House of Commons - Regulatory Reform

Select Committee on Regulatory Reform First Report

3 Assessment of the draft Order

10. Our remit is to examine the draft Order against the criteria specified in Standing Order No. 141(3) and then, in the light of that examination, to report whether the draft Order should be proceeded with in the terms of the draft under s18(3) of the Act; or a revised draft Order should be laid under s18(7) of the Act; or no statement under s18(3) or revised draft Order under s18(7) should be laid.

11. Our analysis is set out below. Where a criterion specified in Standing Order No. 141(3) is not discussed, this indicates that we had no concerns about it.

Removal and reduction of burdens

12. A burden is defined in s1(3) of the LRRA 2006 as any of the following: a financial cost; an administrative inconvenience; an obstacle to efficiency, productivity or profitability; or a sanction, criminal or otherwise, which affects the carrying on of any lawful activity. Under Standing Order 141(3)(b) we are required to consider whether provision in the draft Order serves the purpose of removing or reducing a burden, or the overall burdens.

CANCER TREATMENT ADVERTISEMENTS

13. Section 4 of the Cancer Act 1939 provides that, subject to certain defences, it is an offence to take part in the publication of any advertisement offering treatment, prescribing a remedy, or giving advice in connection with treatment, for cancer. Section 4(6) requires a local authority to obtain the Attorney General's consent before instituting such a prosecution and, subject to that consent, s4(7) of the Act imposes a duty on county councils and county borough councils to bring a prosecution.

14. The draft Order removes the requirement to obtain the Attorney General's consent. It also includes a consequential or incidental measure whereby s4(7) of the 1939 Act is replaced so as to specify that local authorities have discretion as to whether or not to prosecute in each case.

15. The DCLG states that the new s4(7) of the Cancer Act 1939 does not impose a new burden.[7] However, the proposed change does confer a function on those local authorities previously outside the scope of s4(7) which we believe could be seen as a burden. For example, local authorities are likely to spend time considering whether to prosecute or not in any particular case. The DCLG states that under existing provision, local authorities would have to come to a view about whether or not to prosecute before seeking the consent of the Attorney General and that they already have the staff and structures in place for bringing prosecutions.[8] The DCLG concludes that there would therefore be no additional burden brought about by the proposed change.

16. In relation to the extension of s4(7) of the 1939 Act to include the metropolitan district councils,[9] the DCLG explains that this would remove an anomaly which arose as an unintended consequence of the abolition of metropolitan county councils under the Local Government Act 1985. The proposed amendment would ensure that the provisions for issuing proceedings applied consistently across England, as originally intended in the 1939 Act.[10] The Department takes the view that this amendment is an appropriate supplementary or incidental provision as referred to in s1(8) of the LRRA 2006 and can also be viewed as the removal of a burden of administrative inconvenience. The inconvenience results directly (for certain councils) and indirectly (for the public in the areas of those councils) from s4 of the 1939 Act and therefore falls within s1(1), (2) and (3)(b) of the LRRA 2006.[11]

17. We consider that the effect of the proposed change to s4(6) of the Cancer Act 1939 to remove the requirement to obtain the Attorney General's consent before instituting prosecutions, would be to remove a burden.

18. We are satisfied by the arguments put forward by the DCLG, summarised above in paragraph 16, and consider that the effect of the proposed change to s4(7) of the Cancer Act 1939 is a supplementary provision within s1(8) of the LRRA 2006 and can also be viewed as the removal of a burden of administrative inconvenience even though it would appear to confer a financial burden (in the form of administrative costs) on metropolitan county councils which were previously outside the scope of s4(7).

HACKNEY CARRIAGE LICENCE ZONES

19. Taxis in England and Wales (outside London and excluding Plymouth) are licensed to ply for hire within a "prescribed distance" under the Town Police Clauses Act 1847, as incorporated within s171(4) of the Public Health Act 1875. Usually the prescribed distance comprises the whole of the licensing authority's area, but some comprise two or more prescribed distances, known as licensing zones. Licensed taxi drivers are compelled to accept hirings which are wholly within the prescribed distance. Prior to 1974, local authorities applied s171(4) of the 1875 Act only in some, mainly urban, areas. In 1974, new local authority areas were created as a result of the Local Government Act 1972. The 1972 Act did not alter the zones licensed under s171(4), and the old licensing zones remained within the new council boundaries. A local authority could choose to have no taxi licensing at all in its district; or it could establish a single licensing zone comprising the whole of its district; or it could continue to license taxis in those areas already established under s171(4) and have no licensing in the remainder of its district.

20. Section 15 of the Transport Act 1985 extended taxi licensing throughout the whole of England and Wales with the effect that an authority which had continued with licensing zones in only part of its district then had to create a new and separate zone for the previously unlicensed area. As a result, some local licensing authorities now have two or more licensing zones within their area, which they may wish to amalgamate. Paragraph 25 of Schedule 14 to the Local Government Act 1972 enables them to pass a resolution to apply s171(4) to the whole of their area. At present the approval of the Secretary of State (or the Welsh Ministers) is required to give effect to this resolution.

21. The proposed change to paragraph 25(4) of Schedule 14 to the Local Government Act 1972 will remove the need for a local authority in England or Wales to obtain the Secretary of State's or the Welsh Ministers' approval to a resolution applying s171(4) of the Public Health Act 1875, so that it can amalgamate taxi licensing zones in its area.

22. The DCLG has proposed transitional arrangements, which would apply in the event that a local authority had passed a resolution applying s171(4) of the 1875 Act throughout its area, but had not been given or refused approval by the Secretary of State or the Welsh Ministers before the date on which the proposed Order had come into force. We were told that it sometimes took the Department for Transport several months to process an application.[12] The proposal is that any such resolutions would automatically take effect 35 days after the Order came into force, so that local authorities would be able to benefit from the new freedom at the earliest opportunity and so that they would not be required to continue with the preparation of applications for Secretary of State consent after the repeal of the requirement for consent in relation to new resolutions had come into force.

23. We consider that the effect of the proposed change to paragraph 25(4) of Schedule 14 to the Local Government Act 1972 would be to remove a burden.

OVERSEAS ASSISTANCE

24. Section 1 of the Local Government (Overseas Assistance) Act 1993 gives local authorities in Great Britain the power to provide advice and assistance on local government activities to bodies outside the UK. However, under s1(3) of the Act, this power cannot be exercised except with the consent of the Secretary of State or in accordance with a general authorisation given by him. In 1996, the Secretary of State gave a general authorisation that local authorities could give advice and assistance under s1 of the 1993 Act provided that certain conditions were satisfied. These conditions specified the type of schemes that local authorities could support and threshold limits for spending.

25. The DCLG proposes to remove the requirement that action be subject to consent or in accordance with a general authorisation given by the Secretary of State. DCLG has advised us that the existing general authorisation in relation to England and Wales would lapse when the requirement was removed. It states that these measures would remove a burden on local authorities and from the Secretary of State, and would give local authorities the freedom to provide advice and assistance to overseas bodies in accordance with the remaining requirements of the 1993 Act.

26. We consider that the proposed change to the Local Government (Overseas Assistance) Act 1993 removes a burden on local authorities.

ARRANGEMENTS FOR HANDLING COMPLAINTS ABOUT THE CURRICULUM FOR PUPIL REFERRAL UNITS

27. Paragraph 6 of Schedule 1 to the Education Act 1996 concerns the curriculum for pupil referral units. There is a duty in sub-paragraph (1) for the local education authority, the management committee (where applicable) and the teacher in charge to exercise their functions with a view to ensuring that the curriculum provision for their unit satisfies certain statutory requirements. Sub-paragraph (2) enables regulations to make provision for the determination and organisation of the curriculum, and the regulations may require the local education committee, management committee or teacher in charge to exercise prescribed functions in relation to the curriculum. Sub-paragraph (3) requires the local education authority, with the approval of the Secretary of State or, in Wales, the Welsh Ministers, to make arrangements for the consideration and disposal of any complaint concerning the unreasonable exercise of any power or duty under sub-paragraph (1) or (2) or the failure to discharge such a duty. The draft Order would amend paragraph 6(3) of Schedule 1 to the Education Act 1996 so as to remove this requirement for approval.

28. We consider that the effect of the proposed change to the Education Act 1996 (Paragraph 6(3) of Schedule 1) would be to remove a burden.

Necessary safeguards

29. Standing Order No.141(3) requires us to consider the provision for maintaining necessary protections;[13] whether the proposals strike a fair balance between the public interest and the interests of any person adversely affected by it;[14] and whether the proposals prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.[15]

CANCER TREATMENT ADVERTISEMENTS

30. The DCLG states that removing the requirement on local authorities to seek the consent of the Attorney General before instituting a prosecution and giving local authorities discretion as to whether or not to prosecute will not remove any necessary protection. Authorities will still be able to institute prosecutions but without the restriction of having first to apply to the Attorney General. The Department states that authorities are already familiar with their obligations with regard to taking account of the public interest when deciding whether or not to prosecute. It states that Local Authorities Coordinators of Regulatory Services advice is that the criteria for local authorities deciding whether to bring a prosecution following an investigation are set out in the Code for Crown Prosecutors and local authorities' own enforcement policies (which are based on the Code). It adds that authorities will already be familiar with their obligations in this respect and it was therefore considered unnecessary to spell out any criteria on the face of legislation.[16]

31. We consider that the proposed change to the Cancer Act 1939 is fair and does not remove any necessary protection or prevent any person from exercising their rights.

HACKNEY CARRIAGE LICENCE ZONES

32. The DCLG states that decisions to amalgamate zones need to balance the need for passengers to benefit from being able to hail any cab in any part of the licensing area, with the need to ensure that an appropriate number of taxis operate in that area. It believes that the public interest lies in the move towards greater local level decision-making and local authority accountability and refers to a Government statement that local authorities are best placed to determine local transport needs and to make decisions about them in the light of local circumstances.[17]

33. Under the proposed change local licensing authorities which wanted to amalgamate their taxi licensing zones would still have to follow the statutory procedure for giving notice, as set out in paragraph 25(5) of Schedule 14 to the Local Government Act 1972. This procedure obliges the local authority to give "requisite notice" of its intention to pass a resolution by means of advertisements in local newspapers and notices to councils of parishes etc in the area. The Department for Transport takes the view that the continued obligation on local authorities to give "requisite notice" contains an implicit obligation on them to consider any representations which they might receive in response to the notice. The Department adds that further protection is provided in that if the authority does not give full and proper consideration to all representations made to it, its resolution will be open to judicial review in the usual way.[18]

34. The proposed transitional arrangements are explained in paragraph 22. The DCLG told us that it considered the possibility that an objector might have decided to delay challenging in court an amalgamation resolution which he believed to be invalid until the Secretary of State or the Welsh Ministers had decided whether or not to approve it.[19] However, if a resolution which was passed before the proposed Order came into force was caught by the transitional provision, the effect of the provision would be - contrary to the objector's earlier expectation - that the resolution would take effect without an approval from the Secretary of State or Welsh Ministers. The Department has pointed out that the risk of such a situation would be drastically reduced if potential objectors were made aware of this possibility from the outset and has advised us that the Department for Transport has written to all local authorities to make them aware of the transitional provision.[20] It is important that information relating to any cases to which transitional arrangements might apply is properly publicised in order to ensure that any potential objectors are aware of the effect of the provisions. Furthermore, if objections are raised, and the authority does not give full and proper consideration to all representations made to it, its resolution will be open to judicial review in the usual way.

35. We consider that the proposed change to paragraph 25(4) of Schedule 14 to the Local Government Act 1972 and the associated transitional arrangements are fair and do not remove any necessary protection or prevent any person from exercising their rights.

OVERSEAS ASSISTANCE

36. The DCLG states that although local authorities have made use of their powers to provide overseas assistance, for example when arranging twinning and other international links, the Secretary of State has not received any individual applications for consent under the 1993 Act provisions. The Department suggests that this indicates that the assistance offered has not been substantial and has fallen within the terms of the general authorisation.[21] It believes that the necessary protection would be maintained under the proposed new arrangements because any overseas assistance would be part of the council's budget and so open to the scrutiny of local taxpayers under the Audit Commission Act 1998.[22] Section 15(1) of that Act provides that any persons interested may inspect the accounts to be audited and all books, deeds, contracts, bills, vouchers and receipts relating to them. Section 15(2) requires a local government elector to be given the opportunity to question the auditor about the accounts if the elector so requests, and s16(1) provides that a local government elector has a right to make objections at audit.

37. We asked the Department why it had not consulted the Audit Commission, given that it is responsible for monitoring local authority expenditure. The Department told us that the proposal had no implications for the powers and duties of the Audit Commission, but undertook to seek its views. The Audit Commission confirmed that it supported the proposal which, in its view was very much in line with the policy of lifting unnecessary burdens from local authorities.[23]

38. We consider that the proposed change to the Local Government (Overseas Assistance) Act 1993 is fair and does not remove any necessary protection or prevent any person from exercising their rights.

ARRANGEMENTS FOR HANDLING COMPLAINTS ABOUT THE CURRICULUM FOR PUPIL REFERRAL UNITS

39. The DCLG states that the proposed changes to paragraph 6(3) of Schedule 1 to the Education Act 1996 will not affect the ability of a person to make a complaint to a local authority regarding the curriculum provided at a Referral Unit and will not affect the duty on local authorities to have a complaints procedure. The Department also adds that the Secretary of State or the Welsh Ministers would be able to use their intervention powers under s496 and s497 of the Education Act 1996 to direct a local authority if it refused to provide a process for hearing the complaint or acted unreasonably in doing so.

40. We consider that the proposed change to the Education Act 1996 (paragraph 6(3) of Schedule 1) is fair and does not remove any necessary protection or prevent any person from exercising their rights.

Adequate consultation

41. A first consultation was published by DCLG in July 2005 and ran from 20 July 2005 until 14 October 2005.[24] The consultation document was published on the Department's website and sent to all local authorities and to a range of other organisations connected with each of the proposals. The Attorney General's office was consulted on the proposed change to the Cancer Act 1939. The office confirmed that it agreed with the proposal to remove the requirement to obtain the Attorney General's consent for prosecutions and to remove the duty on local authorities to prosecute, and stated that it had no other comments.

42. The main consultation document covered all four of the provisions included in this draft Order. It also included questions about another provision, relating to s71(2) of the Local Government and Housing Act 1989, which the DCLG states was removed from the draft Order due to the provision made for the repeal of Part V of that Act in its entirety in Part 12 of the Local Government and Public Involvement in Health Bill. The public consultation was conducted under requirements laid down under the Regulatory Reform Act 2001, but also satisfied the requirements of the LRRA 2006. All of the respondents to the main consultation supported the proposals on which they commented, and the DCLG told us that the most common additional response was that deregulation should go a lot further.[25]

43. A supplementary consultation was conducted regarding the proposal to correct an anomaly whereby s4(7) of the Cancer Act 1939 omitted reference to metropolitan district councils. Three of the four respondents were supportive of correcting the anomaly and the remaining respondent commented on matters outside the scope of the consultation.[26] Another small scale supplementary consultation was carried out with regard to transitional provision for taxi zone amalgamation resolutions submitted before the draft Order became effective and not yet approved or disapproved.[27] All five consultees were supportive of the proposed transitional provision and none raised any problems.[28]

44. We consider that the consultations met the requirements of s13 of the LRRA 2006.

7 Explanatory Document paras 4.8 and 4.9 Back

8 Appendix B, Letter from DCLG to the Committee Clerk, response to question 3 Back

9 See footnote 6 on p 9 of Explanatory Document, which details all the relevant local authorities Back

10 Explanatory Document, paras 4.9 and 4.11 Back

11 Appendix B, Letter from DCLG to Committee Clerk, response to question 3 Back

12 Appendix B, Letter from DCLG to Committee Clerk, response to question 9 Back

13 SO No. 141(3)(g) Back

14 SO No. 141(3)(f) Back

15 SO No.141(3)(h) Back

16 Appendix B, Letter from DCLG to Committee Clerk, response to question 6 Back

17 Explanatory Document, para 5.10 Back