Affordable Housing – What is the argument about?
17 Nov 2008
There has been considerable attention in the press as to ways to resolve the current "stand-off" between the Select Committee on Welsh Affairs and the National Assembly for Wales in relation to the propose LCO which would extend the competence of the National Assembly for Wales to make a Measure in relation to social housing.
The Committee established by the National Assembly for Wales under the LCO process agreed to the drafting of the Order in the format presented to Parliament and for consideration by the Select Committee on Welsh Affairs.
However, whilst accepting the need for an LCO, the Welsh Affairs Committee queried the extent and scope of the Order, leading to a decision to reject the Order until further revision had been carried out. Amongst the recommendations of the Welsh Affairs Select Committee in considering the LCO were:-
- The full scope of the power to be transferred under a proposed LCO, rather than just the current policy intention, should be clearly expressed in the explanatory memorandum.
- Proposed Orders should be drafted so as to transfer only those powers which were required and for which a clear purpose has been established.
- The same considerations also apply to granting to the National Assembly for Wales the ability to abolish the Right to Buy/Right to Acquire. It was recommended that the proposed Order be revised so that this power was specifically excluded from its scope.
- The Select Committee recommended that the proposed Order should not proceed until the revisions suggested above had been made.
- The Committee expressed their concern that the proposed Orders drafted would enable the Welsh Assembly Government to suspend the Right to Buy/Right to Acquire across a whole local authority or across the whole of Wales. The Committee recommended that it be amended so as to apply only in areas of extreme housing pressure, better to reflect the underlying policy intention.
- The Assembly found that suspending the Right to Buy in specified areas would not, of itself, result in an increase in the supply of affordable housing. In applying for such a suspension, a local authority should be expected to demonstrate what it intended to do during the suspension to improve the long-term prospect of meeting housing needs in that area.
- Further revisions were suggested to ensure the proposed Order included, but did not go beyond the policy intention behind its introduction. The Committee considered that it would not unduly constrain the way in which the Assembly could legislate, as the Assembly could propose a subsequent further extension of its existing powers in the same way.
- Finally, the Committee recommended that the proposed Order be amended to incorporate the recommendations contained in its report so that it encapsulated but did not over-reach the policy justification upon which it was rightly based.
In effect, therefore, the Welsh Affairs Committee are proposing as a matter of principle that LCO’s should be limited in their scope and extent to cover only the situation identified as requiring immediate address identified in the relevant explanatory memorandum, rather than empowering the NAW to make further Measures in the future in a wider field.
The view of the National Assembly for
The standoff, therefore, means that there is a lack of consensus as to the extent to which the Assembly can extend its powers to make its own legislation without continuing reference to Parliament. Proponents of devolution argue that the whole intention of the complex process of making law by the system of LCO’s and Assembly Measures was that gradually the Assembly would develop and extend its powers to make law in its own right.
The current view of MPs appears to be that this right should be restrained so that it only relates to a right to make specific new laws in a strictly defined area and within the scope of policy it is intended to address at the time at which the application was made.
It remains to be seen where this argument will lead. However, at the very least it means that the debate as to the need to give the Assembly wider rights to make its own law has gained strength by the lack of certainty as to the agreed extent of the Assembly’s powers and by the very complex nature of the LCO structure.
Tessa Shellens
Consultant in Healthcare & Public Sector Law
17 November 2008
