Select Committee on Delegated Powers and Regulatory Reform Twelfth Report


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  Back


 
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