John
Healey: The hon. Gentleman has long experience in local
government, and he will know that, generally, local authorities have
fee-charging powers to cover costs, and they are limited to
those.
The
clause is important, even if it is towards the end of the Bill, because
it is important to make sure that in two-tier areas, the levying of any
potential BRS by a top-tier authority is efficient and
effective. Question
put and agreed
to. Clause
25 accordingly ordered to stand part of the
Bill.
Clause
26Guidance Question
proposed, That the clause stand part of the
Bill.
John
Healey: The guidance, which is currently undergoing a
12-week consultation in its draft form, is an important part of
explaining to local authorities, businesses and other groups with an
interest in the projects that a BRS may support how the process of
reaching a decision to introduce a BRS should work. The clause requires
the levying authorities to have regard to any guidance that the
Secretary of State or Welsh Ministers may issue. In other words, it
gives statutory force—the bite that we may need—to any
guidance, especially on which projects may be regarded as appropriate
to be funded by a BRS and on how the levying authority will demonstrate
that it would not have incurred the expenditure had it not introduced a
BRS. It
is important that a basic level of content is included in the
prospectus, which will provide the grounding for a BRS. We expect the
documents not only to be rigorous in their assessment of a project, but
to be understood easily by the wider community, other interest groups
and local residents. The prospectus needs to be of a high standard,
setting out the pros and cons of a project for everyone. Our guidance
is an important part of that, and the Committee’s deliberations
have made a useful contribution to developing any further thinking that
we
may need in preparation for the final guidance, which we will consider
alongside any responses that we receive during the consultation
process. Dan
Rogerson: I understand absolutely that the guidance needs
a statutory force to have any real value. I am interested in what may
happen in the future, should the guidance be changed based on the
experience of processes that have been taken up in some parts of the
country where schemes have been successful or otherwise. What provision
is there for schemes that have reached the prospectus stage or have got
part of the way through the process, so that a great deal of work has
been done based on guidance that has then been altered? Are there
safeguards to help those in that position? I am thinking of local
authorities that have drawn up costings and a prospectus based on
guidance that may have subsequently been changed. Is there a cut-off so
that their projects can go forward under the guidance that applied
before such changes came into force?
Robert
Neill: Mr. Atkinson, I welcome you to the Chair
on what is a bright and sunny morning for London, as I hope it is for
Northumberland.
Robert
Neill: It was not so bright and sunny in Chislehurst
yesterday. I
understand the Minister’s point. The Committee has discussed the
importance of the guidance quite a bit. I am grateful to the right hon.
Gentleman for making it clear that the full 12 weeks’
consultation will take place. I am sure he has seen the briefing note
from the Local Government Association, which expressed a little
disappointment that there had not been more pre-consultation and was
hoping for more detail. I do not pass judgment on the details of that
note, but I hope that he will assure us that there will be a rigorous
process of engagement with both the LGA and the business community,
including those who have given evidence to the Committee, before the
process is completed.
Given
that the comments have to be in by 17 April and the Minister will, I
know, want to give them careful consideration, I realise that he may
not be able to give us an exact timetable, but if he has some idea of
when we can expect to see the completed guidance and of how it might
fit in with the Bill’s departure from this House to another
place, it might be helpful to know. I am sure that on some points,
perfectly understandably, further scrutiny will be sought, to see how
our debates and other representations have been incorporated into the
guidelines, as all of us on both sides of the Committee
want.
John
Healey: To the hon. Member for Bromley and Chislehurst,
let me say that of course the representations we receive and any
further discussions that are requested and are appropriate with
business organisations, local government bodies or other interest
groups will be picked up and pursued rigorously during the 12-week
consultation period. I am sure that the LGA can get its act together in
12 weeks to give us a full account of local government’s
concerns and the points it wishes to make; I look forward to its
response to the consultation. My intention, as it has been with every
element of the
preparation for the Bill, is not to delay either clarification or
confirmation of the approach we wish to take, not least because for
those authorities—in London, in particular—that want to
make early use of the powers, should Parliament pass the Bill, the
greater certainty they have and the earlier they have it, the
better.
In
terms of the relationship with parliamentary consideration of the Bill,
that approach has pros and cons. If we are able to produce the guidance
that we determine to be final early, it may play a role in informing
the debate in another place. On the other hand, holding back a little
longer, perhaps beyond the end of the formal consultation period, may
give Members of the other place the opportunity to feel that fresh
points that they may have to make could be taken into account. That is
a judgment that I will make closer to the time.
To the hon.
Member for North Cornwall, let me say in all honesty that there can be
no guarantee regarding the possibility of updating guidance. However,
there may be a degree of reassurance for him in subsection (2), where
much of the content of the guidance is linked to duties or requirements
set out in the Bill. In other words, the guidance is developed and will
be published within the framework and the constraints of the Bill
itself. The guidance is largely a matter of filling the gaps, rather
than writing a set of rules afresh. Those who look to the guidance that
we will produce to base work on a project or a BRS must be reassured to
know that it would be difficult to change it lock, stock and barrel,
but clearly there may be updates to the guidance in the
future.
Dan
Rogerson: I am talking, for example, about subsection
(2)(a) where it refers
to “the
kinds of projects which may, and may not, be regarded as appropriate
ones”. It
would be a fairly fundamental change if, for example, the guidance were
updated to modify the types of scheme that are to be included. That
would have serious consequences for a proposal that is being drawn up.
I merely want such issues to be
considered.
John
Healey: I understand. Nevertheless, if the hon. Gentleman
looks at the Bill, he will see that it contains specific constraints
linked to projects that will promote economic development, rather than
other aims, as well as statutory constraints on using BRS to fund
services that local authorities have a statutory responsibility to
provide. He has helped by drawing attention to a specific example of
how the guidance will describe or fill in the gaps in the fuller
picture, but the Bill itself lays out the framework within which the
guidance and any BRS will have to be
introduced. Question
put and agreed to.
Clause 26
accordingly ordered to stand part of the
Bill.
Clause
27Special
introductory
provision Question
proposed, That the clause stand part of the
Bill.
John
Healey: I shall speak briefly to this clause because the
special introductory provision requires comment. It is needed because
big projects can take some time to get under way and we do not want to
exclude authorities
that may have already been working in partnership with local businesses
and business organisations, developing detailed plans based on using
BRS as an element of their budget stream. That applies in particular to
projects that in the long term will bring real benefits to wide areas.
The clause therefore provides a general power to do that, and
subsection (6) specifically allows the Secretary of State to make
regulations on the establishment and operation of a BRS in London in
the period up to 1 April
2012. Mr.
Mark Field (Cities of London and Westminster) (Con): Is
the Minister not concerned that the nature of the provision goes to the
heart of what I suspect will be an ongoing concern for both individual
businesses and large business organisations: additionality? If a
programme is effectively already in place after much thought and
consultation with local businesses, and some sort of plan has been
devised in the preceding years, waiting for BRS to come on board goes
to the very heart of concerns about additionality. I am not saying that
it is an easy problem for the Minister to grapple with, but we risk
making business more cynical, particularly in these difficult times,
about having to pay for something through a BRS that it believes should
already have been paid for.
John
Healey: The hon. Gentleman is right. However, we discussed
in both the evidence and the scrutiny sittings that BRS in the case of
Crossrail and London is an essential element, without which the funding
package for the Crossrail project would not stand up and that project
would come to a juddering halt. That will be the consequence if this
House and the other place do not ultimately approve the Bill’s
provisions. I have not heard the concept of additionality persuasively
contested in the case of Crossrail. The importance of that certainty
and confidence in making such big projects work needs to be balanced
against the hon. Gentleman’s concern, and the way to deal with
that is to make the clause’s powerful provision properly
time-limited. 11
am In
other words, the special introductory provision can be used only up
until 1 April 2012. I hope that the hon. Gentleman will accept that we
are trying to strike the balance between not stopping big projects such
as Crossrail in their tracks, where a considerable amount of work has
appropriately gone on, and allowing what some might regard as a
potential loophole to the principle of additionality for BRS in any
future
projects. Question
put and agreed
to. Clause
27 accordingly ordered to stand part of the
Bill.
Clause
28Power
to make consequential
provision Question
proposed, That the clause stand part of the
Bill.
John
Healey: The clause is a standard but important element of
the Bill. It creates regulation-making powers for the Secretary of
State and for Welsh Ministers who can, in appropriate circumstances,
amend both primary and secondary legislation. We anticipate that the
power
will need to be exercised only in relation to secondary legislation, as
we have already made provision in the Bill to make amendments to
primary legislation that we have identified will be necessary for the
introduction and operation of a
BRS. Such
provisions are fairly standard legislative practice, simply because it
cannot be ruled out that there will be provisions in primary
legislation which will need amending. Similar provisions exist in
section 237 of the Planning Act 2008, in section 145 of the Pensions
Act 2008 and in section 167 of the Health and Social Care Act 2008. Any
regulations made under clause 28 will, if they amend primary
legislation, be subject to the affirmative procedure, and regulations
amending secondary legislation will be subject to the negative
procedure. Question
put and agreed
to. Clause
28 accordingly ordered to stand part of the
Bill.
Clause
29Regulations
etc. Question
proposed, That the clause stand part of the
Bill.
John
Healey: The clause applies to all the secondary
legislation-making powers in the Bill. We have spelt this out because,
as it is a revenue-raising Bill, it is important that there are no gaps
in the BRS system. The power in the clause is important to our ability
to achieve that.
The powers
are all exercisable by making regulations, apart from the power to make
a commencement order under clause 32. In particular, clause 29(3)
provides standard scope and flexibility for that provision to be
made
“generally or
only for specific cases”,
and for
“different
provision for different cases or areas”
to be made. In
addition, the subsection provides for secondary legislation
to “make
incidental, supplementary, consequential, transitional, transitory or
savings provision.”
I said
earlier that these are standard provisions. I questioned officials on
whether “transitory” was a standard component of such
clauses and was told, “It comes and goes.” That reflects
the fact that we may make regulations under the special introductory
provision that we have just discussed, which is available for a limited
period.
Robert
Neill: Can the Minister can help me? Do those who advise
him think that it is transitory, or do they consider that it is
transitory?
John
Healey: They are confident. They are confident that that
element that comes and goes in other legislation is required here
simply because we need to give effect to what will be transitory
provisions if regulations are required under clause
27. I
remind the Committee that I have published a statement of intent that
indicates how we intend to approach the main regulation-making powers
under the Bill. I can confirm—this will be of particular
interest in
another place—that I do not consider that any exercise of Commons
privilege over the regulation-making powers is required or appropriate.
Essentially, local government revenue raising could be subject to
Commons privilege, but generally that privilege is not asserted. In the
case of the BRS, that would not be appropriate because such revenue
will not come to the central Exchequer, but will be collected and held
at local authority level, so it would not be appropriate to consider
subjecting it to any form of Commons privilege. I am sure that Members
of the other place will appreciate that confirmation and will look
forward to the scrutiny role that they will play on all the
regulations, as well as the
Bill. | 
