Renters Rights (or when renting discrimination becomes a constitutional issue)

Back in September 2024, Jayne Bryan (the Cabinet Secretary for Housing) laid a Legislative Consent Memorandum before the Senedd seeking consent for certain provisions of the Westminster government’s Renters’ Rights Bill which will then become law in Wales.  The purpose of an LCM, in essence, is to contract out legislation in a devolved area to the Westminster Parliament.  It enables the Senedd to provide its agreement to what is in the UK Bill but subject to an expedited scrutiny process, in this case by the Local Government and Housing Committee and the Legislation, Justice and Constitution Committee.  Those provisions then become law in Wales.

There are a group of provisions in the Renters’ Rights Bill around discrimination, with some alterations to rules affecting housing complaints, HMOs and improvement notices, which the WG wishes to implement in Wales.  In this blog, I am going to set out these provisions first, and then set out the constitutional questions which have arisen.  Both are really quite important, although right now my interest lies more in the latter where this blog focuses.  That is because I really admire the way the WG have gone about their housing legislation.  Rather than a Westminster type command and control approach to legislation/policy-making, my sense is that housing legislation is genuinely co-produced and balances are properly struck in Wales (although sensible people might disagree with where those balances lie, at least there has been an attempt at balance).

The discrimination provisions (which are in cll42-3 of the Renters’ Rights Bill)  are made by way of amendment to the Renting Homes (Fees etc) Act (the title of which is also amended by the Renters’ Rights Bill).  They add new clauses 8A-8H which seek to ban restrictions which deny access to an occupation contract to somebody in receipt of benefits or where a child will live or visit (there is a lengthy definition section which sets out what these mean).  There are defences (which will be interesting if used) as well as restrictions on the binding effect of mortgage provisions which prohibit those people from being contract holders.  These provisions can be extended to other groups by WG regulation where two conditions are satisfied: there is a “discriminatory rental practice” and, as a result, “the victims of that practice are significantly less likely to obtain the grant, renewal or continuance of occupation contracts than other people”.  The improvement notice and HMO provisions enable the local authority to serve such notices on a wider range of people who are responsible for taking action, as well as providing defences for such person; they also widen the scope of the offence of not licensing an HMO.

The minor constitutional issue concerns whether consent is required for all the provisions – there is some disagreement between the WG and the MLUHC (see [31]-[33]), which is kind of fun.

But, there has been a bit of a kerfuffle over whether an LCM is the right mechanism for this purpose.  There was an exchange of letters between the Cabinet Secretary and the Housing Committee, and a rather awkward appearance of the Cabinet Secretary before the Committee on 18th November (which can be viewed here; transcript here).  At issue is the (laudable) attempt by the WG and Senedd to have, if you like, a codified housing law for Wales.  The Minister’s argument is that an LCM is an expedited process which enables a discrete policy aim to be enacted more quickly than would otherwise have been the case.  I don’t think, actually, that this impacts too much on where people might look for housing law in Wales – the clauses in the Renters’ Rights Bill amend Welsh legislation, so they will take effect in those Acts.  The more important constitutional point is about process and transparency

The Committee have noted various issues: first, it has taken the Westminster government some time and different iterations to get to the position it is now in regarding the renters’ rights, so it might have been quicker to do this by legislation anyway.  Secondly, the reverse devolution to the Westminster government raises issues about difference in Wales post-Housing (Wales) Act and Renting Homes.  This feels like a mess – legislation originally designed for England, to respond to English issues, is crossing the border to respond to issues which may not have any impact, or even been on the agenda, in Wales.  Take for example the position on enforcement powers – breaches in England can be met by a civil penalty, but in Wales are subject to prosecution.  The committee asks whether the LCM means that the WG is maintaining its position on criminal enforcement (which, as I’ve posted on before, I think is wrong-headed).  They also noted, not unreasonably again, the discrimination provisions being implemented by this LCM do not extend to pets (which has been an issue which taken up an inordinate amount of space in reports).

The Cabinet Secretary’s response doubles down on the expediency rationale justifying the LCM, and contains technical responses.  It maintains the line on criminal enforcement.  I particularly liked the admission that: “We do not have data on current occupation contracts which may contain discriminatory clauses” (although before the Committee, the Cabinet Secretary said, “there’s nothing between Wales, Scotland and England in terms of the issues.  We know those discriminatory practices happen. … I don’t think there’s a distinct Welsh element to this” (Transcript, para 101; video 13.40).  In one sense, this is obvious (particularly given the rubbish nature of the existing data); but in another sense, one can therefore ask the question whether there is actually a problem in Wales and the basis for the Cabinet Secretary’s knowledge.  At least in England, we know from Shelter and others that there have been cases with which they have successfully dealt where there has been unlawful discrimination against those in receipt of social security (see, for example, here).  But, in the absence of data, what is the point in disturbing the important process of codification of housing law in Wales for something which may not affect anyone?  Put another way, why disturb the codification process, which is seeking to simplify Welsh housing law, when there is no good reason for so doing?  This is why transparency and consultation is important – to generate and question “knowledge”.

All the members of the Committee were pretty clear that “this isn’t the way we should be legislating“.  They have a point.  The WG has the opportunity to influence the way Westminster frames the Renters Rights Bill, but that is not subject to the scrutiny of the Senedd, which leads to transparency issues.  The Cabinet Secretary’s retort that there would be opportunities for discussion of statutory instruments is not the best answer, given how limited those debates can be.  It is fair to say, as she did, that there is legislative space for two important Bills next term (Building safety and homelessness), which are, no doubt, the focus of the WG.  But, if these provisions are a discrete policy aim of the WG, then they might have been given airspace by them through the usual processes.

It appears that the conclusion at the moment is a bit of an impasse.  There was an original schedule for report set for 29th November 2024, but this has now been put back to 10th January 2025 (which will make for a fun blog).