Clause 98 - Fixed penalties for breach of byelaws

262.     This clause inserts new sections 237A to 237C, and new section 237F, into the Local Government Act 1972.

263.     New section 237A empowers the Secretary of State to make regulations prescribing classes of byelaws which may be enforced by means of fixed penalty notices. Where a byelaw is within such a class, subsection (3) provides for an authorised officer of an authority to issue a fixed penalty notice offering a person the opportunity of discharging liability for conviction for a byelaw offence by the payment of the amount specified in the notice. Subsection (4) provides that, following receipt of a fixed penalty notice, the recipient has fourteen days in which to pay the specified fine, and thus avoid attending the Magistrates' Court in respect of the offence. Subsection (6) provides that the fixed penalty notice must give sufficient information to the recipient so that the nature of the offence is clear. Subsection (12) makes provision about which persons are authorised to issue fixed penalties. "Authorised officers" will be restricted to those authorised in writing by the authority to carry out the function. This may be a direct employee of the authority, or a person, or an employee of a person, with whom the local authority has a contract for the enforcement of byelaws.

264.     New section 237B provides for the level of fixed penalties for breach of byelaws. The clause confers on the Secretary of State the power to make regulations specifying a range within which the amount of fixed penalty must fall. Where a range has been specified, local authorities may choose to set an amount within that range. Where no range has been set, local authorities will have freedom to set the penalty. Where the local authority does not specify a penalty for breach of a byelaw, the clause provides for a default amount of £75. The clause empowers the Secretary of State to make an order to change the default amount as necessary, so that the level remains in line with similar low-level offences.

265.     New section 237C gives an authorised officer who proposes to issue a fixed penalty notice for breach of a byelaw the power to require the person to whom he is giving the notice to give their name and address. A person who fails to give their name and address or gives a false name and address will commit an offence.

266.     New section 237F makes supplementary provision about regulations and orders under section 237A and 237B.

Clause 99 - Use of fixed penalty receipts

267.     This clause requires local authorities, when considering how to use their fixed penalty receipts, to have regard to the desirability of using the money in combating nuisances governed by byelaws for which fixed penalty notices may be issued. This means that local authorities would be required to consider whether fixed penalty receipts should be used generally in combating such nuisances. It would not be necessary for receipts to be used only towards combating the nuisance the relevant byelaw is concerned with.

Clause 100 - Guidance

268.     This clause gives the Secretary of State the power to issue guidance in relation to the new procedures for making byelaws, the use of fixed penalties to enforce byelaws and on related matters. This will include guidance on consulting on and publicising new byelaws and good practice in relation to issuing fixed penalty notices.

Clause 101 - Community Support Officers

269.     This clause amends the Police Reform Act 2002 so that if local authorities and the chief police officer for the area agree, community support officers and other "accredited persons" under that Act may issue fixed penalty notices for breach of local authority byelaws. Before a community support officer or accredited person will be able to do this, the chief police officer will have to designate them as having that function and the byelaw to which the fixed penalty notice relates will have to appear on a list agreed between the chief police officer and the local authority.

Clause 102 - Revocation of byelaws

270.     This clause gives local authorities, the Greater London Authority, Transport for London and metropolitan county passenger transport authorities the power to make a byelaw revoking a byelaw it has previously made where, for some reason, there is no other power to do so. This will allow local authorities to "tidy up" unnecessary and obsolete provisions.

271.     This clause also confers a power on the Secretary of State and on Welsh Ministers to make an order revoking a byelaw where it appears to have become obsolete or unnecessary. The intention is that this power will only be used where the power to revoke the byelaw, or the identity of the authority which should otherwise revoke the byelaw, is unclear.

PART 7: BEST VALUE

Introduction

272.     Part 7 of the Bill amends the "best value" regime, ie. the regime under which best value authorities are required to make arrangements to secure continuous improvement in the way in which their functions are exercised, having regard to a combination of economy, efficiency and effectiveness (see Part 1 of the Local Government Act 1999). "Best value authorities" include most local authorities, police authorities and fire and rescue authorities.

273.     Part 7 removes certain aspects of the best value regime, in particular the requirement on best value authorities to carry out best value reviews. It places a new duty on English best value authorities to actively involve representatives of local people in the provision of local services. It provides the Secretary of State and Welsh Ministers with a new power to issue guidance to best value authorities on the general duty of best value. It also provides Ministers of the Crown and Welsh Ministers with power to issue grants to promote or facilitate the economic, efficient and effective provision of services by best value authorities.

274.     The Bill confers a Measure-making power on the National Assembly for Wales in relation to best value (see clause 165 and Schedule 14).

Best value authorities

Clause 104 - Parish councils and community councils not to be best value authorities

275.     Clause 104 amends the definition of local authorities in England and Wales that are best value authorities for the purposes of Part 1 of the Local Government Act 1999.

276.     Subsection (1)(a) removes parish councils and parish meetings from the definition of "local authorities". This has the effect that parish councils and parish meetings will no longer be subject to the best value duties set out in the Local Government Act 1999.

277.     In practice, an Order ¹ made by the Secretary of States under section 2(5) of the Local Government Act 1999 exempted all English parish councils and meetings, except those whose budgeted income for 1997, 1998 and 1999 was over £500,000, from the duties set out in sections 3 to 6 of the Local Government Act 1999. The Bill will disapply the best value duties for the 41 larger English parish councils.

¹ The Local Government Best Value (Exemption)(England) Order 2003 - SI 2003/3343

278.     Subsections (1)(b) and (c) make equivalent provision for Wales, where the equivalent of a parish council is a community council. They provide that a community council is not a best value authority. An Order ² made by the National Assembly for Wales under section 2(5) of the Local Government Act 1999 exempted all community councils with an income of under £1,000,000 in 1998 and 1999 from any of the duties in sections 3 to 6 of the Act. In practice, this exempted all community councils from the best value regime, as none had an income in excess of that sum.

² The Local Government (Best Value) (Exemption) (Wales) Order 2000, SI 2000/1029

279.     Subsection (2) removes local precepting authorities ³ from the list of authorities and bodies to which the Secretary of State may by order extend the best value regime. In effect it removes the ability of the Secretary of State and Welsh Ministers to re-apply the best value regime to parish councils, parish meetings and community councils or to apply it to other local precepting authorities, such as charter trustees.

³ As defined in section 39(2) of the Local Government Finance Act 1992.

Duties of best value authorities

Clause 105 - Guidance about general best value duty

280.     Clause 105 extends the existing power of the Secretary of State and the National Assembly for Wales to give guidance to best value authorities. At present, guidance can be given about the consultation of local people by best value authorities about how the authorities fulfil the general best value duty set out in section 3 of the Local Government Act 1999. The Bill confers a more general power to issue statutory guidance to best value authorities about how to fulfil that duty.

Clause 106 - Involvement of local representatives

281.     This clause inserts a new section 3A in the Local Government Act 1999. Subsection (1) of that new section places a duty on best value authorities (apart from police authorities and Welsh best value authorities) to involve representatives of local persons in the exercise of their functions, where they consider that it is appropriate to do so. Subsection (1) provides for best value authorities to determine if and how representatives should be involved, having regard to any guidance issued by the Secretary of State (subsection (5)). It sets out that best value authorities will need to consider each of three ways of securing the involvement of representatives of local people in the exercise of their functions, namely informing them, consulting them and involving them in other ways.

282.     Subsection (2) establishes that the duty to involve local representatives does not grant best value authorities any additional powers. This subsection also clarifies that, where there is a conflict between this duty and another duty, the latter takes precedence.

283.     Subsection (3) sets out those best value authorities who are not subject to the new duty. It also enables the Secretary of State to provide additional exemptions from the duty by secondary legislation subject to the negative resolution procedure.

284.     Subsection (6) clarifies what is meant by certain terms, including "local persons" and "representatives".

Clause 107 - Abolition of performance indicators etc. except for Welsh authorities

285.     Clause 107 provides that sections 4 and 6 of the Local Government Act 1999 no longer apply to best value authorities in England (including police authorities) or to police authorities in Wales, and in so doing removes (a) the power of the Secretary of State in section 4(1) to specify performance indicators and standards for such authorities; (b) the duty in section 4(5) on such authorities to meet such standards; (c) the duty in section 6(1) on such authorities to publish best value performance plans; and (d) the power of the Secretary of State to issue statutory guidance in respect of performance plans.

286.     Sections 4 and 6 will continue apply to Welsh best value authorities (ie all best value authorities in Wales other than police authorities). The power in section 4(1) to specify performance indicators and standards, and the powers as regards best value performance plans in section 6, will continue to be available to the Welsh Ministers as regards such authorities. The Assembly will be able to amend or replace these provisions, or to confer power on Welsh Ministers to do so, using the framework power conferred by Schedule 14 to the Bill.

Clause 108 - Abolition of best value performance reviews

287.     Clause 108 removes the statutory requirement in section 5 of the Local Government Act 1999 for best value authorities to undertake best value performance reviews and the power of the Secretary of State and the Assembly to issue guidance on how best value authorities conduct such a review.

Powers to modify enactments etc

Clause 109 - Consultation with and consent of Welsh Ministers

288.     Clause 109 makes certain changes to the Secretary of State's powers under section 16 of the Local Government Act 1999 to modify enactments obstructing compliance with best value and under section 97 of the Local Government Act 2003 to modify enactments in connection with charging or trading. In particular, it precludes the Secretary of State amending, modifying or removing the application of any Assembly Measures, Assembly Acts or subordinate legislation made by Welsh Ministers or the Assembly without the consent of the Welsh Ministers or the Assembly (as appropriate), except where the provision is consequential on or incidental to other provisions.

Clause 110 - Power of Welsh Ministers to modify enactments obstructing best value etc

289.     Clause 110 confers on the Welsh Ministers a power similar to that in section 16 of the Local Government Act 1999 to modify enactments obstructing compliance with best value, and removes from the Secretary of State the power to do so in relation to Welsh best value authorities.

290.     Subsection (1) provides that the Secretary of State's existing power in section 16 is not to be exercisable as regards Welsh best value authorities (that is, all best value authorities in Wales except police authorities).

291.     Subsection (2) inserts a new section 17A in the Local Government Act 1999 which in effect gives the Welsh Ministers similar powers to modify enactments as section 16 currently gives to the Secretary of State. It allows the Welsh Ministers to modify or exclude the effect of enactments when, in their view, such enactments prevent or obstruct compliance with the best value duties by Welsh best value authorities. It also allows the Welsh Ministers to confer on Welsh best value authorities additional powers which appear to them to facilitate such compliance. New section 17A provides that orders cannot make any provision which could not be made by an Assembly Measure. It also provides that an order under new section 17A must be approved by a resolution of the Assembly before it can be made (unless it merely extends or modifies a previous such order).

292.     Subsection (2) also inserts a new section 17B in the Local Government Act 1999, setting out the procedures which the Welsh Ministers must follow when making an order under the new section 17A. It requires the Welsh Ministers to consult best value authorities and others with an interest, and to lay a summary of their proposals before the Assembly for a minimum of 60 days (excluding periods when the Assembly is in recess) before the Assembly considers the draft order. These provisions are similar to those that apply to the Secretary of State under section 17 of the Act.

293.     Clause 110 will come into force two months after Royal Assent. Subsection (3) makes transitional provisions to cover the period before clause 112, which adds a definition of the term 'Welsh best value authority' to the Local Government Act 1999, comes into force.

Other

Clause 111 - Grants to promote or facilitate exercise of functions by best value authorities

294.     Clause 111 inserts new sections 36A and 36B into the Local Government Act 2003 ("the 2003 Act"). Those sections enable grants to be paid to a person for the purpose of improving the performance of best value authorities. Any grant can be paid subject to conditions (sections 36A(5) and (6) and 36B(4) and (5)).

295.     The powers are exercisable by a Minister of the Crown ("a Minister") and, in relation to Welsh best value authorities, by Welsh Ministers (sections 36A(1) and 36B(1)). Treasury consent is required for any grant made by a Minister (section 36A(2)(a)). The consent of Welsh Ministers is also required where grant is given by a Minister as regards the exercise of functions by a Welsh best value authority (section 36A(2)(b)).

296.     Clause 111 will come into force two months after Royal Assent. If clause 112 (which introduces the term "Welsh best value authority" into Part 1 of the Local Government Act 1999) has not been commenced at that time, clause 111(2) ensures that new sections 36A and 36B will have effect by reference to the existing provisions in the Local Government Act 1999 until such time as clause 112 is commenced.

297.     The definition of best value authorities in section 36A(7) is slightly broader than the definition used elsewhere in the 2003 Act, since it includes the Greater London Authority exercising functions otherwise than through the Mayor.

298.     It is envisaged that the new powers will primarily be used to improve the performance of best value authorities in situations where a grant cannot be paid under section 31 of the 2003 Act (power to pay grants to local authorities), or where for timing reasons grant cannot be paid under section 78 of the Local Government Finance Act 1988 (duty for Secretary of State to pay grants to receiving authorities and specified bodies) or section 84E of the same Act (which contains analogous functions as regards Wales).

Clause 112 - Best value: minor and consequential amendments

299.     Clause 112 defines the term "Welsh best value authorities" for the purposes of the Local Government Act 1999 and introduces Schedule 8, which makes further minor and consequential amendments.

300.     The amendments made by subsection (1) provide that all authorities which are currently "best value authorities in Wales" for the purposes of Part 1 of the Local Government Act 1999 will be "Welsh best value authorities", apart from police authorities (since responsibility for policing is generally not devolved to Wales). Welsh best value authorities would be subject to subordinate legislation and guidance made or issued by the Welsh Ministers under that Part.

PART 8: LOCAL SERVICES: INSPECTION AND AUDIT

Introduction

301.     Part 8 of the Bill makes provision about the inspection and audit of local services. In particular, clauses 115 and 116 of and Schedule 10 to the Bill provide for the merger of the inspection functions of the Benefit Fraud Inspectorate (in relation to English local authorities) with the Audit Commission. The intention is that this will avoid duplication of effort and reduce inspection burdens on local authorities.

302.     Clauses 117 and 118 and Schedule 11 make provision about the interaction between the Audit Commission and other authorities. Clauses 121 to 125 and 128 amend the Commission's powers to produce and publish studies and reports. Clauses 126-127 update and amend several of the Commission's powers relating to audit. Clauses 129 and 130 relax the restrictions on disclosure of information obtained by the auditor or the Audit Commission.

CHAPTER 1 - CONSTITUTION OF THE AUDIT COMMISSION

Clause 113 - Membership

303.     This clause reduces the number of members of the Audit Commission. At present the Commission must comprise 15 to 20 members. The Bill reduces this requirement to 10 to 15 members.

Clause 114 - Change of name

304.     This clause removes the reference to Wales in the Audit Commission's official legal title. As of 1^st April 2005 the Audit Commission ceased to operate in Wales, with the exception of a very limited residual power relating to its national studies function. Its core functions in Wales are now carried out by the Auditor General for Wales.

CHAPTER 2 - AUDIT COMMISSION AND AUDITORS: FUNCTIONS AND PROCEDURE

Benefits inspections

Clause 115 - Powers of the Audit Commission relating to benefits

305.     This clause relates to the inspection of the administration of housing and council tax benefit administration by local authorities in England, which will be taken over by the Audit Commission, following its merger with the Benefit Fraud Inspectorate.

306.     This clause amends the Local Government Act 1999 to provide that if, following a best value inspection, the Audit Commission has concerns about the administration of housing and council tax benefit by a local authority it is required to send a report on its findings to the Secretary of State, who can then take action if appropriate.

Clause 116 - Benefits Fraud Inspectorate: transfers to Audit Commission

307.     This clause enables the Secretary of State to make transfer schemes transferring to the Audit Commission property, rights and liabilities relating to the inspection of the administration of housing benefit and council tax benefit by the Benefits Fraud Inspectorate.

308.     A transfer scheme under this clause may only transfer employees if the employee and the Audit Commission consent to the transfer. Schedule 10 to the Bill makes further provision about transfer schemes.

Interaction with other authorities

Clause 117 - Interaction of the Audit Commission with other authorities

309.     This clause introduces Schedule 11 to the Bill, which inserts a new Schedule 2A in the Audit Commission Act 1998, which makes provision about the functions of the Audit Commission in relation to inspections and about the Audit Commission's interaction with other inspection authorities, public bodies and others.

310.     The new Schedule 2A includes provision enabling the Audit Commission to provide advice and assistance to public bodies, which replaces the existing provision in section 37 of the Audit Commission Act 1998 (power to provide advice and assistance to certain inspection authorities).

Clause 118 - Interaction of benefits inspectors with the Audit Commission

311.     This clause relates to persons who are authorised by the Secretary of State under section 139A of the Social Security Administration Act 1992 to carry out inspections of the administration of housing benefit and council tax benefit. The Secretary of State is not expected to use the power to authorise such people often once the Audit Commission takes on the bulk of such inspections.

312.     This clause requires such persons to produce documents setting out what inspections they expect to carry out and how they expect to carry them out, after consultation with the Audit Commission. It requires them to send copies of the final documents to the Audit Commission and the Secretary of State. It requires such persons to co-operate with the Audit Commission. It also enables them to act jointly with the Audit Commission.

Inspections and audit

Clause 119 - Powers of auditors and inspectors to obtain information

313.     This clause clarifies the powers of auditors and the Audit Commission to obtain access to documents and information, under section 6 of the Audit Commission Act 1998 (financial audit) and section 11 of the Local Government Act 1999 (best value inspections). In particular, it enables them to inspect computers on which documents are held.

Clause 120 - Inspections of best value authorities

314.     This clause extends the Audit Commission's existing power to inspect best value authorities' compliance with their duties under Part 1 of the Local Government Act 1999 (best value). It enables the Audit Commission to carry out general inspections of the performance of best value authorities.

Clause 121 - National studies

315.     Clause 121 adds to the list of bodies that the Audit Commission must consult on its proposals for national studies under sections 33 and 34 of the Audit Commission Act 1998. The amendment requires the Audit Commission to consult the Secretary of State to ensure relevant Government Departments are consulted on proposed national studies. The Audit Commission retains a limited residual power in Wales in relation to national studies. The amendments also provides that where a proposed study relates to a body in respect of which the Welsh Ministers may exercise functions, the Audit Commission must also consult Welsh Ministers

Clause 122 - Studies at request of particular bodies

316.     Sections 35 and 35A of the Audit Commission Act 1998, which allowed the Audit Commission to carry out and charge for consultancy studies at the request of audited bodies, are repealed by this clause. This is intended to reduce duplication among Government sponsored bodies carrying out similar voluntary improvement work within audited bodies (particularly local authorities).