Select Committee on Regulatory Reform First Report

Appendix A

Letter from the Clerk of the Committee to the Department for Communities and Local Government: Draft Legislative Reform (Local Authority Consent Requirements) Order 2007: request for information

At its meeting yesterday, the Committee considered the above draft Order and decided to seek further information from you. The issues which concern the Committee are set out below under the various proposals.

In providing your answers, please bear in mind that the Committee requires full responses by the 27 October.


General questions

Q 1  The preamble to the draft Order states that it is made with the agreement of the National Assembly for Wales. The agreement required is that of the Welsh Ministers (section 11(2) of the Legislative and Regulatory Reform Act (LRRA) 2006, as amended). Please explain:

(i)  the legislative or interpretative basis for converting an existing agreement of the National Assembly for Wales into an agreement of the Welsh Ministers, as required by section 11(2); or

(ii)  if there is no such basis, the plans for obtaining the necessary agreement.

Q 2  Please confirm that the consultation documents were available on the department's website throughout the consultation period.

Cancer treatment advertisements

Q 3  The Department states (paras 4.8 and 4.9) that new section 4(7) of the Cancer Act 1939 does not impose a new burden on the grounds that it does not impose any obligations on authorities. However, the proposed change does seem to confer a function on those previously outside the scope of section 4(7) that 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. Given that section 1(3) of the LRRA provides for a wider definition of burden, please explain how the Department justifies its conclusion that the new section 4(7) of the Cancer Act 1939 does not impose a new burden when it clearly confers a function on such authorities which were previously outside the scope of section 4(7).

Q 4  Removal of an anomaly is not a ground for including a provision in a draft Order. Please explain how the amendment relating to metropolitan district councils fits into section 1 of the LRRA.

Q 5  Paragraph 4.12 of the explanatory document is somewhat generalised on the tests set out in section 3(2) of the Act. Please go through the tests in section 3(2) of the LRRA one by one.

Q 6  The proposed changes will give local authorities the discretionary power to prosecute, but no criterion is specified. The Department seems to assume (paras 4.4 and 4.12 of the explanatory document) that local authorities will comply with the Code of Practice for Crown Prosecutors thereby taking account of the public interest when deciding whether or not to prosecute. Please explain if there is an obligation on local authorities to comply with the Code or if they individually decide whether or not to do so? If the latter, is this considered sufficient or would it have been better to spell out the criterion expressly in section 4(7)?

Q 7  As regards the proposed changes to the Cancer Act 1939, there appears to be some ambiguity over whether or not the Attorney General was consulted. The Attorney General is included in para 3.1 of RIA as a consultee, but not listed as a consultee in Annex A2. Please explain whether or not the Attorney General was consulted on the proposed change. And if so, what were his views?

Hackney carriage licence zones

Q 8  Paragraphs 5.11 and 5.14 of the explanatory document explain that representations (on merging licensing areas for taxis) will need to be considered by relevant local authorities. Please explain why the right to have representations considered was not made explicit by the draft Order.

Q 9  Also on such mergers, please explain why it was concluded that resolutions in the pipeline as at the date of coming into force of the draft Order would not need to be approved.

Q 10  Paragraphs 5.10 to 5.14 are somewhat generalised and partial on the tests set out in section 3(2) of the Act. Please go through the tests in section 3(2) of the LRRA one by one.

Q 11  Please explain why the option for a person who objected to an amalgamation of seeking a judicial review was not mentioned in the evaluation of the protection mechanisms (and only referred to in its description of the proposed transition arrangements).

Q 12  Please provide further details about the small scale supplementary consultation on transitional provision for taxi zone amalgamation, including the reason for selecting the five organisations which were consulted and the questions addressed in the exercise.

Overseas assistance

Q 13  In relation to overseas assistance, instead of the limit now specified in general guidance each local authority will, if the draft Order is made as drafted, have greater scope to increase their spending on foreign travel in relation to local government activities abroad. Given the potential for abuse, please explain - a) why the option was not taken to include provision under section 4 of the LRRA enabling the Secretary of State to restore by statutory instrument, the position now covered by the general authorisation; and b) why the Audit Commission, which is responsible for monitoring local authority expenditure, was not consulted.

Q 14  Paragraphs 6.9 to 6.11 are somewhat generalised and partial on the tests set out in section 3(2) of the LRRA 2006. Please go through the tests in s section 3(2) of the LRRA one by one.

Q 15  Given section 9 of the LRRA, which permits section 1(8) based provisions to include matter within the legislative competence of the Scottish Parliament, please explain why the occasion was not taken to ensure that there would be a single master text of the Local Government (Overseas Assistance) Act 1993, leaving the position in Scotland unchanged?

Curriculum for pupil referral units -arrangements for complaints

Q 16  Paragraph 7.8 is somewhat generalised on the tests set out in section 3(2) of the LRRA 2006. Please go through the tests in section 3(2) of the LRRA one by one.

For completeness, I also set out below a number of instances where the Committee suggests the accuracy of some footnotes and the Explanatory Note might be improved. Clearly the precise wording in each case is a matter for the Department and Parliamentary Counsel, but please respond in relation to each of these points as well as the previous questions.
PointPossible change
Page 1 footnote (a)Add before full stop at end: '; sections 1, 4, 11, 13, 24 and 27 have been amended by the Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), Schedule 1, paragraphs 143 to 149'.
Page 2

footnote (c)

Add before full stop at end: ', as amended by the Local Government Act 1985 (c.51), Schedule 17 and by the Local Government (Wales) Act 1994 (c.19), section 1(5)'.
Page 2 footnote (e)Delete 'subsection (4) of'
Page 3 footnote (a)List the Acts in chronological order and add before 'and S.I. 2001/3618':

'paragraph 83 of Schedule 1 to the Fire and Rescue Services Act 2004 (c.21); paragraph 10(3)(c) of Part 1 of Schedule 2 to the Civil Contingencies Act 2004 (c.36)'.

Page 3 footnote (b)In opening line change 'paragraph 184' to 'paragraphs 57 and 184'
Page 4, fourth paragraph of Explanatory Note In second sentence change 'without' to 'unless it is exercised with'

I should be grateful to receive your response to all these questions, together with any additional information which the Department believes would be helpful to the Committee, not later than 27 October 2007.

In the meantime, if you would like any further information or clarification concerning the Committee's request, please let me know, preferably by email.

17 October 2007

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