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These notes refer to the Local Government and Public Involvement in Health Bill as introduced in the House of Commons on 12th December 2006 [Bill 16]
LOCAL GOVERNMENT AND PUBLIC INVOLVEMENT IN HEALTH BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Local Government and Public Involvement in Health Bill as introduced in the House of Commons on 12th December 2006. They have been prepared by the Department for Communities and Local Government, together with the Wales Office, in order to help the reader of the Bill and to assist debate. They do not form part of the Bill and have not been endorsed by Parliament.
2. These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the clauses. Therefore, where a clause or a part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND
3. The Local Government and Public Involvement in Health Bill gives effect to the Government's proposals for reform of the local government system in England and for reform of the current arrangements for patient and public involvement in the provision of health and social care services. It also gives effect to a commitment to expand the legislative competence of the National Assembly for Wales ("the Assembly") in the field of local government.
4. In July 2004 an initial discussion document 'The future of local government - developing a 10 year vision' was published by the Office of the Deputy Prime Minister (now known as the Department for Communities and Local Government) to launch the debate on the future of local government between central government, local government and other stakeholders under the heading local:vision. Between July 2004 and February 2006 numerous documents under the local:vision heading were published setting out ideas for discussion and consultation.
Bill 16—EN 54/2
5. The Local Government White Paper 'Strong and Prosperous Communities', published on 26th October 2006, was a response to the local:vision consultation. This Bill follows from that White Paper.
6. The Department of Health instigated a review of patient and public involvement in the provision of health services in August 2005. In January 2006 the Department published the White Paper 'Our health, our say, our care: a new direction for community services". Following publication of the White Paper, an Expert Panel was established in February 2006 in order to consider the evidence that had been gathered. The Expert Panel published its findings in July 2006.
7. On 13th July 2006 the Department of Health published the consultation document 'A Stronger Local Voice' setting out the proposed changes. Since then there have been extensive discussions with stakeholders.
STRUCTURE OF THE BILL
8. The Bill is set out as follows:
- Part 1 - Structural and Boundary Change in England
Chapter 1 - Structural and Boundary Change
Chapter 2 - Control of Disposals etc
- Part 2 - Elections in England
- Part 3 - Executive Arrangements for England
Chapter 1 - Parishes
Chapter 2 - Power to Promote Well-Being
Chapter 3 - Reorganisation
- Part 5 - Co-operation of English authorities with Local Partners etc
Chapter 1 - Local Area Agreements
Chapter 2 - Overview and Scrutiny Committees
- Part 8 - Local Services: Inspection and Audit
Chapter 1 - Constitution of the Audit Commission
Chapter 2 - Audit Commission and Auditors: Functions and Procedure
Chapter 3 - Audit Commission and Auditor General for Wales: disclosure of information
- Part 9 - Ethical Standards:
Chapter 1 - Conduct of Local Authority Members
- Part 10 - The Valuation Tribunal for England
??????????????? ???Part 11 - Patient and Public Involvement in Health and Social Care
- Part 12 - Powers of National Assembly for Wales
- Part 14 - Final provisions
TERRITORIAL EXTENT
9. The Bill in general extends to England and Wales only. Certain provisions of the Bill make amendments to other legislation and where appropriate these amendments have the same extent as the legislation amended; if this is the case provision is made by clause 174(3) (Extent). In addition, the power of the Secretary of State under clause 173 to make an order containing amendments, repeals or revocations for purposes connected with the Bill extends also to Scotland and Northern Ireland. The extent clause itself, and clauses 175 (Commencement) and 176 (Short Title) extend also to Scotland and Northern Ireland.
10. The Scottish Parliament's consent is not required for any of the Bill's provisions. Because the Sewell Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if amendments were introduced that related to such matters the consent of the Scottish Parliament would be sought for them.
TERRITORIAL APPLICATION: WALES
11. Some provisions of the Bill apply in relation to England and Wales, but much of it applies in relation to England only. The Bill does however give the Assembly "framework powers" to make provision in relation to Wales on a range of local government matters. These powers are conferred by amendments to Schedule 5 to the Government of Wales Act 2006 (see further the Commentary on Part 12 of the Bill).
12. Parts 6 and 7 confer powers on the Welsh Ministers in respect of Best Value and Byelaws. This is explained further in the Commentary on Parts 6 and 7.
COMMENTARY ON SECTIONS
PART 1: STRUCTURAL AND BOUNDARY CHANGE IN ENGLAND
Introduction
13. Part 1 of the Bill provides for the process of making structural and boundary change to local government areas in England. It provides for a means by which an area where there are two-tiers of local government can be reorganised so that there is a single tier of local government. It also provides for a process by which the boundaries of local government areas can be altered. A two-tier area is an area where some local authority functions are undertaken by a county council and some by a district council. A single tier area is an area in which all local authority functions are undertaken by a single (unitary) authority.
CHAPTER 1: STRUCTURAL AND BOUNDARY CHANGE
Change from two tiers to single tier of local government
Clause 1 - "principal authority" and "single tier of local government"
14. Clause 1 defines the term "principal authority" as either a district or county council in England. These are therefore the authorities which the Secretary of State may invite or direct to make proposals for structural change (under clause 2).
15. The clause also explains what is meant by "a single tier of local government for an area".
Clause 2 - Invitations and directions for proposals for single tier of local government.
16. Clause 2 allows the Secretary of State to invite or direct a principal authority to make a proposal for a single tier of local government which includes the area covered by that authority. A proposal can either be a Type A, B or C proposal or a combined proposal.
- A Type A proposal is one which covers the whole of a county area and is based on existing county boundaries.
- A Type B proposal is one which covers one or more districts in a county area and is based on existing district boundaries.
- A Type C proposal is one which proposes the combination of a whole county or one or more districts in that county with an adjoining county or counties, or district(s) and therefore proposes an area which crosses one or more existing county boundaries.
- A combined proposal is one which is either a combination of both Type B and Type C proposals or which combines two or more Type B proposals or two or more Type C proposals. However, a proposal is not a combined proposal if it includes any Type B and C proposals which are alternatives to each other.
17. Subsection (6) defines, for the purposes of this clause, "the county concerned" as the county area within which the county or district council submitting a proposal lies.
18. Subsection (8) sets out that an invitation or direction from the Secretary of State may either specify the type of proposal invited or required or allow the authority to choose the type of proposal it submits.
Clause 3 - Invitations, directions and proposals: supplementary
19. This clause provides that the Secretary of State may only direct an authority to make a proposal for a single tier of local government where he believes that it would be in the interests of effective and convenient local government.
20. Subsection (4) sets out that a proposal recommending a single tier of local government for an area can only be made where either the whole or part of that area is currently two-tier (as defined by clause 23(2)).
21. Subsection (5) requires an authority to have regard to any guidance issued by the Secretary of State when submitting a proposal.
22. Subsection (6) specifies that where an invitation or direction is given to more than one authority, an authority can make a proposal either on its own or jointly with another authority.
23. Subsection (7) enables an invitation or direction to be varied or revoked by the Secretary of State.
Clause 4 - Procedure on receipt of proposals
24. This clause provides for the procedure to be followed by the Secretary of State upon receipt of a proposal received in response to an invitation or direction.
25. Subsection (2) establishes that unless a proposal has been submitted jointly by every authority affected by it, the Secretary of State must consult every other authority affected by the proposal, (other than the authority or authorities submitting it) and any other person the Secretary of State believes to have an interest.
26. Where a proposal is submitted jointly by every authority affected by it the Secretary of State may consult any other person he believes to have an interest.
27. Subsection (4) defines an authority "affected by" a proposal as one whose area or any part of whose area falls within the area that the proposal suggests should have a single tier of government.
28. Subsection (5) provides that the Secretary of State may request the Boundary Committee's advice on any matter relating to the proposal no later than the date specified.
29. Subsection (6) enables the Secretary of State to substitute a later date for the receipt of such advice.
Clause 5 - Boundary Committee for England's powers
30. This clause allows the Boundary Committee to provide the advice requested under clause 4(5) and also allows the Committee, where such advice is provided, to do one of the following:
- recommend that the Secretary of State implements the proposal;
- recommend that the Secretary of State does not implement the proposal;
- make an alternative proposal to the Secretary of State.
31. Subsection (5) sets out that where the Boundary Committee makes an alternative proposal, it must include the whole or part of the county which was the relevant county in relation to the proposal on which the Boundary Committee was asked for advice.
32. Subsection (7) requires the area specified in an alternative proposal not to extend into an area that is not currently a local government area. A local government area is defined in clause 23(1) as a county or district in England or a London borough. This means that the area specified in the alternative proposal may not, for example, extend into Wales or the City of London. Subject to that, the area specified can be any area, i.e. it does not have to follow existing county or district boundaries.
Clause 6 - Boundary Committee's procedure
33. When the Boundary Committee is asked for advice by the Secretary of State in relation to a proposal, it may request any additional information from an authority that it may require in relation to any of its functions under clause 5. The authority must provide the information if requested to do so by such date as the Boundary Committee may specify.
34. Subsection (2) requires that in making a recommendation or alternative proposal the Boundary Committee must have regard to guidance from the Secretary of State.
35. The recommendation or alternative proposal must be made on or before the relevant date. This is the date set by the Secretary of State for the receipt of advice under clause 4(5) or, if the date is later revised, under clause 4(6).
36. Subsection (4) establishes that where the Boundary Committee is minded to make an alternative proposal, it must publish a draft of the proposal and ensure that those persons that may have an interest in the proposal are informed of the proposal and of the length of time that they have to make representations on the proposal to the Committee.
37. Subsection (5) requires the Boundary Committee to take into account any representations that it receives within the specified period and where the Committee makes any proposal to the Secretary of State it must inform all persons who made representations in relation to the proposal and of the length of time that they have to make representations on the proposal to the Secretary of State. This will be four weeks beginning with the date set by the Secretary of State for the receipt of advice under clause 4(5) or, if the date is later revised, under clause 4(6).
Clause 7 - Implementation of proposals by order.
38. This clause allows the Secretary of State to implement proposals he receives by order. This also applies to alternative proposals made by the Boundary Committee. Proposals may be implemented with or without modification. The Secretary of State may also decide to take no action on a proposal.
39. The Secretary of State may not make a decision or an order until he has carried out any consultation on the proposal under clause 4 and where he has requested advice on a proposal from the Boundary Committee he must wait six full weeks from the date specified in the request for advice (or a later date if this date is then substituted) before making a decision or an order.
Boundary change
Clause 8 - Review by Boundary Committee of local government areas
40. Clause 8 allows the Boundary Committee to conduct a review of one or more local government areas and as a result recommend a boundary change to the Secretary of State. The Boundary Committee may conduct this review either on its own initiative or at the request of the Secretary of State or a local authority.
41. The Boundary Committee's recommendations under subsection (2) must seem to it desirable having regard to the need to secure effective and convenient local government and the need to reflect the identities and interests of local communities.
42. Subsection (3) defines the term "boundary change" as an alteration of a local government area boundary, and/or the abolition of a local government area, and/or the constitution of a new local government area.
43. Subsection (4) specifies the type of recommendations for change that are not allowed under this clause. These are:
- alteration of a boundary of a single tier area or London borough which will result in the abolition of a two-tier area;
- alteration of a two-tier area which will result in the abolition of a single tier area or London borough;
- the constitution of a new local government area and resultant abolition of an existing local government area where the new area includes a combination of the whole or part of a single tier area, or London borough, and the whole or part of a two-tier area;
- the alteration of a local government area or creation of a new local government area that would extend into an area that is not currently a local government area. This means that the recommendation for boundary change may not extend an area into Wales, the City of London or the Temples.
44. Subsection (5) requires the Boundary Committee to have regard to any guidance issued by the Secretary of State when undertaking a review.
45. Subsection (6) requires a local authority, where requested to do so, to provide any information that the Boundary Committee may require in undertaking a review by such date as the Boundary Committee may specify.
Clause 9 - Boundary Committee's review: consultation etc
46. This clause sets out the procedure to be followed by the Boundary Committee when carrying out a review of a local government area.
47. Subsection (2) requires the Boundary Committee to consult the council of the local government area that is being reviewed and other local authorities, parish councils or other bodies it believes to have an interest.
48. Subsection (3) provides that where the Boundary Committee is minded to make a recommendation, it must publish a draft of the recommendation and ensure that those persons that may have an interest in the proposal are informed of the proposal and of the length of time that they have to make representations on the recommendation to the Committee.
49. Subsection (4) requires the Boundary Committee to take into account any representations that it receives within the specified period. Where the Committee makes a recommendation to the Secretary of State it must inform all persons who made representations in relation to the recommendation. It must also inform them that if they wish to make representations to the Secretary of State about the proposal they have four weeks from the date that the recommendation was sent by the Boundary Committee to the Secretary of State.
Clause 10 - Implementation of recommendations by order
50. Clause 10 provides that, following the recommendation by the Boundary Committee to the Secretary of State, he may implement the recommendation with or without modification by order. The Secretary of State may also decide to take no action or request a further review. The Secretary of State must allow 6 weeks from the date that the recommendation was sent to him before making an order, a decision to take no action or a decision to request a further review. This is to allow time for representations to be made directly to the Secretary of State and for him to consider them.
Implementation of changes
Clause 11 - Implementation orders: provision that may be included
51. This clause provides for the matters that may be included in an order when the Secretary of State implements a proposal or a recommendation under clause 7 or 10, (i.e. a proposal or recommendation for structural or boundary change).
52. Subsections (3) and (4) set out these matters which include, for example, the constitution of a new local government area and the establishment of an authority as a county council, district council or London borough council for a local government area. The Secretary of State may also make provision in relation to electoral matters as defined in clause 12.
53. Subsection (5) provides that the "establishment" of a county council or a district council includes increasing the remit of an existing authority by an existing district council becoming the county council for an area or vice versa.
54. Subsections (6) and (7) enable the Secretary of State to implement a proposal with such modifications as to provide a single tier of local government for an area which includes all or part of an area in the proposal but which is not an area which itself could have been specified. This gives the Secretary of State for example the ability to modify a proposal for a single tier of local government by changing the area so as to take account of recommendations which might be made for boundary change by the Boundary Committee for the same area.
Clause 12 - Provision relating to membership etc of authorities
55. This clause defines what is meant by "electoral matters" in clause 11(4). The Secretary of State may appoint existing councillors as councillors to the new authorities for a transitional period until the first elections for those councils are held. He may also make provision for elections to the new authority. This is in case the Electoral Commission is not able to carry out a review and put in place electoral arrangements for the new authority, under Part 2 of the Local Government Act 1992, before the authority takes on its full range of functions.
56. Subsection (2) defines "a new local authority" as referred to under clause 12 (1)(j) to (l) as one established by order under clause 7 or 10. This includes an existing authority taking on different functions, that is a county council taking on district functions or vice versa. It also defines "a transitional period" as the time before members elected at the first election of the new authority come into office.
57. Subsection (4) enables a non metropolitan county to return more than one councillor for an electoral division and as a result disapplies section 6(2)(a) of the Local Government Act 1972 (c.70) which provides that one councillor shall be returned per electoral division in a county area.
58. Subsection (5) requires the Electoral Commission, as soon as practicable following an order being made under clause 7 or 10, to decide whether to use its power to direct the Boundary Committee to conduct an electoral review.
59. Subsection (6) allows an order made by the Electoral Commission under section 17 of the Local Government Act 1992 to revoke an order made under clause 7 or 10 of this Act. The Electoral Commission may make an order under section 17 of the Local Government Act 1992 to provide for the electoral arrangements in that area.
Clause 13 - Implementation Orders: further provision
60. This clause allows an order under clause 7 or 10 to also make any other incidental, consequential, transitional or supplementary provision. Examples of these are set out in clause 15.
61. Subsection (3) provides that such incidental, transitional or supplementary provision included in an order may relate either to provisions in that order or to provisions of a previous order under clause 7 or 10. This means that the Secretary of State may establish a new authority and appoint councillors to it to make decisions during the shadow period of that authority and in a separate order make provision for the first election of councillors to that authority.
62. Subsection (4) establishes that under clause 11(4)(g), (the exercise of the Secretary of State's power to alter police areas) he must not divide a single tier county, or district, or London Borough between two or more police areas.
Clause 14 - Regulations for supplementing orders
63. This clause allows the Secretary of State by regulation to make any other incidental, consequential, transitional or supplementary provision in consequence of an order under clause 7 or 10 or to give full effect to such an order. Clause 15 gives examples of the kind of provision which can be made.
Clause 15 - Incidental etc provision in orders or regulations
64. This clause gives examples of the incidental, consequential, transitional or supplementary provision which may be made including provision for the transfer of staff and with respect to charter trustees.
65. Subsection (2) enables that an order under clause 7 or 10 or regulations under clause 14 may for incidental, consequential, transitional or supplementary purposes modify, exclude, apply, repeal or revoke an enactment.
66. Subsection (3) defines an "enactment" and makes it clear that it includes a charter, and an enactment in the present Bill or in an Act passed after the Bill receives Royal Assent, and any instrument made under such an Act.
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