Criminal Evidence (Witness
Anonymity) Bill
Twelfth Report
1. The Ministry of Justice have provided a memorandum,
printed at Appendix 1, on the single delegation of power in this
bill, at clause 14(3). The delegation is a well-precedented provision
to extend the life of the Act by order subject to affirmative
resolution and there is nothing in the provision which we wish
to draw to the attention of the House.
Health and Safety (Offences)
Bill
2. This private member's bill brought from the
Commons has Government support. The Department for Work and Pensions
has provided a memorandum, printed at Appendix 2, on the two delegated
powers in the bill. Paragraph 7 of the memorandum acknowledges
that the amendments to existing regulations to be made under the
new power in the bill could be made under the existing powers.
On that basis, the powers taken in the bill are, in our opinion,
unnecessary. We do not however consider it inappropriate for the
Secretary of State to be able to make the amendments proposed
by regulations subject to negative procedure.
Planning Bill
3. This 12-Part bill deals with a number of topics
including a new system of development consent for nationally significant
infrastructure projects (Parts 1 to 8). A memorandum from the
Department for Communities and Local Government, printed at Appendix
3, explains most of the delegated legislative powers, and some
of the administrative powers, in the bill. There are also delegated
legislative powers or modifications of existing powers at clauses
24(6), 119(4), 162(7), 163(3), 184 (new section 96A(5)) and 215(4)
and paragraph 1(6)(b) of Schedule 3, paragraphs 2(5) and (8),
4(1), (4) and (6), 6 and 7 of Schedule 6, paragraph 7 of Schedule
7 and paragraph 12 of Schedule 10.
Nationally significant infrastructure projects
— clause 14
4. Clause 14(1) defines "nationally significant
infrastructure project". It is only to such projects that
the new procedures in Parts 1 to 8 of the bill apply. Clauses
15 to 29 describe in greater detail which types of development
fall within the definition.
5. Clause 14(3) enables the Secretary of State,
by order subject to affirmative procedure, to amend clause 14(1)
by adding, varying or removing types of project and to make provision,
which may include amendment to legislation (including the bill
itself) about the types of project that are within clause 14(1).
This is a significant power as it affects the scope of the new
procedures but it is limited as explained in paragraph 35 of the
memorandum (see clause 14(5) to (7)) and we do not consider it
inappropriate. We should note that the memorandum has not sought
to make a case for the removal of types of project, though we
assume that the Minister will be able to do so to the House. We
note that an order which adds to the list at clause 14(1) will
also need to add definitions and restrictions for that addition
similar to the provision in clauses 15 to 29.
Interpretation of Chapter 4: "interested
party" and other expressions — clause 99
6. Chapter 4 of Part 6 of the bill makes provision
about the examination of applications for orders granting development
consent. The Part gives certain rights to interested parties.
Clause 99 defines "interested party" to include "a
statutory party" and the clause goes on to enable the Secretary
of State to define "statutory party" in negative regulations
(clause 99(3)). In view of the fact that the power can be used
only to enlarge the classes of person with rights under the Part,
the power and level of parliamentary control are not inappropriate.
Decisions on applications for development consent
orders — clauses 101 and 102
7. Clause 101(2) sets out the matters to which
a Panel of, or the Council of, the Infrastructure Planning Commission
("the Commission") must have regard in deciding an application.
Clause 102(2) sets out the matters to which the Secretary of State
must have regard in deciding an application. (She is the decision-taker
where there is no relevant national policy statement - see clause
100(1).) Clauses 101(2)(c) and 102(2)(b) give the Secretary of
State power to prescribe, by regulations subject to negative procedure,
additional matters to which regard must be had. The memorandum
makes no case for the negative procedure (paragraph 92). In
the case of clause 101, the regulations will set out a significant
part of the framework within which the largely independent Commission
will operate and we consider that this power should be subject
to the affirmative procedure. If, in practice, the power in clause
102 is likely to be exercised in the same regulations as that
in clause 101, it would be appropriate that the same procedure
should apply to regulations under clause 102.
Development consent orders — clause 116
8. Paragraphs 102 to 127 of the memorandum explain
what may be included in an order granting development consent.
These orders are made by the Commission or, in some cases, the
Secretary of State. They are not statutory instruments and they
are not subject to any parliamentary procedure, except, in certain
specific cases, the special parliamentary procedure sometimes
applied by Acts in cases of compulsory purchase (see clauses 124(2),
126(2), 127(2) and 128(2)).
9. Subject to limited exceptions (paragraphs
9 to 14 below) the decision embodied in a development consent
order, which can only relate to an individual project, is an executive
rather than a legislative decision, even if it is made by a Secretary
of State. The content of the order will for the most part be material
which would otherwise have been contained in other executive documents
(such as those granting planning permission, the authorisations
etc. referred to in clause 32(1), the licences or consents referred
to in Schedule 5 or a compulsory purchase order). The lack of
a parliamentary procedure is, therefore, not inappropriate from
our perspective.
10. We must however draw the following aspect
of the orders to the attention of the House. Clause 116(5)(a)
and (b) follows section 5(3)(a) and (b) of the Transport and Works
Act 1992 and is explained at paragraphs 122 to 125 of the memorandum.
An order under this clause may apply, modify or exclude a statutory
provision (including a provision of an Act) and may amend, repeal
or revoke statutory provisions (including local Acts) of local
application. Although the power is limited to matters for which
provision may be made in the order (and so is project-specific)
it is still the case that amending an Act of Parliament, even
one of local application, is the exercise of a legislative power.
11. For projects covered by the 1992 Act, orders
are made by statutory instrument by the Secretary of State, though
neither the negative nor the affirmative procedure applies to
them.
12. Paragraph 127 of the memorandum explains
the involvement of the Secretary of State in orders to be made
by the Commission when modifications of legislation are proposed.
But the Secretary of State's powers are limited to ensuring compliance
with European Community law and human rights.
13. We are not aware of comparable legislative
powers having been given to anyone other than a Minister, or for
comparable powers to be exercisable otherwise than by statutory
instrument (with its attendant numbering and transparency requirements).
It would be possible for the bill to separate out the legislative
items so that they are provided for by a statutory instrument
made by a Minister. The memorandum makes it clear however that
the ability of the Commission to override statutes is at the heart
of the policy in the bill (paragraph 124). If the House accepts
the policy that the Commission should have the considerable executive
powers given to it by the bill, it does not seem to us necessary
to separate out those items of delegation that are legislative
in character for separate order by the Secretary of State. We
do however consider that orders under clause 116(5)(a) and (b)
should be contained in a statutory instrument, made (in the unusual
circumstances of this delegation) either by the Commission itself
or by the Secretary of State. Such an instrument should be laid
before Parliament but should not be subject to any parliamentary
procedure.
Determination of applications by officers —
clauses 177, 178 and 180
14. Clause 177 (inserting new sections 75A to
75D into the Town and Country Planning Act 1990 ("TCPA 1990"))
provides for the determination of planning applications by officers.
The Secretary of State is empowered to make regulations (subject
to negative procedure) about the types of application which must,
or must not, be determined by officers and more generally about
arrangements made under the new provisions. These regulations
may disapply or modify any provision of Part 3 of the TCPA 1990,
which comprises over 50 sections about control of development.
15. In connection with new section 75B, the memorandum
(paragraph 148) correctly points to the fact that under section
74 of the TCPA 1990 provision for regulating the manner in which
applications for planning permission are to be dealt with are
largely left to development orders and to directions by the Secretary
of State. But section 74 of the TCPA 1990 contains no comparable
power to disapply or modify Part 3 and, had it done so, the effect
of section 333(6) of that Act would have been to make the order
subject to affirmative procedure.
16. The memorandum does not seek to justify the
power in new section 75B to disapply or modify Part 3 of the TCPA
1990. In relation to the similar power in new section 75D, paragraph
150 of the memorandum explains that the same justification applies
as for the power in section 75B. We recommend that the power
to modify or disapply Part 3 of the TCPA 1990 should be limited
to those specific provisions of Part 3 for which the Government
can demonstrate a need. Alternatively, the power should be limited
to modification for purely consequential purposes. The negative
procedure would not then be inappropriate in either event.
17. We draw to the attention of the House that
a similar point arises on clause 178 (new section 193B(2) and
193D(5)). Although in those cases only 3 specific sections of
the TCPA 1990 may be modified, and the likely extent of the use
of the power is therefore more easily ascertainable, there is
again no explanation of why the power to modify or disapply is
needed. A similar point also arises on clause 180 relating to
listed building applications. The Minister should be invited
to justify the acquisition of these powers.
Tree preservation orders — clause 186
18. Clause 186 is explained at paragraphs 155
to 157 of the memorandum. The power conferred on the Secretary
of State to make regulations (subject to negative procedure) is
largely a power to provide for matters which currently may be
contained in locally-made tree preservation orders, for matters
for which regulations may currently provide, and for some matters
(e.g. the confirmation of tree preservation orders) for which
the TCPA 1990 itself provides. There are new specific powers relating
to some matters, such as appeals against refusal of consent. We
wish only to draw the attention of the House to the following
aspect of the arrangement.
19. New section 202G, inserted by clause 186,
enables the regulations to provide for the application of, or
make provision comparable to, any provision contained in the TCPA
1990, the Planning (Listed Buildings and Conservation Areas) Act
1990, the Planning (Hazardous Substances) Act 1990 or the Planning
(Consequential Provisions) Act 1990. These statutory provisions
deal with a wide range of planning matters and include provisions
about enforcement (including criminal offences), injunctions,
rights of entry, compulsory purchase etc. There is no equivalent
in the current legislation (though there is a much more restricted
power in section 198(3)(c) of the TCPA 1990) and the memorandum
gives no justification for the extent of this power. We consider
the breadth of this provision to be inappropriate. Given the existing
provisions in Part 8 of the TCPA 1990 as to be amended by other
provisions of this bill, it is not obvious to us what, if any,
new provision will in fact be required. We consider that new section
202G(1) should be removed from the bill and replaced with provision
which enables the application (with or without modification) of
specific provisions of the Planning Acts which the Minister can
demonstrate to be reasonably necessary. If so amended,
the negative procedure would probably be sufficient for such a
delegation.
Fees — clauses 193 and 194
20. Clauses 193 and 194 are explained at paragraphs
165 to 170 of the memorandum. Each of the powers may be used to
"amend, repeal or revoke any provision made by or under this
Act or by or under any other Act". The amendments which may
be made are not limited to those made for the incidental purposes
mentioned in new sections 303(6)(a) and 303ZA(4)(a). Even allowing
for the fact that limitations are implied by the context (fees),
this seems wider than is justified. The memorandum explains (paragraphs
166 and 169) that the power is taken for the limited purposes
of making provision supplementary to new sections 303(5)(f) and
303ZA(2)(e) (effect of failing to pay a fee). The powers to
amend or repeal Acts in clauses 193 and 194 are only appropriate
if more closely circumscribed, for example if limited to amendment
for incidental or consequential purposes or to the purpose identified
in the memorandum.
Community Infrastructure Levy — clauses
198 to 208
21. The provisions of the bill about the Community
Infrastructure Levy are well explained in paragraphs 182 to 229
of the memorandum. Clause 198 enables the Secretary of State (with
the consent of the Treasury) to make regulations providing for
a charge called Community Infrastructure Levy (CIL). The regulations
are subject to affirmative procedure in the House of Commons only.
These clauses raise two significant issues which we draw to the
attention of the House.
SKELETON PROVISION
22. Clause 198(2) provides that the aim of making
the regulations is to "ensure that the overall purpose of
CIL is to ensure that costs incurred in providing infrastructure
to support the development of an area can be funded (wholly or
partly) by owners or developers of land the value of which increases
due to development". This is thus a levy on development value
(paragraph 310 of the Explanatory Notes). All of the following
items are however left to be determined by subordinate legislation:
a) who (from a list of possibilities) may charge
CIL (clause 199);
b) whether it is the owner or developer, or both,
who must pay and who is an owner or developer for this purpose
(clause 200);
c) what constitutes development;
d) whether, and in what circumstances, CIL is
payable even if the value of the land has not increased (clause
200(5));
e) the amount, or the formula by reference to
which the amount is calculated (clause 201);
f) the avenue of appeal on questions of fact
(clause 201(6));
g) the purposes for which charges raised must
be used (clause 202);
h) methods of collection (clause 203);
i) enforcement, including conferring powers of
entry, creating criminal offences (subject to the maxima in clause
204(5)), penalties and surcharges (unlimited) and replicating
or applying "any enactment relating to the enforcement of
a tax".
j) whether the Secretary of State should have
powers to control the imposition, etc. of CIL and, if so, what
those powers should be (clause 206).
23. The regulations may, in one respect, even
amend the bill so as to re-define their own enabling power (clause
202(3) - see paragraphs 204 to 206 of the memorandum). They also
"may apply an enactment, with or without modifications"
(clause 207(1)(e)).
24. Clause 208 enables the regulations to include
provision about how the powers in section 106 of the TCPA 1990
and section 278 of the Highways Act 1980 are to be used and "may
include provision about the exercise of any other power relating
to planning or development"; but this is circumscribed by
the purposes set out in clause 208(4).
25. The memorandum seeks to justify the provision
by a requirement for "flexibility over time, to reflect lessons
learnt from the application of CIL in practice and to permit different
arrangements in different areas" (paragraph 187). While some
or other of the delegations in clauses 198 to 208 might individually
not be inappropriate, their cumulative effect if enacted would
be that Parliament would have set no discernable policy framework
for CIL and would enable successive Secretaries of State to implement
schemes of greatly different character and effect without the
need for further primary legislation. Acts establishing other
charges capable of being operated at national level, including
stamp duty land tax referred to in the memorandum (paragraph 185),
contain significantly more detail about the purpose and operation
of each charge. It is inappropriate that so many key features
of CIL are proposed to be left to delegated legislation. We consider
that Part 11 of the bill is skeleton in its current form and that
a considerable amount of legislation which is currently proposed
to be delegated should instead appear on the face of the bill.
PARLIAMENTARY PROCEDURE
26. Regulations under clause 198 are subject
to affirmative procedure in the House of Commons only. The memorandum
seeks to justify this on the basis that the regulations may result
in the imposition of a charge, a matter for the financial privilege
of the House of Commons (paragraph 185). It is for the Commons
to judge whether or not the whole of the provision in Part 11
of the bill attracts financial privilege but we note that, under
the bill, receipts are not paid into the Consolidated Fund or
any other particular fund but are to be spent by the receiving
body (clause 202(1)); and that the regulations, so far as dealing
with the matters referred to in clauses 202, 205 and 208, are
not obviously financial. We also note that regulations dealing
with at least some aspects of the following charges are subject
to a procedure in both Houses: national insurance, council tax,
business rates, the Business Improvement Districts levy, the climate
change levy and indeed the two charges cited in the memorandum
as precedent (paragraph 220). Except in so far as the House
considers that provision in Part 11 of the bill is related to
matters over which the Commons will claim financial privilege,
we recommend that the power at clause 198 (once significantly
limited in its scope) should be subject to control in both Houses.
Housing and Regeneration
Bill — Government Amendments
27. We reported on this bill in our 8th Report
(HL Paper 102) and considered Government amendments in our 10th
Report (HL Paper 120). The Government have now invited us to consider
further amendments to be moved on Report, printed on sheets HL
Bill 67(b) and HL Bill 67(c). The Department for
Communities and Local Government have provided two supplementary
memoranda on the amendments, printed at Appendix 4. There is nothing
in the delegations in these amendments which we wish to draw to
the attention of the House.
Pensions Bill —
Government Amendments
28. We first reported on this bill in our 9th
Report (HL Paper 111) and considered Government amendments in
our 10th (HL Paper 120) and 11th Reports (HL Paper 133). The Government
have now invited us to consider further amendments to be moved
in Committee and printed on sheet HL Bill 50-II(d). The
Department for Work and Pensions have provided a supplementary
memorandum on the amendments, printed at Appendix 5. Amendment
130EW inserts a new clause which enables the amendment of certain
provisions of the Pensions Act 2004 by affirmative regulations.
The case for the provision as an anti-avoidance measure to protect
the Pension Protection Fund is made out at paragraphs 17 to 30
of the memorandum and the power is not inappropriate. We should
however draw to the attention of the House that the clause includes
power to make provision retrospective to 14 April 2008. Although
unusual, this is neither unprecedented nor here unjustified. There
is nothing in the delegations in the other amendments which we
wish to draw to the attention of the House.
Crossrail Bill —
Government response
29. We reported on this bill in our 4th Report
(HL Paper 49) and the Government have now responded by way of
a letter to the Chairman from Lord Bassam of Brighton, Government
spokesman for the Department of Transport in the House of Lords,
printed at Appendix 6.
Draft Legislative Reform
(Consumer Credit) Order 2008
30. This is the third Legislative Reform Order
(LRO) to be laid under the Legislative and Regulatory Reform Act
2006 and is to be made under the burden-reducing power in section
1 of that Act. The Department for Business, Enterprise and Regulatory
Reform has laid an Explanatory Document[1]
with the draft order in accordance with the Act.
31. The LRO amends the Consumer Credit Act 1974
for three purposes:
- to exempt buy-to-let lending from
regulation;
- to clarify the position on the giving of statements
for fixed-sum credit agreements; and
- to provide definitions of "payments"
for the purpose of issuing notices of sums in arrears
32. We consider that the draft order meets the
tests in the 2006 Act; that it is not otherwise inappropriate
to be made by delegated legislation; and that it meets the tests
applied to other instruments by the Joint Committee on Statutory
Instruments.
33. Unlike the Regulatory Reform Act 2001, which
provided a single super-affirmative procedure for regulatory reform
orders, the 2006 Act allows the Government to propose the negative,
affirmative or super-affirmative procedure for each LRO, with
Parliament allowed to upgrade the procedure if it so wishes within
30 days from the date on which the instrument was laid. The Government
have proposed the affirmative procedure for this draft order:
we do not consider that procedure inappropriate.
Draft Legislative Reform
(Local Authority Consent Requirements) (England and Wales) Order
2008
34. This Legislative Reform Order is subject
to the super-affirmative procedure set out at section 18 of the
Legislative and Regulatory Reform Act 2006 and is now at its second
stage. We first considered the original draft of this Order on
17 October 2007 when we upgraded the parliamentary procedure which
applied to it from the affirmative to the super-affirmative procedure.
We then reported on the draft Order in our First Report (HL Paper
11). In that report, we recommended two amendments: first that
the proposal relating to the Cancer Act 1939 should not extend
to metropolitan district councils; secondly that the recital in
respect of Wales required amendment. The draft Order was considered
in Grand Committee on 13 December 2007. The department has now
laid (on 26 June 2008) the second stage draft Order incorporating
both of the amendments which we had sought. Accordingly, we
recommend that this draft Order is in a form satisfactory to be
submitted to the House for affirmative resolution.
1 http://www.opsi.gov.uk/si/si2008/draft/ukdsi_9780110818542_en_1
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