Housing and Regeneration Bill

My Lords, I am very sorry to disappoint the noble Earl. Would that it had been as relatively simple to deal with this matter as it was to satisfy my noble friend. This is an important amendment that raises very complex issues. I am glad that we can have another go at it because the noble Earl has raised a couple of additional points that I am happy to address in my response. The amendment makes the ownership or management of social housing a public function for the purposes of Section 6 of the Human Rights Act, as proposed by the JCHR. As I said in Committee, we welcome the Joint Committee’s interest in this important matter, although we cannot agree with its recommendation. I hope I can persuasively explain why. I made it clear that there is no logical tradition that suggests that the provision of accommodation at below the market rate is by nature a public function. In Committee, I referred to the long history of social housing provided by the charitable and commercial sectors, which are largely privately funded. I think the noble Earl sort of agreed with me that social housing is not a public service that has recently been privatised, but is a regulated voluntary activity in which local authorities have become involved. I also made it clear that we were very concerned by the potential consequences of the amendment because of the risks and costs on the RSL sector, which includes many very small charitable organisations—more than 1,000 of them—that could face the possibility of more legal challenges in their day-to-day decisions. The Government do not subsidise the management of social housing by RSLs so the costs, which the JCHR reasonably did not assess, may need to be met by higher rents. I cannot impose extra burdens on the sector without full and proper consideration. The bigger risk is that reclassification of social housing as public housing would mean that the RSLs’ ability to borrow to provide new social homes and refurbish stock would be very constrained and £35 billion would be added to the public balance sheet. That is money that funds affordable homes for ordinary people. No matter how low that risk would be, the consequences for our ability as a country to provide the affordable homes so badly needed mean that we cannot take the chance that that might happen. The noble Earl mentioned the recent case of Weaver v London & Quadrant. As he knows, the opinion of the presiding judge in the case was that social housing provision was a public function for the purposes of the Human Rights Act. Obviously, we are looking at that decision and its implications carefully. I want to make just two comments on the case. First, the judgment appears to have been finely balanced. The judgment of Lord Justice Richards states: "““I have not found this an altogether easy issue to resolve. The difficulty of drawing the dividing line between public and private functions in the context of s.6 of the Human Rights Act 1998 is illustrated by the differences of judicial view in previous cases””." That is absolutely right. Secondly, I understand that the housing association involved in the case may appeal. As I said in Committee, we are of the view that social housing provision is not and should not be considered a public function, whether for human rights or any other purposes, but we recognise that there may well be different opinions on the issue and we feel that we need a careful consideration of the arguments raised in the case. The noble Earl asked: will I sort it out? As part of the Government's response in the YL case, my honourable friend the Minister for Human Rights intends to undertake a consultation on the scope of the Human Rights Act. We are still fervently of the view that that is the best possible route for taking forward the broader question of what should and should not be considered subject to the Human Rights Act. That is where we rest our case at the moment. My right honourable friend Mr Straw actually said that if you are a private authority carrying out a public function, that function is covered by the HRA. I have just said that that is right. He also mentioned housing associations as bodies which, he speculates, might do things including some public function. He said nothing about what functions they do that are public; he certainly did not say that social housing management is a public function. It is a complex area; it is very easy to read things into a statement that were not intended. It was some years ago that my right honourable friend made that point; I cannot believe that he envisaged that the Act would turn private functions into public ones, as the noble Earl proposes in his amendment. Perhaps he meant that sometimes housing associations take on other public functions; for example, Group 4 in providing prison services, or contracting with the local authority. In any case, the Government's view in 2000, when Mr Straw made that statement, was that social housing provision was not a public function. Our view is the same now. I am sorry to disappoint the noble Earl, but we have had a serious engagement in two stages and I hope that he will consent to withdraw his amendment.