Renting Homes: The Final Report - Law Commission

1.70 The position would be substantially changed if the current Government of Wales
Bill receives Royal assent in its current form. The current Bill makes provision
(among other things) for legislative competence to be extended to the National
Assembly for Wales on a case by case basis. Schedule 5 to the Bill sets out a
series of “fields” covering the areas of policy devolved to the Assembly. Housing
is one of those fields. It is envisaged that under each field, “matters” will be
added. Once a matter is added, the Assembly will be empowered to make
legislation (in the form of “Assembly Measures”) in relation to the matter. The Bill
itself only adds matters to the field entitled ”National Assembly for Wales”, which
concern various areas internal or incidental to the functioning of the Assembly.
Matters related to substantive policy areas will be added in the future. Matters
can be added by primary legislation, or by an order in council. Before such an
order can be made, a draft of it must be approved by, first, the Assembly, and
then both Houses of Parliament.
1.71 Our draft Bill is drafted on the basis of the law as it is now. However, it would be
wrong to ignore the proposals in the Government of Wales Bill. Apart from
broader considerations, our recommendation to give greater powers to the
National Assembly than to the Secretary of State would no longer be appropriate
– the Government of Wales Bill also provides a statutory underpinning to the split
between a legislative Assembly and an executive Welsh Assembly Government,
and gives secondary legislative powers to the executive. We felt it justified to give
greater powers to the Welsh institutions when that power was exercised by the
democratically elected Assembly. That would not be the case if secondary
legislative power lay with the Welsh Ministers, who would be in a similar position
in relation to the Assembly as the Secretary of State is to the UK Parliament.
1.72 We must, therefore, consider the issue of legislative competence for the
Assembly. First, we recognise that there are significant differences in housing
between England and Wales. We pointed to some of these in the first Renting
Homes Consultation Paper. 37 The Welsh Assembly Government and the National
Assembly are of course in a better position than the UK Government to take
account of these in relation to Wales when implementing policy.
1.73 More importantly, devolution to Wales is designed to give people in Wales the
democratic and Governmental structures necessary to come to their own
conclusions on the policy choices facing them in the devolved areas. Even if
objective conditions are identical in Wales and England, the logic of devolution is
that the Welsh political institutions may choose a different path to that chosen in
England.
1.74 Housing is a devolved field, and housing tenure policy sits at the centre of that
field. We have never seen Rented Homes as providing a once and for all solution
to all problems. Rather, it is designed to give policy makers the appropriate tools
with which to implement policy changes that have an impact on tenure law,
without each time having to interfere with the underlying legal structures involved.
That in the future housing policy makers in Wales may take different paths from
those in England is inherent in the idea of devolution.
37 See Renting Homes 1: Status and Security (CP 162) April 2002, paras 1.74 to 1.77
http://www.lawcom.gov.uk/docs/cp162.pdf.
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