Legislative Consent Memorandum
Housing Corporation (Delegation) etc Bill
1. The draft motion, which will be lodged by the Minister for Communities, is: "That the Parliament agrees that the UK Parliament should consider those provisions of the Housing Corporation (Delegation) etc Bill, introduced in the House of Commons on 30 March 2006, which will legislate in devolved areas in respect of the past operation of the Housing Corporation in Scotland as outlined in LCM (6.1)."
Background
2. This memorandum has been lodged by Malcolm Chisholm, Minister for Communities, under Rule 9B.3.1a of the Parliament's standing orders. The Housing Corporation (Delegation) etc Bill was introduced at Westminster on 30 March 2006. The Bill can be found at:
http://www.publications.parliament.uk/pa/cm200506/cmbills/164/2006164.htm
3. The principal aim of the Bill is to correct an historical omission relating to the operation of the Housing Corporation. In essence, the legislation governing the role and functions of the Corporation, dating back to 1964, did not provide for decisions relating to the discharge of those functions to be delegated to anyone other than the Board of the Corporation. In the course of its existence up to the current date it has been the practice of the Corporation to delegate some decisions about its functions to officials. In the absence of an express provision allowing such delegation the vires of those decisions has now been called into question. The purpose of the Bill is to confer on the Corporation the power of delegation. The Bill will also act retrospectively to provide that past decisions of the Corporation should be treated as though the power of delegation existed at the time. The Bill also contains similar provisions in relation to Housing for Wales.
4. As discussed below, from 1989 Scottish Homes took over the functions of the Housing Corporation in Scotland and had the necessary powers of delegation from that point on. Since 2001 the functions have been undertaken by Scottish Ministers. The effect of the Bill on areas of devolved responsibility in Scotland relates to its retrospective effect pre-1989, as described in paragraphs 9 to 11 below.
5. The purpose of this Memorandum is to outline the effect of the Bill on areas that are subject to the consent of the Scottish Parliament, by virtue of the Sewel Convention, because they apply to Scotland and are for devolved purposes.
Consultation
6. Given the need for swift corrective action in England and Wales, along with the narrow technical nature of the legislation, the Office of the Deputy Prime Minister has consulted key relevant stakeholders about the specific provisions contained in the draft Bill. In Scotland, consultees have been the Scottish Federation of Housing Associations, the Chartered Institute of Housing and the Council of Mortgage Lenders in Scotland.
Financial Implications
7. It is not expected that the Bill will have financial implications in Scotland.
8. The following paragraphs describe the specific provisions for which the consent of the Scottish Parliament is sought and to provide background on their application in Scotland.
Provisions in the Bill for which Consent is sought
Clause 1 Power of Housing Corporation and Housing for Walesto delegate functions etc.
Policy Intent
9. To extend to Scotland the retrospective provision that the past exercise of the functions of the Housing Corporation are deemed to have been undertaken with the necessary power of delegation in place, and that any documents made by the Housing Corporation under its seal are to be taken as being validly executed.
Background
10. The Housing Corporation ceased to operate in Scotland in 1989 when its functions transferred to Scottish Homes by virtue of the Housing (Scotland) Act 1988. Those functions have in turn passed to Scottish Ministers by virtue of the Housing (Scotland) Act 2001. When Scottish Homes took over the functions of the Housing Corporation in Scotland in 1989 it had the necessary powers of delegation. Since the commencement of the Housing (Scotland) Act 2001 the issue is further beyond doubt now that the functions are with Scottish Ministers.
11. The situation in respect of decisions taken by the Housing Corporation in Scotland pre-1989 is less clear cut. There is a contingent risk that some pre-1989 decisions of the Housing Corporation in Scotland that might still be extant may have been taken by officials without the necessary delegated authority. For example, possible areas where this might be the case are: the original registration of Registered Social Landlords that date back to pre-1989 may have been undertaken by Housing Corporation officials; and statutory consents to social landlords that underpin long-term lending agreements. While the risk of this being the case is
probably quite low, it cannot entirely be ruled out. Including the retrospective provisions for Scotland in the Westminster legislation offers an opportunity to put the matter beyond doubt and prevent any anxiety forming amongst lenders.
Advantages of using this Bill
12. As far as Scotland is concerned, this Bill is essentially a technical matter designed to correct an historical anomaly. Using the Bill provides an opportunity to remove any latent risk which may exist. There are no Scottish Bills available within the required timescale that could be used to achieve the same objective.
SCOTTISH EXECUTIVE
April 2006