My Lords, I propose to speak only on the report of the Delegated Powers and Regulatory Reform Committee, which I chair. I have been authorised to do so by members of the committee. Our 12th report of the Session contains a number of recommendations relating to the Planning Bill, of a type which appears regularly in our reports. I will not comment on them. However, having heard the noble Lord, Lord Jenkin, speaking about the national policy statement, I must say that we did not and could not comment on the appropriate procedure for that because I do not think it is technically within the definition of legislation.
I want to talk about paragraphs 21 to 25 of the report concerning Part 11, which deals with the community infrastructure levy. In doing so, I will make no comment on the merits of the CIL. There are two issues which arise. The first is the skeletal nature of Part 11, which leaves almost everything to regulations. The second is the fact that all regulations under Part 11 are to require approval by the House of Commons alone.
One reason for setting up the Delegated Powers and Regulatory Reform Committee some 20 years ago was the development of the practice of presenting Bills to Parliament which contained a bare outline—a skeleton of the Government's intentions, leaving the flesh to be filled in by statutory instruments. The committee was set up to help ensure that this did not continue. Its decision to declare a Bill, or part of a Bill, skeletal and inappropriate is infrequent. There have been five occasions when we have done so in the past 10 years, the latest being the Compensation Bill in the 2005-06 Session. When we say that a Bill—or, as here, a free-standing part of a Bill—is skeletal, that should be taken seriously. The word "inappropriate", which we use, is, as my noble friend Lady Hamwee said, Lords-speak for something considerably stronger.
Part 11 is a particularly bad example of this. It contains only two effective provisions. The first is the exhaustive list of potential charging authorities in Clause 199; the second is the ceiling on criminal sentences that can be imposed by regulations in Clause 204. Everything else is left to regulations. There is a list of these in paragraph 22 of the report. How can your Lordships' House properly consider the Bill if it does not know, for example, who is to pay the CIL, which is under Clause 200; what is development for purposes of the CIL—that is in regulations, again under Clause 200; how the CIL is to be calculated, which comes under Clause 201; what is the infrastructure for the purposes of the CIL, under Clause 202; and part, at least, of the procedure for the CIL, which is in Clause 205? In 11 years of membership of your Lordships' House, I cannot remember any provisions where such an important proposal has been introduced with so much left to secondary legislation.
"the broad nature of the enabling powers ... mean that Members of the House of Lords may not be in a position to know the full implications of what they are voting for in relation to the CIL".
Fortunately, the Government have two and a half months before the Bill goes into Committee. I hope that they will use that interval to put flesh on to the skeleton and provide enough detail to satisfy your Lordships' House. If not, your Lordships' House will have to give serious consideration to removing Part 11 from the Bill. I would not regard simply the publication of the proposed regulations as adequate to meet this problem. That will remain open to be amended without any approval by your Lordships' House.
The second issue is that all regulations are to be made by the affirmative procedure in the House of Commons only. That assumes that the whole of Part 11 is subject to the financial procedure and therefore to the House of Commons privilege.
The CIL is not in any ordinary sense a tax. It is a charge, imposed under statutory powers, by the charging authority, which is not the Government except in those cases where the Secretary of State is the charging authority. It enables the charging authority to recover the costs of infrastructure construction, which is for the benefit of the developer or owner—no money passes through the Consolidated Fund. Paragraph 26 of the report lists a number of comparable charges where there is no financial privilege. I have spent some time in the past few days reading the relevant passages of Erskine May, which include, at page 901, the following:
"The rules of financial procedure do not apply to the receipts of local authorities, when they form the subject of legislation, unless they are in the form of grants from the Consolidated Fund. Provisions in bills dealing with local loans do not require authorization by Ways and Means resolution; nor do bills empowering local authorities to levy charges, rates or taxes".
I have to admit that that is somewhat close to the boundary, but in our view, as expressed in paragraph 26, it should not be a matter for the House of Commons alone to approve regulations under Part 11. Even if that is so in relation to some aspects of Part 11, many are not within the House of Commons privilege by any standards. It would therefore be appropriate, if your Lordships' House wished to do so, to amend Clause 207(2) to require regulations in Part 11 to be approved by both Houses.
I hope that the Minister will be able to take these questions on board and that we will, when we come back in October, be able to consider these matters in the proper form and not as they are now.