Affordable housing LCO illegal?

According to the Joint Committee on Statutory Instruments (JCSI), a cross party group of MPs and Lords, the recently agreed affordable housing LCO may not be intra vires or in other words, it may be illegal. Their report says that there is no provision in the Government of Wales Act for decisions to be made jointly between Welsh Ministers and the Secretary of State for Wales. After all, Welsh Ministers are not accountable to the UK Parliament.

I've blogged about the problems with this LCO before. Betsan Powys reports the responses to the JCSI report:

"Jointly the Wales Office and Welsh Assembly Government put it like this:

"Both the UK Government and the Welsh Assembly Government have noted the conclusions of the JCSI, but we are confident that the Order we have agreed, and which was approved in the National Assembly for Wales, is legal under the Government of Wales Act. We therefore intend to proceed with the Order."

Or as the Counsel General, Carwyn Jones put it in the chamber: "the JCSI doesn't have a veto of any kind over the way in which an LCO does proceed in the future. Certainly, we are confident that there is no difficulty in terms of the vires of the LCO with regard to any future devolution of power."

LCO Process Doesn't Work

Former Plaid AM Cynog Dafis says the Assembly's LCO system is not working and the devolution system is breaking down. He says "We were led to believe that the Assembly’s requests for legislative powers would only be turned down in circumstances that were very exceptional." That is turning out not to be the case. The affordable housing LCO is used as an example by Elfyn Llwyd who argues that some MPs on the Welsh Affairs Select Committee see their role as a de facto second chamber for the Assembly, holding a gun to the Assembly's head.

The Assembly debate on the Affordable Housing LCO which took place on January 20th can be read in full here I chaired the committee which scrutinised the LCO. My contribution supports the views of Elfyn and Cynog. We have to get rid of this system, soon.

Leanne Wood: I would like to start my contribution to this debate by thanking all of the organisations and individuals who took the time to give evidence, both written and oral, to our committee. This evidence proved invaluable and provided the basis for the committee’s conclusions and recommendations, which we published in our report last April. The majority of the committee agreed with the principle of the Order, although one member—and I am sure that it will not be too difficult for you to work out who after the last contribution—was opposed to the Assembly being given the powers to suspend the right to buy.

I would like to take Members back to the beginning of this process. The reason that the Government wanted these powers was to deal with the chronic housing shortage that we have in Wales, a shortage that is at risk of worsening under the current economic crisis. This Government is committed to tackling this housing shortage and has stated that affordable housing is a key political priority. We all recognise the need for more social housing. Our social housing stock has been decimated since the Tories introduced the right to buy in the 1980s. I accept Mark Isherwood’s argument to some extent, because some witnesses did say that the proposed Order had a limited potential to impact on the current shortage of affordable housing. However, this Order will enable the Government to protect the new homes that will be built over the course of this Assembly term.

The committee concluded that redrafting the proposed Order more broadly would have provided the Assembly Government with maximum flexibility in the area of affordable housing. For example, following the completion of work on its new housing-related strategies, a broader LCO would have provided the Assembly with greater scope to legislate by tackling affordable housing issues. In our view, drafting the proposed Order more broadly would have negated the need to seek further legislative powers from the UK Parliament in the future. Having to seek further powers in this way could restrict the Welsh Assembly Government’s ability to act quickly in tackling affordable housing issues as they arise and to provide solutions that meet the needs of our communities.

Plaid Cymru, the Labour Party and the Welsh Liberal Democrats all included commitments in their 2007 manifestos to suspend the right to buy in areas of high housing pressure, and after almost two years of trying to negotiate this costly and cumbersome system, which is outlined in the Government of Wales Act 2006, the Deputy Minister for Housing has finally managed to obtain the powers that she asked for. Of course, what has been finally agreed is a compromise, and I am not happy that the Secretary of State has any kind of veto on any laws that should be determined by this National Assembly. Powers devolved to this Assembly should be used by the Assembly in whatever way it chooses.

I do not accept the arguments made by Members of Parliament for their intervention on this matter. I accept that the Tories may have ideological problems, after all the right to buy was one of their flagship policies. However, I do not accept that the Labour MPs had the same ideological objections, particularly when some of those Labour MPs opposed the right-to-buy legislation when it was being introduced in the 1980s. Therefore, their manoeuvrings must have been for other reasons, and my conclusion is that those reasons are anti-devolutionist. As far as I am concerned, this unhelpful intervention from the MPs provides further evidence that this LCO system does not work and is not sustainable in the long term.

There has been widespread agreement on the need to address the right to buy, yet it has taken two years for us to get to this stage. It has been difficult, despite the fact that there is a Labour-Plaid coalition Government here and a Labour Government in London. My major concern with this system is that the Tories opposed us having any powers on this issue at all, so imagine the difficulties that we would face with getting these powers with a Tory Government in Westminster.

This process has shown clearly why we need a proper Parliament, so that this costly process can be avoided in the future, and so that the Assembly can legislate freely without MPs being able to decide what we can and cannot do with powers that have been devolved to Wales.

In conclusion, I thank the Deputy Minister for the way in which she has co-operated openly with the committee, and for giving due consideration to our report. It is disappointing for us as a committee that it has not been possible to either broaden the scope of the Order, as recommended by the committee, or to introduce greater flexibility in the scope of law-making powers for the National Assembly, but I am grateful to committee members for all their hard work.

MPs trying to undermine devolution

Affordable housing has been a major problem for many years in Wales, which is why the One Wales Plaid-Labour government sees tackling the shortage as a priority. Our programme commits us to building 6,500 new affordable homes during the course of this Assembly term. In order to protect those houses in the long-term, the government is seeking the power through a Legislative Competence Order (LCO) to suspend the right of council tenants to buy their homes in areas where there is an acute shortage of housing. The aim of this policy is to keep more social housing available for people who need it, and to alleviate homelessness.

I chaired the Assembly Committee which scrutinised the proposed LCO. After our work was done, MPs in London then scrutinised it. This week we have heard the news that some Labour and Tory MPs on the Welsh Affairs Select Committee have gone against the spirit of devolution by blocking the progress of our LCO at Westminster. They are seeking to limit the LCO substantially. This exampel shows how inadequate the current situation is where all our law-making is subject to a veto at Westminster. I raised this in the Senedd yesterday with the Counsel-General, Carwyn Jones.

I said: "It is very sad that the LCO system isn’t working. This is not the way that was envisaged by the White Paper or by the guidance. It shows that it’s now time for a much more robust devolution settlement."

We need Welsh MPs to make their position clear on this. I have challenged my local MP Chris Bryant to make it clear whether he supports the Labour-Plaid administration's position in Cardiff, or the New Labour-Tory consensus on the Welsh Affairs Select Committee at Westminster. I'll let you know if I get a response.