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
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.
QUESTIONS RELATING TO THE DRAFT ORDER
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
(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
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
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.
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
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.
|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'.
|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