Appendix
B
Letter from the Department for Communities and
Local Government to the Clerk of the Committee: response to request
for information
Thank you for your e-mailed letter sent to my colleague
Siobhan Scott, and dated 17 October 2007, advising us that the
Regulatory Reform Committee had considered the Legislative Reform
Order at its meeting on 16 October. In order to inform its consideration,
the Committee has asked a series of questions on the various consent
regimes.
In order for officials to respond, I had to seek
advice from the relevant Government Departments who have policy
responsibility for the consent regimes, and colleagues have provided
replies which are as full as possible.
Taking the Committee's questions each in turn;
General questions
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 2006 ("LRRA"), 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.
The National Assembly for Wales, constituted under
the Government of Wales Act 1998, gave agreement in March 2007
to the making of the Order, in accordance with section 11 of the
LRRA 2006 as it then stood. The amendments to section 11 by the
Government of Wales Act 2006 (Consequential Modifications and
Transitional Provisions) Order 2007 came into force on 25 May
2007, from which date section 11(2) was amended to require the
agreement of the Welsh Ministers.
By virtue of paragraph 38(1)(c) of schedule 11 to
the Government of Wales Act 2006, a "transferred function"
(in paragraphs 39 and 40) means a function which is conferred
or imposed on the Welsh Ministers by a provision of any Act in
consequence of the amendment of that Act by or under the Government
of Wales Act 2006. For present purposes, the agreement of Welsh
Ministers under section 11 of the LRRA is a "transferred
function".
By virtue of paragraph 39 of schedule 11 to the Government
of Wales Act 2006, anything that was done by or in relation to
the National Assembly constituted by Government of Wales Act 1998
for the purpose of or in connection with a transferred function
has effect as if done by the transferee of the transferred function,
the transferee here being the Welsh Ministers. The Department
therefore considers that the requirement to gain agreement of
Welsh Ministers under section 11(2) has been satisfied.
The relevant Welsh Ministers were consulted on and
agreed the draft Order before it was presented to the National
Assembly for Wales in March. Welsh Ministers appointed following
the National Assembly elections in May have been briefed on the
Order.
2) Please confirm that
the consultation documents were available on the department's
website throughout the consultation period.
I can confirm that the consultation documents were
available on the department's website throughout the consultation
period.
Cancer treatment advertisements
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)'.
Under existing provision, local authorities would
have to come to a view about whether or not to prosecute in any
particular case, in other words as to whether the duty imposed
by section 4(7) of the Cancer Act 1939 is triggered. This would
involve satisfying themselves that an offence has been committed
in contravention of section 4(1), that no defence arises under
section 4(2), and that the merits of the case are strong enough
to justify bringing a prosecution. The exercise of a discretion
will involve the consideration of the same elements. However (under
section as it is proposed to be amended) the final decision as
to whether or not to proceed with a prosecution will rest with
the authority itself, rather than with the Attorney-General. The
Department thus does not consider that any additional burden is
imposed.
In relation to the authorities (metropolitan district
councils) which are not included in the description "the
council of every county and county borough" in section 4(7),
the proposed amendment will of course not oblige any authority
to bring a prosecution, but will put beyond doubt such authorities'
powers to act if necessary to protect the public in their areas.
The Department considers that this enlargement of the discretion
of the authorities in question does not impose any new burden,
even bearing in mind the terms of the definition of "burden"
in section 1(3) of the LRRA. No immediate financial cost (see
section 1(3)(a)) is imposed, and under the proposed amendment
the authorities in question would have a choice as to whether
or not to incur the financial cost of bringing a prosecution,
should the grounds for doing so arise. There would, of course,
be administrative matters to consider (see section 1(3)(b)), but
these would not in the Department's view amount to "inconvenience":
authorities are empowered to bring prosecutions in a variety of
areas, and will already have staff and structures in place for
doing so. (Subparagraphs (c) and (d) of section 1(3) are not,
in the Department's view, applicable in this case.).
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'.
The Department considers that there are two analyses
under which the amendment relating to metropolitan district councils
fits into section 1. First, it is considered to be an appropriate
supplementary or incidental provision (see section 1(8)). Second
and alternatively, it can be viewed as removal of an administrative
inconvenience.
(i) Incidental or supplementary amendment
The Department avers that in its view, the proposed
amendment to include metropolitan district councils in subsection
(7) is supplementary or incidental to the repeal of section 4(6)
and the amendment to section 4(7), which provides councils with
the discretionary power to institute proceedings (rather than
imposes a duty on them to institute proceedings). Listing the
authorities to which the new procedure is to apply, in terms which
are consistent with the current state of local government structure,
is incidental or supplementary to the establishment of the procedure
itself.
(ii) Administrative inconvenience
The Department takes the view that the amendment
relating to metropolitan district councils removes a burden, which
is an administrative inconvenience resulting directly (for certain
councils) and indirectly (for the public in the areas of those
councils) from section 4 of the 1939 Act. It therefore falls within
sections 1(1), (2) and (3)(b) of the LRRA.
Since the abolition of the metropolitan county councils
by the Local Government Act 1985, the duty to institute proceedings
under section 4(7) of the 1939 has not been exercisable by any
local authority within metropolitan county areas. The exclusion
of metropolitan district councils was an unintentional consequence
of the abolition of metropolitan councils under the Local Government
Act 1985. The effect of this is that currently, under the 1939
Act, metropolitan district councils cannot bring proceedings under
section 4 of that Act against persons who take part in the publication
of any advertisement offering treatment, prescribing a remedy,
or offering advice in connection with treatment, for cancer. Part
of the country is therefore excluded from the protection provided
by section 4
This anomaly is a burden for members of the public
in areas of such councils in that the law in relation to them
is left in a state of inconsistency, which may confuse them and
ultimately leave them vulnerable to the very acts which section
4 of the Cancer Act 1939 was intended to prevent. There is no
logical reason to exclude part of the country from this Act nor
to provide residents in those areas with a lower level of consumer
protection.
The administrative inconvenience is also a burden
for metropolitan district councils themselves. Although currently,
metropolitan district councils have general powers to prosecute
under section 222 of the Local Government Act 1972, the test under
that section is that they can do so where they consider it expedient
for the promotion or protection of the interests or inhabitants
for their area. They cannot, though, prosecute under section
4 of the 1939 Act. The extent of the powers under section 222
is comparatively less clear and can lead to protracted argument
as to whether or not a particular case falls within those powers.
It is by no means certain that an authority could bring a prosecution
under that section for the sort of offence envisaged by section
4 of the Cancer Act 1939. It would be more straightforward, convenient
and consistent if metropolitan district councils were able to
prosecute under the same legislative provisions as other authorities
for the same type of offence.
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.'
Section 3 of the LRRA imposes conditions which the
Minister must consider to be satisfied before he can make an order
containing provision under section 1(1). In relation to this question
and to questions 5), 10), 14) and 16), we note that section 3(1)
only requires those conditions in section 3(2) which are relevant
to be considered. However, with the aim of assisting the Committee
as far as possible, each of the tests is considered below in relation
to each question, although clearly some are more relevant, in
relation to particular policy proposals, than others.
3(2)(a): The policy objective intended to be secured
by the provision could not be satisfactorily secured by non-legislative
means.
The policy objective - to remove the necessity for
seeking the Attorney-General's consent, and to give all local
authorities the same discretionary powers, as to prosecutions
under the Cancer Act 1939 - can only be achieved by legislative
means. The obligation to seek the Attorney-General's consent is
in primary legislation, and can only be amended by further primary
legislation or by means of an order under the LRRA.
3(2)(b): The effect of the provision is proportionate
to the policy objective
The Department considers that the proposed amendments
in the Order to section 4(6) and (7) of the 1939 Act are proportionate
to the policy objectives of decreasing unnecessary bureaucracy
for local authorities (by removing the requirement to obtain the
consent of the Attorney General before authorities are able to
take action locally) and ensuring that no parts of the country
are excluded from the protections that the 1939 Act provide.
3(2)(c) The provision, taken as a whole, strikes
a fair balance between the public interest and the interests of
any person adversely affected by it.
The Department does not consider that persons are
adversely affected by the repeal of section 4(6) and amendment
to section 4(7) of the 1939 Act. Further, no new burdens are created
by the proposal.
3(2)(d) The provision does not remove any necessary
protection
Removing the requirement on local authorities to
seek the consent of the Attorney-General before instituting a
prosecution will not remove any necessary protection. Authorities
will still be able to institute prosecutions under section 4 of
the 1939 Act for the publication of any advertisement offering
treatment, prescribing a remedy, or offering advice in connection
with treatment, for cancer, but without the restriction of having
first to apply to the Attorney-General.
The removal of the requirement to seek the consent
of the Attorney-General arguably removes any consideration as
to whether a prosecution is in the public interest, leaving the
local authority under a duty to prosecute in all case. The Order
therefore substitutes section 4(7) of the 1939 Act so as to make
clear that the specified local authorities have discretion on
whether or not to prosecute in any particular case. Local authorities
should comply with the Code for Crown Prosecutors (thereby taking
account of the public interest) in deciding whether or not to
prosecute under section 4 of the 1939 Act, as they do in considering
whether or not to bring other sorts of prosecutions.
The inclusion of metropolitan district councils in
section 4(7) of the 1939 Act will ensure these district councils
have the same powers available to their counterparts elsewhere
in the country and therefore that residents in these areas are
covered by the same consumer protection as those living elsewhere
in England. These changes, therefore, do not remove any necessary
protection.
3(2)(e) The provision does not prevent any person
from continuing to exercise any right or freedom which that person
might reasonably expect to continue to exercise
Section 4 of the 1939 Act will continue to provide
that, subject to certain defences, it is an offence to take part
in the publication of any advertisement offering treatment, prescribing
a remedy, or offering advice in connection with treatment, for
cancer. The amendments to subsections (6) and (7) do not amend
the nature of the offence in that section. The authorities will
continue to have the power to bring proceedings under section
4 of the 1939 Act. As the consent of the Attorney-General will
no longer be required, authorities will have discretion, rather
than a duty, to bring proceedings. Accordingly, the provision
does not prevent any person from continuing to exercise any right
or freedom which that person might reasonably expect to continue
to exercise.
3(2)(f) the provision is not of constitutional
significance
The amendments to section 4(6) and (7) of the 1939
Act are not of constitutional significance.
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)?'
LACORS (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). Authorities
will already be familiar with their obligations in this respect.
It was therefore considered unnecessary (and inconsistent
with the policy objective of conferring greater freedoms in decision-making
on local authorities) to spell out any criterion on the face of
legislation.
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?'
The Attorney General's office was consulted on the
proposed change and confirmed on 6 June 2005 its agreement with
the proposal (1) to remove the requirement to obtain the Attorney
General's consent for prosecutions and (2) to remove the duty
on local authorities to prosecute. No other comments were given.
Hackney carriage licence zones
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'.
The draft Order simply removes the requirement for
the Secretary of State to approve a taxi amalgamation resolution
before it can take effect. The procedure to be followed by a local
authority in terms of passing the resolution (contained in paragraph
25 of Schedule 14 to the Local Government Act 1972) remains in
place.
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
parishes in the district.
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. This obligation arises as a matter of general administrative
law requiring authorities to act reasonably and rationally, and
the Department does not, therefore, consider that the draft Order
needs to make any special provision for the consideration of representations.
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'.
The transitional arrangements in the draft Order
regarding taxi amalgamation resolutions were based on the Department
for Transport's view that local authorities should be able to
benefit from the new freedom which would be available to them
at the earliest opportunity.
And, bearing in mind that it can take the Department
several months to process an application for approval, it would
seem anomalous for them to be considering an application possibly
two or more months after the repeal of the requirement for consent
had come into force.
The Department for Transport has taken steps to alert
licensing authorities to the possible change in the law to enable
them to make informed decisions about any future resolutions.
A letter was sent to every local authority in England and Wales
at the time of laying the draft Order in July 2007 which, as well
as explaining the proposal in general terms, drew specific attention
to the transitional arrangements in order that those local authorities
contemplating amalgamation would be aware of the proposals.
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'.
(a) the policy objective intended to be secured
by the provision could not be satisfactorily secured by non-legislative
means
The policy objective - to reduce the burden on local
government by removing the need for authorities to seek the Secretary
of State's approval when they want to amalgamate taxi licensing
zones - can only be achieved by legislative means. There is a
statutory obligation in primary legislation on licensing authorities
to seek the Secretary of State's approval before an amalgamation
resolution can take effect. This statutory requirement can only
be lifted by legislative means.
(b) the effect of the provision is proportionate
to the policy objective
The Department for Transport considers that the effect
of the provision is proportionate to the policy objective.
The policy objective is to reduce unnecessary burdens
on local government and place on them greater responsibility for
making local decisions and more accountability to local people.
Removing the requirement for the Secretary of State to approve
taxi amalgamation resolutions will meet this objective; local
authorities will no longer have to go through the bureaucratically
burdensome task of preparing a submission to the Secretary of
State (who is not well-placed to make decisions on matters that
are so local in nature) and they will be accountable for any decision
they make to amalgamate taxi licensing zones.
The provision goes no further than is necessary to
achieve the policy objective.
(c) the provision, taken as a whole, strikes
a fair balance between the public interest and the interests of
any person adversely affected by it
The Department for Transport considers that the provision,
taken as a whole, strikes a fair balance between the public interest
and the interests of any person adversely affected by it.
The public interest lies in the move towards greater
local level decision-making and local authority accountability
- as well as reducing a burden from local authorities.
Those who could potentially be adversely affected
by the provision are taxi drivers and taxi owners who might object
to a local authority's decision to amalgamate its taxi licensing
zones. In such cases, the trade might understandably appreciate
the fact that they could put their objections to the Secretary
of State who would be ultimately responsible for making a decision
on whether to approve.
The Department for Transport recognises that there
will be people in the taxi trade who might be adversely affected,
but it is notable that they did not object to the proposal in
the consultation exercise. Moreover, local authorities are responsible
for formulating taxi (and private hire vehicle) policies for their
own areas, so the trade would be used to negotiating with the
local authorities, and making any necessary representations to
them, in relation to general local taxi policy decisions. Those
affected will still have normal legal remedies available to them
in relation to the authorities' decisions. The Department has
no reason to believe that potential adverse effects outweigh the
public interest.
(d) the provision does not remove any necessary
protection
The Department for Transport is satisfied that the
provision does not remove any necessary protection.
Local licensing authorities who 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. They would also
have a legal obligation on them to consider any representations
put to them before they pass a resolution.
As well as the specific protection mechanism relating
to amalgamation resolutions, if the taxi trade (or any person)
considered that the local authority had acted unlawfully or engaged
in maladministration, they would be able to pursue their grievances
though application for judicial review and the Local Government
Ombudsman respectively.
(e) the provision does not prevent any person
from continuing to exercise any right or freedom which that person
might reasonably expect to continue to exercise
The Department for Transport considers that the provision
does not prevent any person from continuing to exercise any right
or freedom which that person might reasonably expect to continue
to exercise.
This conclusion was reached on the basis that any
person who believed that they might be adversely affected by a
taxi amalgamation resolution would still have the right to make
representations. The representations would be to the local authority,
and no longer to the Secretary of State, but the position would
remain that an aggrieved person would have the right to make their
views known and considered in advance of a resolution being passed.
(f) the provision is not of constitutional significance
The Department for Transport considers that this
provision is not of constitutional significance; it simply removes
a burden from local authorities and makes them more accountable
for local decisions.
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)'.
The Department for Transport recognises that an additional
form of protection - the possibility of an application for judicial
review - was mentioned in the section relating to transitional
provisions but not in the evaluation of protection mechanisms.
This reflected the fact that the evaluation of protection mechanisms
focussed on the mechanisms available under the specific legislation
governing taxi amalgamation resolutions i.e., the obligation on
local authorities to give "requisite notice" and the
implicit obligation on them to consider any representations generated
by the notice.
An application for judicial review is a more generic
form of protection which applies to a whole range of decisions
made by public bodies; it was mentioned simply for the sake of
completeness in the section on transitional arrangements. But
the main focus of the Explanatory Document was the fact that the
Local Government Act 1972 would continue to provide a sufficient
form of protection.
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'.
The Department for Transport drew up the transitional
provisions after the main consultation on the principle of whether
to remove the Secretary of State's role in approving taxi amalgamation
resolutions. The Department therefore concluded that it should
carry out a supplementary consultation to gauge opinion in such
a way as to avoid holding up the progress of the draft Order whilst
targeting the main people who would have an opinion or be affected.
A letter was sent to five organisations on 14 November
2005 asking for a response by 17 November. The letter set out
some of the background and posed two questions:
i) Are you in favour of the proposal to allow
amalgamation resolutions which have been made before the Regulatory
Reform Order comes into force to take effect automatically 35
days after the RRO comes into force?
ii) Do you foresee any problems in adopting this
approach? If so please explain your reasons.
The five organisations who were asked about the transitional
arrangements were chosen on the following basis:
a) James Button - Mr Button is a lawyer who specialises
in taxi law. He has written a book on taxi law ("Taxis -
Licensing Law and Practice") and he had already shown an
interest in the issue by responding to the main consultation exercise.
b) The Institute of Licensing - The Institute is
one of the Department's principal stakeholders - it represents
taxi licensing officers in England and Wales. It had also shown
an interest in the issue by responding to the main consultation.
c) Isle of Wight Council - The IoW Council, at that
time, had an interest in amalgamating its own zones. The Council
responded to the main consultation and the Department took the
view that its views would be of particular value given the fact
that it would, at some point in the near future, be going through
the procedure. [The Council subsequently passed a resolution
in January 2006 which was approved by the Secretary of State in
September 2006.]
d) The National Association of Licensing and Enforcement
Officers - This is another of the Department for Transport's principal
taxi stakeholders. NALEO, like the Institute of Licensing, represents
taxi licensing officers in England and Wales. They did not respond
to the main consultation, but the Association's members would
be directly affected by the transitional arrangements.
e) The National Taxi Association - The NTA is the
principal stakeholder representing the taxi trade in England and
Wales outside London. Whilst they did not respond to the main
consultation exercise, they were chosen for the small-scale supplementary
consultation because it would be their members - taxi drivers
and owners - who would be most affected by the removal of the
Secretary of State's approval role.
Overseas assistance
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'
a) Whilst the Department for Communities and Local
Government is grateful for the Committee's indication that section
4 of the LRRA would be available should it wish to confer power
on the Secretary of State of the nature described, and will continue
to keep the policy under close review, the Department does not
accept that abuse is a necessary implication of the extension
to local authorities of greater responsibility in managing their
own financial affairs. To include such provision as suggested
would fly against the policy objective of extending trust and
conferring greater freedom on authorities. Moreover in the Department's
view it would be an unusual approach to legislation, to include
a provision reserving the possibility of reversing a legislative
change.
b) Any decision taken by local authorities in relation
to offering assistance would be part of the council's budget approved
by the council which is democratically accountable to local taxpayers.
As the question recognises, the Audit Commission will, of course,
continue to monitor local authority expenditure.
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'
On the conditions in section 3(2) of the LRRA:
(a) the policy objective intended to be secured
by the provision could not be satisfactorily secured by non-legislative
means
The policy is to allow authorities complete freedom
to provide advice or assistance in accordance with the remaining
requirements of the 1993 Act. That is achieved by removing the
consent requirement - which requires legislation to amend those
requirements
b) the effect of the provision is proportionate
to the policy objective
The policy objective as stated above is met by amending
the 1993 Act to remove the involvement of the Secretary of State
in the decision-making process where a local authority is considering
giving advice and assistance under section 1(1) of the 1993 Act.
Authorities will still have to comply with the usual rules of
administrative law requiring them to act reasonably and responsibly
in their decision-making, but will not be subject to general constraints
which may not be appropriate in an individual case, nor have to
seek consent from the Secretary of State. The Department considers
that the effect of the provision is proportionate to the policy
objective.
c) the provision, taken as a whole, strikes a
fair balance between the public interest and the interests of
any person affected by it
The provision is considered to be in the interest
of the public as a whole and no individuals are adversely affected
by it. The safeguard of the Audit Commission's scrutiny, as mentioned
above, remains in place, and taxpayers remain able to influence
their authorities through the usual channels of local democracy
and where appropriate, judicial review.
d) the provision does not remove any necessary
protection
This is covered in paragraph 6.10 of the Explanatory
Memorandum:
This legislation is out of line with current approaches
and local authorities should be free to incur expenditure to provide
advice and assistance, in a manner they deem appropriate. This
approach is consistent with provisions in the power of well-being[30]
which enables authorities to incur expenditure, without limit,
where it promotes social, economic or environmental well-being
of the local community. Local authorities' expenditure is audited
and they should be accountable to their communities for decisions,
including on providing overseas advice and assistance, where this
results in local authorities incurring expenditure. We believe
that this maintains necessary protections.
e) the provision does not prevent any person from
continuing to exercise any right or freedom which that person
might reasonably expect to continue to exercise
This condition does not seem to be relevant. No right
or freedom is in question here, other than the right of authorities
to determine how to give assistance under the 1993 Act.
f) the provision is not of constitutional significance
The Department considers that this proposal is not
of constitutional significance: it simply removes a burden from
local authorities and makes them locally accountable for their
decisions.
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?'
The Scottish Executive were consulted on the proposals
and decided that, in respect of Scotland, they did not want the
consent requirement removed from the 1993 Act. The precise drafting
of article 4 of the Order is of course a matter for Parliamentary
Counsel, but the Department notes the Committee's concern and
will ask Counsel to consider this if an opportunity arises.
Curriculum for pupil referral units - arrangements
for complaints
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'.
The Department for Children, Schools and Families
takes the view that this consent requirement is no longer necessary
because the amendment to paragraph 6(3) of Schedule 1 will not
affect the ability of a person to make a complaint to a local
authority regarding the curriculum provided at a pupil referral
unit ("PRU") and will not affect the duty on an authority
to make arrangements for the disposal of that complaint. If the
authority refuses to provide a process for hearing the complaint
or acts unreasonably in doing so, the Secretary of State or the
Welsh Ministers will be able to use their intervention powers
under section 496 and 497 of the Education Act 1996 to direct
the LA accordingly. The provision is therefore fair, it does not
remove any necessary protection or prevent any person from exercising
their rights.
In detail, the provision meets the conditions set
out in section 3(2) of the Local Regulatory Reform Act 2006 as
follows:
a) As the requirement to seek the Secretary of State's
approval for curriculum complaints procedures for PRUs is in primary
legislation, there is no non-legislative means by which the requirement
could be removed. The terms of the 1996 Act do not allow any discretion
for authorities not to seek the Secretary of State's (or that
of Welsh Ministers in Wales) approval of the arrangements for
dealing with curriculum complaints. The only way of removing the
requirement is therefore through the legislative route.
b) The provision does no more than remove the requirement
on local authorities to seek the Secretary of State's approval
of PRU curriculum complaints procedures. Authorities will still
be under an obligation to have a complaints procedure. We therefore
think that the effect of the provision is proportionate to the
policy objective, which is to reduce the burden on local authorities
by removing the consent requirement.
c) The provision strikes a fair balance between the
public interest and the interests of any person adversely affected
by it. In fact, we do not believe that anyone will be adversely
affected by the provision. There will still be a right to complain
about a PRU's curriculum; there will still be a requirement on
authorities to put in place a complaints procedure; and there
is still the mechanism for complaint to the Secretary of State
if someone thinks that a local authority has failed in a statutory
duty or acted unreasonably in the performance of that duty (in
this case, the duty being to have a complaints procedure).
d) The provision does not remove any necessary protection;
as stated above, if the authority refuses to provide a process
for hearing the complaint or acts unreasonably in doing so, the
Secretary of State or the Welsh Ministers will be able to use
their intervention powers under section 496 and 497 of the Education
Act 1996 to direct the LA accordingly.
e) The provision does not prevent any person from
continuing to exercise any right or freedom which that person
might reasonably expect to continue to exercise - the right in
this case being the right to complain about the curriculum in
a PRU, and the right to have that complaint dealt with in a reasonable
manner. Neither of these rights are affected by this provision.
f) The provision is not of constitutional significance;
it only applies to complaints about the curriculum in a PRU, it
does not have any effect on constitutional matters.
'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'.
| Point | Possible 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'.
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| 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'
|
Thank you for your helpful advice. We will consider
amending the Explanatory Note as suggested if an opportunity arises.
I hope that the above will assist the Committee in
its consideration of the draft Order.
29 October 2007
30 s.2 and in particular s.2(4)(a) and (b) Local Government
Act 2000: http://www.legislation.hmso.gov.uk/acts/acts2000/00022--b.htm#2 Back
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