords, I am grateful to both noble Lords. I confirm to them, although they use different language, that it is indeed a staging post. It is entirely consistent with what I said on many occasions from this Dispatch Box: that during the interim various responsibilities were to be lodged with the Secretary of State because of the interim nature before May.
The noble Lord, Lord Roberts of Conwy, is quite right. These powers will transfer to the assembly. They will be part of a general transfer order. Subsequently—the noble Lord is right again—where there are other providers of housing for tenants they will determine their housing priorities within their own areas, whether those areas are geographic or specific to tenants.
One needs to remember that the order applies only to registered social landlords: that is, housing associations. There is no deep ploy to alter housing policy when the Assembly takes over. The Assembly will determine its own priorities and will decide whether or not it wants discussions with local authorities about the provision of housing in Wales.
The noble Lord, Lord Thomas, is right. Primary legislation will not be able to be amended by the Welsh Assembly. I cannot give a timescale on transfer. It depends entirely, as it should, on the friendly co-operative agreement between the Assembly and the Secretary of State. I think that I can put it fairly in this way. The Secretary of State is simply a custodian and a trustee of various powers and responsibilities which by virtue of the Government of Wales Act must be transferred to the new assembly, I think to the general agreement of most of your Lordships' House.
The reason that we need to take these powers for what is likely to be a relatively short period of time is that we cannot leave some tenants in the limbo of uncertainty. After all, the home that one occupies is so central to one's life that there should not be uncertainty. I hope that I have made it plain that these powers are unlikely to be used; and if there is any worry or uncertainty the powers are available to the Secretary of State in circumstances which are virtually impossible to arise. I hope that I have assisted your Lordships. I commend the Motion.
§ On Question, Motion agreed to.