Fifteenth Report
Bank of England (Amendment) Bill [HL]
1. This Private Member's bill amends the Bank
of England Act 1998 so that the Bank's two statutory objectives
- to maintain price stability and to support the Government's
economic policy - are to be given equal weight, instead of the
former taking precedence over the latter, as now. The Bill contains
only one delegated power, to enable the Treasury to bring the
resulting Act into force by order. We recommend that the order
should be made by statutory instrument, in the usual way.
Climate Change Bill [HL] — Government
Amendments
2. We reported on this bill in our 2nd Report
(HL Paper 21) and printed the Government's response, and a memorandum
on further amendments, in our 6th Report (HL Paper 76). We have
now been invited to consider amendments made to the Bill during
its passage through the House of Commons, printed on sheet HL
Bill 87, and further Government amendments printed on sheet HL
Bill 87(d). The Department for Energy and Climate Change &
the Department for Environment, Food and Rural Affairs have provided
two memoranda on the amendments, printed at Appendix 1.
3. Commons amendments 43 and 78 add a new clause
and schedule to the Bill. The amendments would permit the introduction,
by regulations, of a system of charges for single use carrier
bags. Regulations could also provide for a range of civil sanctions,
including monetary penalties, for failure to comply with the new
system. Of the monetary penalties, the schedule specifies a maximum
(of £5000) for 'fixed monetary penalties', but no maximum
level is set for 'variable monetary penalties' (paragraph 12(5))
or 'non-compliance penalties' (paragraph 14(3)).
4. Subsection (4) of the new clause requires
that the first set of regulations to provide for a monetary penalty
will be subject to the affirmative procedure. However future sets
of Regulations increasing a maximum penalty, or changing the formula
for determining a penalty, would be subject to the negative procedure.
Given that the schedule specifies no maximum for variable penalties
or non-compliance penalties, the Committee considers that regulations
increasing the maximum for such penalties, or changing the formula
for calculating them, should be subject to the affirmative procedure.
We note that a similar provision is already included in the part
of the Bill relating to trading schemes (clause 47(3)(f) in Bill
97).
5. Paragraph 16 allows regulations to require
a person to pay interest or a financial penalty for late payment
of the original penalty. The Committee notes that the power
in paragraph 16 does not include provision for a right of appeal
against the imposition of a penalty for late payment, as is
already included for the other penalties in the schedule. The
House may wish to seek an explanation from the Minister for this
difference in provision.
6. Paragraph 19(4) provides that, if a person
has failed to publicise the imposition of a civil sanction as
required by the administrator, the administrator may publicise
the information and recover the cost of doing so from the person.
There is no provision about how these costs might be calculated
and how they might be recovered, in contrast to paragraphs 16(2)
and 17(4), which cover cost recovery for discretionary requirements.
The House may wish to seek an explanation as to the nature
of the provision envisaged under paragraph 19(4).
7. Paragraph 29 of the schedule provides that
where regulations made under the schedule would otherwise be treated
as a hybrid instrument under the standing orders of either House
of Parliament, the instrument shall proceed as if it were not
a hybrid instrument. The Department's memorandum explains that
the paragraph has been included because it may be necessary to
name individual retailers in the regulations, but that their naming
in a scheme would not "sufficiently threaten [their] vital
interests ... so as to justify the use of the hybrid procedure".
The disapplication in paragraph 29 is not in itself unusual,
but we draw it to the attention of the House so that it might
satisfy itself that private interests will nevertheless be adequately
protected.
Counter-Terrorism Bill — Government
Amendments
8. We reported on this bill in our 11th Report
(HL Paper 133). The Government have now invited us to consider
amendments which were printed on sheet HL Bill 82—II. The
amendments were agreed by the House during the second day of Report
on Tuesday 11 November, when it was noted that this Committee
had not yet considered the amendments and that, if necessary,
they could be revisited at third reading[1].
HM Treasury has provided a supplementary memorandum on the amendments,
printed at Appendix 2 to this Report.
9. One of the amendments introduces a new schedule
Terrorist financing and money laundering. If conditions
relating to the risk of terrorist financing, or money laundering,
or the development of certain weapons, are met, the schedule would
allow the Treasury to give directions to a person or people operating
in the financial sector. These directions could require enhanced
due diligence, additional monitoring and reporting, or might require
a recipient not to enter into, or to cease, a transaction or business
relationship. Paragraphs 4 to 7 of the schedule provide a definition
of 'persons operating in the financial sector'. Paragraph 8 of
the schedule allows the Treasury to amend this definition, by
order subject to the negative procedure. The Treasury explain
in their memorandum that the definition refers to the Third Money
Laundering Directive and to certain UK statutory instruments and
that, whenever these are amended, the definition in paragraphs
4 to 7 will have to be updated.
10. The power in paragraph 8 is not, however,
currently limited to the technical adjustments referred to by
the Treasury in their memorandum. It is a wide power, which simply
allows the Treasury "by order [to] amend paragraphs 4 to
7". If the power was limited only to amendments made necessary
by changes to the relevant EU legislation or which are merely
consequential on changes to relevant domestic legislation, the
negative procedure might be considered appropriate. Insofar
as the power in paragraph 8 extends to making any other changes
to the definition, the Committee considers that the affirmative
procedure should apply. If urgency is an issue, the 'made
affirmative' procedure, by which an instrument can take effect
before being laid before Parliament, but lapses within 28 days
of being made unless approved by a resolution of both Houses,
could be used. (The made affirmative procedure is employed in
paragraph 14(2) of the schedule.)
Dormant Bank and Building Society Accounts
Bill [HL] — Government Amendments
11. We reported on this bill in our First Report
(HL Paper 11). We have been invited to consider amendments made
to the bill during its passage through the House of Commons, printed
on sheet HL Bill 91. HM Treasury has provided a memorandum on
the amendments, printed at Appendix 3.
12. Clause 11 of the Bill sets out the definition
of a dormant account, including that there must have been no customer-initiated
activity on the account for 15 years. Commons amendment 10 would
allow the Treasury to increase or reduce this 15 year period,
by order subject to the negative procedure. The definition of
a dormant account is central to the purpose of the Bill, and the
Committee recommends that the power to amend the 15 year period
should be subject to the affirmative procedure.
Pensions Bill — Government Amendment
13. We reported on this bill in our 9th Report
(HL Paper 111), published the Government's response in our 10th
Report (HL Paper 120) and considered Government amendments in
our 11th, 12th and 14th Reports (HL Papers 133, 148 and 187).
The Government have now invited us to consider a Third Reading
amendment, printed on sheet HL Bill 89(b). The Department
for Work and Pensions have provided a memorandum on the amendment,
printed at Appendix 4 to this Report. There is nothing in the
delegations in the amendment to which we wish to draw the attention
of the House.
Planning Bill — Government Amendments
14. We reported on this Bill in our 12th Report
(HL Paper 148) and considered Committee Stage amendments in our
13th Report (HL Paper 179). The Government have now invited us
to consider Report stage amendments, printed on sheet HL Bill
84—II. The Department for Communities and Local Government
have provided a supplementary memorandum on the amendments, printed
at Appendix 5 to this Report.
15. We noted in our 13th Report that, while we
welcomed the various amendments putting more detail about the
Community Infrastructure Levy (CIL) onto the face of the Bill,
we thought that the House might wish to reserve judgement on the
overall acceptability of the CIL provisions until the Government
tabled amendments clarifying who is liable to pay CIL (at the
least to set out a default position which might then be departed
from in specified circumstances). Amendments 135A and 136A address
the issue of liability. While they still do not establish a clear
default position for liability, they do provide further detail
about how liability will be established. Though there remains
less detail in the Bill than we might have wished, these and the
other amendments already tabled provide a greater indication about
how CIL will work, and we consider that Part 11 of the Bill can
no longer be described as skeleton legislation.
Government amendments
16. The Committee wishes to record its concern
about the very large numbers of Government amendments tabled in
recent weeks, late in the passage of the bills through Parliament
and containing significant delegated powers. The volume and complexity
of these amendments has made it difficult for the Committee to
fulfil the mandate given to it by the House to scrutinise properly
the delegated powers in the amendments. For the future we hope
that the Government will do all it can to limit the tabling of
amendments, particularly those containing significant delegated
powers, in the later stages of a Bill's consideration by Parliament.
1 HL Debates 11 November 2008, cols 585 to 596 Back
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