Housing and Regeneration Bill

The Joint Committee on Human Rights is considering the compatibility of the Housing and

Regeneration Bill with the United Kingdom's human rights obligations.

The Committee would be grateful if you could provide a further explanation of the Government's view that the proposals in the Bill are compatible with the Convention rights guaranteed by the Human Rights Act 1998. In particular, we would be grateful for an explanation of the Government's views on a number of matters which we consider capable of raising significant human rights issues.

(1) Information Gathering, Storage and Sharing (Clauses 104, 106, 245)

Clause 106 provides broad powers for the regulator to disclose information to any "public authority" for any "purpose connected with the regulator's functions" or "connected with the authority's functions". The Bill defines public authority using the definition in the Human Rights Act: "a person having functions of a public nature". This information sharing gateway will apply whether or not the functions of a public nature are exercised in the UK. A reciprocal power will extend to the regulator to receive information from any "public authority" for any purpose connected with its functions. This appears to create a very broad information sharing gateway.

1. I would be grateful if you could explain (a) what type of information the Government considers the proposed regulator will be sharing under these provision, (b) whether that information will include personal information, and (c) what public authorities the Government consider will be sharing information with the regulator.

2. I would be grateful if you could provide a further explanation of the Government's view that these provisions comply with Article 8 ECHR.

Specifically:

(a) whether, in light of recent events involving data handling and HMRC, the Government considers that reliance on the application of the DPA 1998 and Section 6 HRA 1998 will be adequate to ensure that data shared under Clause 106 will be processed in a manner compatible with the individual right to respect for personal information (as protected by Article 8 ECHR), or whether more detailed safeguards are required on the face of the Bill;

(b) without a more specific definition of which "public authorities" the regulator may share information with or the purposes for which data is shared:

• why the Government is persuaded that, in practice, this provision will be exercised in a manner compatible with Article 8 ECHR; and
• why the Government is persuaded that these provisions are sufficiently precise to be considered as prescribed by law for the purposes of Article 8(2) ECHR?

Clause 245 of the Bill enables the Secretary of State in England or the Welsh Ministers to create a "register of sustainability certificates". Access to the register may be prescribed for public purposes or purposes of private undertakings or "other persons" (in effect, for any purpose).

3. Whether the Government considers that sustainability certificates or the register proposed by Clause 245 would contain personal information which would engage the right to respect for private life guaranteed by Article 8 ECHR?

4. If personal information will be contained, whether, in light of recent events involving data handling and HMRC, the Government considers that reliance on the application of the DPA 1998 and Section 6 HRA 1998 will be adequate to ensure that data shared under Clause 106 will be processed in a manner compatible with the individual right to respect for personal information (as protected by Article 8 ECHR), or whether more detailed safeguards are required on the face of the Bill?

5. If personal information will be contained, without further definition of (a) how the register will operate, (b) what information it will hold, (c) the circumstances in which information may be disclosed or (d) for what purposes:

• why the Government is persuaded that in practice this provision will be exercised in a manner compatible with Article 8 ECHR; and
• why the Government is persuaded that these provisions are sufficiently precise to be considered prescribed by law for the purposes of Article 8(2) ECHR?

(2) Registered Providers of Social Housing: Application of the HRA (Part 2)

Part 2 of the Bill makes provision for the replacement of the scheme of registered social landlords in England. Although this scheme will continue in Wales, the Bill makes provision for registration for "providers of social housing". In evidence to the Committee, published with its last report on the Meaning of Public Authority for the Purposes of the Human Rights Act, the Department for Communities and Local Government told the Committee that, in its view, registered social landlords should not be considered subject to the duty to act compatibly with Convention rights contained in Section 6 HRA 1998. They explained that (a) this would cause practical problems; (b) this would duplicate existing protection for their tenants unnecessarily and (c) it would cause providers to leave the market.[95]

6. Can you tell us whether the Government considers that registered providers of social housing will be performing any public functions for the purposes of the Human Rights Act 1998?

7. If so, can you explain how the Government proposes to ensure that Section 6, Human Rights Act 1998 will be treated by the courts as applying to registered providers of social housing when they are exercising those public functions, despite the judgment of the House of Lords in YL v Birmingham CC?

8. If not, can you explain how your view on the intended application of Section 6, HRA 1998 differs from the Ministry of Justice, and specifically from the former Lord Chancellor, Lord Falconer, and the current Minister of State for Human Rights, Michael Wills MP?

(3) Discrimination and access to social housing (Morris; Gabaj)

In its report on Monitoring Human Rights Judgments, the Committee commented on the Government's response to the declarations of incompatibility made in the cases of Morris and Gabaj.[96] In those cases, domestic courts declared that Section 185(4) of the Housing Act 1996 was incompatible with Articles 8 and 14 ECHR in so far as it requires local authorities to disregard dependants (in Morris, a child and in Gabaj, a pregnant wife), who are subject to immigration control, when considering whether an applicant has a priority need for housing assistance.

The Government intends to provide a remedy to this declaration of incompatibility and set out a proposal for amendment of Section 185(4) in response to correspondence with the Committee before its Report on Monitoring Human Rights Judgments. The Government had previously arrived at a solution which it considered would remove this incompatibility, but maintain the policy objective of "ensuring that people who do not have a right to be in the UK cannot confer entitlement to substantive housing assistance". The Committee expressed some concern in its Report on Monitoring Human Rights Judgments about the solution proposed by the Government.

In response to the Committee's Report, the Minister indicated that a remedial order would be brought forward to remedy this declaration of incompatibility early in this session. On 26 November 2007, the Committee asked Michael Wills MP about the proposed timetable for this remedial order. He told us that the Department of Communities and Local Government, in consultation with the Home Office, had not yet found a consensus on the best way to proceed. We understand that further work is now being done by your Department, working with the Home Office.

9. Can you confirm whether or not the Government intends to proceed with a remedial order during this session to meet the declarations of incompatibility which stand in relation to Section 185(4) of the Housing Act 1996? If it does intend to proceed by way of remedial order, can you please give your best estimate of when the draft order will be laid?

10. Can you explain why the Government's original preferred solution has not been put forward as one of the proposals in this Bill?

11. Can the Government explain whether there are any reasons, other than the maintenance of the Government's incompatible policy on foreign dependents and the provision of housing assistance, why this Bill should not be amended to repeal Section 185(4) of the Housing Act 1996?

I would be grateful for your response to these questions by 21 December 2007.

96   Sixteenth Report of Session 2006-07, Monitoring the Governments response to Court judgments finding breaches of Human Rights, paras 125 - 134.  Back