It is certainly not a truism that legislation which is given the closest possible scrutiny is thereafter free from doubt – consider, for example, the Law of Property (Miscellaneous Provisions) Act 1989, which we always used to call the mysterious provisions Act because nobody was quite sure what its ambit was (as has subsequently proved to be the case). However, it is a pretty good rule of thumb that legislation which is rushed through without proper consideration or proper consultation is going to be laden with doubt – consider the rent deposit debacle on which my colleagues at NL have been moved to comment on endlessly. Further, when that legislation involves the pretty much wholesale re-thinking of the foundational understandings on which our subject is based – I wouldn’t say “cherished” nor unproblematic, but that’s not the point – that does not so much deserve as demand full debate and consultation.
Now, with that preface out of the way, let us turn to the Localism Bill. There is so much going on in this bill that its title is misleading. It’s not particularly or coherently about “localism”, but, at a much more fundamental level, the housing provisions are about changing the landscape of “the social” in social housing as well as tinkering around the edges (see my comments on the so-called “democratic filter” before a complaint can reach the ombudsman – it’s fair to say that I’m up in arms about that). If it was about “localism” proper, then that would return us to a pre-1977 free-for-all, which (frankly) few people in power want. Then there are what can only be described as the meanderings of the Housing Minister, Grant Shapps (who, if my sources are right, is not the brightest smartie in the box). Let me pick two such meanderings: he goes to Harrogate and announces that private rented properties will have to meet minimum standards before being used for homeless households, an announcement which pretty much unpicks the coalition’s policy to private renting and makes it seem, at best, incoherent; second, he says at one point that the minimum period for the flexible tenure should be five years, goes back on that, gets criticised for going back on that (not unreasonably), and then re-issues a draft direction (links to Inside Housing story) saying that they should be for five years and the minimum period of two years should only be used in exceptional circumstances.
What are we to make of all this? Not being in charitable mood this morning for various reasons, my view is that the coalition’s housing policy is pretty woefully thought-through; even that suggestion of thought may be too charitable. But, at least, you would have thought that they would take account of local views as well as the views of experts. As regards the former, we have previously commented on the frankly outrageous (told you I’m not in charitable mood) fact that the consultation period on the document, Local Decisions: A Fairer Future for Social Housing, ended on the day of the second reading of the Bill in Parliament (17.01.11) and the summary of the responses (leading, of course, to no change) was not published until 28.02.11 (see our respective discussions here and here).
As regards the latter, I’m not claiming for myself expertise in these matters, but the House of Lords contains too many experts on housing and draftspersonship to mention. They are also a body which is responsible for the scrutiny of proposed legislation. And they do it pretty well most of the time. Yes, they can be a thorn in the side of government (as Thatcher would tell you) but they also moderate and make good some pretty frightful drafting (as I remember their approach to the then Housing Bill 1996). Much of their best moderation (and, indeed, in the Commons) comes at Committee stage, when the house gets down to the nitty-gritty of the detail.
Now we come to the Localism Bill. On 20.07.11, the HL committee stage of the Bill was completed. In a matter of a few hours, debate was conducted on a range of fairly fundamental proposed amendments, from planning (including sites for Gypsies and Travellers) to the issues around social housing. The debate was effectively guillotined, and amendments not discussed will be discussed at Report stage of the Bill (along with a raft of other amendments, no doubt, so that will be rushed as well); but the essential point is this: provisions and amendments which will have a huge effect on vulnerable and other households were dispatched in a matter of a few hours. It’s pretty difficult to disagree with the Law Society press release that “It is impossible for the Lords to effectively carry out their function of scrutiny if they are forced to consider 40% of an enormous Bill in less than five hours. This Bill includes some of the most radical social housing reforms in recent memory. The government has avoided scrutiny of them through regrettable haste.” It all now depends on Report stage in the Lords and the amount of time the coalition will set aside from that, given the considerable amount of other business.
The government moved a huge number of amendments at this late stage during the parliamentary process to tidy up the Bill, including an interesting (well, to nerds like me) amendment to section 52, LPA 1925 excluding flexible tenancies from the requirement for a deed and from land registration requirements and changes to succession to shared ownership properties. If they are doing this at such a late stage (I appreciate that it has been common practice for governments to do this, but look at the resulting quality of our legislation), it might be suspected not unreasonably that there will be some significant glitches (perhaps even worthy of the Prescription Act 1832).
Even Baroness Hanham, the DCLG spokesperson in the Lords, began her response to the grouped homelessness amendments by noting that “this is clearly a debate that needs a lot more time than we have got tonight” (col 1464). Such was the speed with which the HL dealt with the amendments that the social housing ones were grouped together, so that the proposers spoke to most of the amendments before the government responded. Reading the debate, the overwhelming feeling is that it was extremely high quality. And they raised absolutely crucial issues – the length of the minimum fixed term, the scope of the review provisions, protections for vulnerable homeless persons provided with private rented accommodation, the ombudsman filter, etc. I was particularly struck by a comment from Lord Newton about the “coherence” of the Localism Bill in the context of the coalition’s legislative programme:
I did on one occasion incur some possible unpopularity on my Benches by making the point that we have at least three-if not more-Bills on the go at the moment: the Welfare Reform Bill, the Legal Aid, Sentencing and Punishment of Offenders Bill, and this one, all of which impact on various disadvantaged groups, including disabled people. It is far from clear that there has been a joined-up approach to these bits of legislation. (col 1463)
Lord Newton (Tony Newton) is not one of my favourite politicians, but he has a point. Let’s hope that the coalition sees some sense in the recess. I doubt it, though.