Local Government (Independence) Bill (HC Bill 72)

Local Government (Independence) BillPage 10

(5) However, a committee of either House charged with reporting on the draft
order may, at any time after the laying of a statement under sub-paragraph
(3) and before the draft order is approved by that House under sub-
paragraph (4), recommend under this subsection that no further
5proceedings be taken in relation to the draft order.

(6) Where a recommendation is made by a committee of either House under
sub-paragraph (5) in relation to a draft order, no proceedings may be taken
in relation to the draft order in that House under sub-paragraph (4) unless
the recommendation is, in the same Session, rejected by resolution of that
10House.

(7) If, after the expiry of the 60-day period, the Minister wishes to make an order
consisting of a revised version of the draft order, he must lay before
Parliament—

(a) a revised draft order; and

(b) 15a statement giving details of—

(i) any representations made under sub-paragraph (2)(a); and

(ii) the revisions proposed.

(8) The Minister may, after laying a revised draft order and statement under
sub-paragraph (7), make an order in the terms of the revised draft if it is
20approved by a resolution of each House of Parliament.

(9) However, a committee of either House charged with reporting on the
revised draft order may, at any time after the revised draft order is laid
under sub-paragraph (7) and before it is approved by that House under sub-
paragraph (8), recommend under this subsection that no further
25proceedings be taken in relation to the revised draft order.

(10) Where a recommendation is made by a committee of either House under
sub-paragraph (9) in relation to a revised draft order, no proceedings may
be taken in relation to the revised draft order in that House under sub-
paragraph (8) unless the recommendation is, in the same Session, rejected by
30resolution of that House.

(11) For the purposes of sub-paragraphs (4) and (8) an order is made in the terms
of a draft order if it contains no material changes to the provisions of the
draft order.

(12) In this schedule the “60-day period” means the period of 60 days beginning
35with the day on which the draft order was laid before Parliament under sub-
paragraph (4).

(13) In calculating any period of days for the purposes of this section, no account
shall be taken of any time during which Parliament is dissolved or
prorogued or during which either House is adjourned for more than four
40days.

5 A resolution of either House is valid for the purposes of this schedule if, and
only if, the motion for the resolution—

(a) is agreed without a division; or

(b) is passed on a division in which the number of members who vote in
45favour of the motion is a number equal to or greater than two-thirds
of the number of seats in the House (including vacant seats).

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Section 4(2)

SCHEDULE 4 Interpretation and amendment of legislation

Interpretation of Legislation

1 (1) So far as it is possible to do so, primary legislation and subordinate
5legislation must be read and given effect in a way which is compatible with
the Code.

(2) This paragraph—

(a) applies to primary legislation and subordinate legislation whenever
enacted;

(b) 10does not affect the validity, continuing operation or enforcement of
any incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of
any incompatible subordinate legislation if (disregarding any
possibility of revocation) primary legislation prevents removal of the
15incompatibility.

Declaration of Incompatibility

2 (1) Sub-paragraph (2) applies in any proceedings in which a court determines
whether a provision of primary legislation is compatible with the Code.

(2) If the court is satisfied that the provision is incompatible with the Code, it
20may make a declaration of that incompatibility.

(3) Sub-paragraph (4) applies in any proceedings in which a court determines
whether a provision of subordinate legislation, made in the exercise of a
power conferred by primary legislation, is compatible with a provision of
the Code.

(4) 25If the court is satisfied—

(a) that the provision is incompatible with the Code, and

(b) that (disregarding any possibility of revocation) the primary
legislation concerned prevents removal of the incompatibility,

it may make a declaration of that incompatibility.

(5) 30In this paragraph “court” means the Supreme Court; the Court of Appeal;
and the High Court.

(6) A declaration under this paragraph (“a declaration of incompatibility”)—

(a) does not affect the validity, continuing operation or enforcement of
the provision in respect of which it is given; and

(b) 35is not binding on the parties to the proceedings in which it is made.

Power to take remedial action

3 (1) This paragraph applies if—

(a) a provision of legislation has been declared under paragraph 2 to be
incompatible with the Code and, if an appeal lies—

(i) 40all persons who may appeal have stated in writing that they
do not intend to do so;

Local Government (Independence) BillPage 12

(ii) the time for bringing an appeal has expired and no appeal has
been brought within that time; or

(iii) an appeal brought within that time has been determined or
abandoned; or

(b) 5it appears to the Secretary of State that, having regard to any finding
of his under section 5(1) of the Localism Act 2011, a provision of
legislation is incompatible with the Code.

(2) If a Minister of the Crown considers that there are compelling reasons for
proceeding under this section, he may by order make such amendments to
10the legislation as he considers necessary to remove the incompatibility.

(3) If, in the case of subordinate legislation, a Minister of the Crown considers
that—

(a) it is necessary to amend the primary legislation under which the
subordinate legislation in question was made, in order to enable the
15incompatibility to be removed, and

(b) there are compelling reasons for proceeding under this paragraph,

he may by means of a remedial order make such amendments to the primary
legislation as he considers necessary.

(4) This paragraph also applies where the provision in question is in
20subordinate legislation and has been quashed, or declared invalid, by reason
of incompatibility with the Code and the Minister proposes to proceed
under paragraph 2(b) of Schedule 5.

(5) If the legislation is an Order in Council, the power conferred by sub-
paragraph (2) or (3) is exercisable by Her Majesty in Council.

(6) 25Schedule 5 makes further provision about remedial orders.

Section 5

SCHEDULE 5 Remedial Orders

Orders

1 (1) A remedial order may—

(a) 30contain such incidental, supplemental, consequential or transitional
provision as the person making it considers appropriate;

(b) be made so as to have effect from a date earlier than that on which it
is made;

(c) make provision for the delegation of specific functions;

(d) 35make different provision for different cases.

(2) The power conferred by sub-paragraph (1)(a) includes—

(a) power to amend primary legislation (including primary legislation
other than that which contains the incompatible provision); and

(b) power to amend or revoke subordinate legislation (including
40subordinate legislation other than that which contains the
incompatible provision).

(3) A remedial order may be made so as to have the same extent as the
legislation which it affects.

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(4) No person is to be guilty of an offence solely as a result of the retrospective
effect of a remedial order.

Procedure

2 No remedial order may be made unless

(a) 5a draft of the order has been approved by a resolution of each House
of Parliament made after the end of the period of 60 days beginning
with the day on which the draft was laid; or

(b) it is declared in the order that it appears to the person making it that,
because of the urgency of the matter, it is necessary to make the order
10without a draft being so approved.

Orders laid in draft

3 (1) No draft may be laid under paragraph 2(a) unless—

(a) the person proposing to make the order has laid before Parliament a
document which contains a draft of the proposed order and the
15required information; and

(b) the period of 60 days, beginning with the day on which the
document required by this sub-paragraph was laid, has ended.

(2) If representations have been made during that period, the draft laid under
paragraph 2(a) must be accompanied by a statement containing—

(a) 20a summary of the representations; and

(b) if, as a result of the representations, the proposed order has been
changed, details of the changes.

Urgent cases

4 (1) If a remedial order (“the original order“) is made without being approved in
25draft, the person making it must lay it before Parliament, accompanied by
the required information, after it is made.

(2) If representations have been made during the period of 60 days beginning
with the day on which the original order was made, the person making it
must (after the end of that period) lay before Parliament a statement
30containing—

(a) a summary of the representations; and

(b) if, as a result of the representations, he considers it appropriate to
make changes to the original order, details of the changes.

(3) If sub-paragraph (2)(b) applies, the person making the statement must—

(a) 35make a further remedial order replacing the original order; and

(b) lay the replacement order before Parliament.

(4) If, at the end of the period of 120 days beginning with the day on which the
original order was made, a resolution has not been passed by each House
approving the original or replacement order, the order ceases to have effect
40(but without that affecting anything previously done under either order or
the power to make a fresh remedial order).

Definitions

5 In this Schedule—

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  • “representations” means representations about a remedial order (or
    proposed remedial order) made to the person making (or proposing
    to make) it and includes any relevant Parliamentary report or
    resolution; and

  • 5“required information” means—

    (a)

    an explanation of the incompatibility which the order (or
    proposed order) seeks to remove, including particulars of the
    relevant declaration, finding or order; and

    (b)

    a statement of the reasons for proceeding under section 10
    10and for making an order in those terms.

Calculating periods

6 In calculating any period for the purposes of this Schedule, no account is to
be taken of any time during which—

(a) Parliament is dissolved or prorogued; or

(b) 15both Houses are adjourned for more than four days.

Section 6

SCHEDULE 6 Statements of compatibility

1 (1) A Minister of the Crown in charge of a Bill in either House of Parliament
must, before Second Reading of the Bill—

(a) 20make a statement to the effect that in his view the provisions of the
Bill are compatible with the provisions of the Code (“a statement of
compatibility”); or

(b) make a statement to the effect that although he is unable to make a
statement of compatibility the government nevertheless wishes the
25House to proceed with the Bill.

(2) The statement must be in writing and be published in such manner as the
Minister making it considers appropriate.

Section 7

SCHEDULE 7 Amendment to the Parliament Act 1911

1 30In section 2(1) of the Parliament Act 1911 the words “or a Bill seeking to
amend the Local Government Independence Code Act” shall be inserted
after the words “maximum duration of Parliament beyond five years”.

Section 8

SCHEDULE 8 Amendments to other enactments

1 35Chapter 4ZA and Chapter 4A of Part 1 of the Local Government Finance Act
1992 are repealed.

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2 In Section 1 of the Localism Act 2011, after subsection (6) there is inserted—

(6A) The general power of competence includes the power to raise
revenue through any method including although not limited to local
taxation, levies and duties.

3 5Schedule 6 of the Localism Act 2011 is repealed.

Section 9

SCHEDULE 9 Review of Legislation

Duty to review provisions in primary and subordinate legislation

1 (1) The Secretary of State shall, within six months of the passing of this Act,
10make provision by Order to provide for the review of all provisions in pre-
commencement primary and subordinate legislation to assess their
compatibility with the provisions of the Code.

(2) The order must include—

(a) provision requiring the review of the compatibility of pre-
15commencement legislation to be completed within a five year period,
commencing with the date of passing of this Act;

(b) provision for incompatible pre-commencement legislation to cease
to have effect no later than the end of a seven year period,
commencing with the date of passing of this Act.

(3) 20The provision that may be made by virtue of subsection (2)(a) includes
provision requiring the person to consider whether the objectives which it
was the purpose of the legislation to achieve remain appropriate and, if so,
whether they could be achieved in another way.

2 (1) In this schedule, “pre-commencement legislation” means a provision that—

(a) 25is contained in any other Act passed no later than the end of the
Session in which this Act is passed, or

(b) is contained in an instrument made under any other Act and comes
into force before the commencement of section 1 of this Act.

(2) Subordinate legislation under paragraph 1 may make transitional,
30consequential, incidental or supplementary provision or savings in
connection with such provision.