When an RSL fails to perform satisfactorily, there is a range of powers available to the Welsh Ministers. The current threshold for taking action is generally where there has been mismanagement or misconduct. We have had to make this threshold more specific as it was one of the issues of control identified by the ONS. Therefore, the Bill amends the threshold to a failure

'to comply with a requirement imposed by or under an enactment.'

This threshold includes a failure to comply with the performance standards imposed under section 33A of the Housing Act 1996 and published in the regulatory framework.

David Melding, speaking in the Stage 2 debate, quoted UK Finance, which stated in their submission:

'we suggest that consideration be given to ensuring in the legislation that the "failure to comply with a requirement imposed by or under an enactment" is clearly defined as including a failure in relation to the regulatory framework.'

UK Finance have, however, since confirmed to my officials that, having considered my evidence to committee, the performance standards issued under section 33A are requirements 'imposed under an enactment'. They are content there is no need for this to be restated on the face of the Bill. I again confirm that standards issued under section 33A of the Housing Act 1996 impose requirements on RSLs. They are clearly requirements imposed under an enactment and therefore already have 'the significant statutory weight' that David Melding called for at Stage 2 during the scrutiny debate.

I can also confirm that I have reviewed the explanatory notes following Stage 2, as I committed to do, and that they are clear that standards issued under section 33A are a requirement under an enactment. Therefore, I do not consider that there is any ambiguity about whether the performance standards are requirements under an enactment, and, if they were breached, intervention powers would be available to the Welsh Ministers. 

If we were to include a statement in the Bill that standards issued under section 33A are 'requirements imposed under an enactment', there is a risk that this would cast doubt on the interpretation of other requirements imposed by or under enactments that made no similar statement, and this can have unintended adverse consequences. For example, if there was express mention of the performance standards but not directions, were directions subsequently to be issued, people might question whether or not they were a requirement imposed by or under an enactment. I do not support any amendments that may cause any doubt as to their interpretation or the interpretation of provisions in this or any other legislation. 

Amendments 6, 11 and 12 all refer to the regulatory framework for housing associations registered in Wales and its associated performance standards. Performance standards are standards that are issued in accordance with section 33A of the Housing Act 1996. The phrase 'performance standards' is the colloquial term for such standards. The standards form a central part of the regulatory framework, however the regulatory framework itself does not have a statutory basis. The framework sets out the process for how regulatory judgments that reflect the regulator's assessment of an RSL's compliance with the standards are reached.

As the amendments, as drafted, refer to documents that do not have a statutory basis and do not correctly identify section 33A of the Housing Act 1996, at the moment these amendments would not operate effectively, even if they were to be accepted. In any event, they are unnecessary, as performance standards, under section 33A, are already caught by the definition of a requirement imposed by or under an enactment. To clarify that position further is unnecessary and might cast doubt on the interpretation of other provisions where such clarity is not provided. So, I would ask Members to reject the amendments.