Select Committee on Regulatory Reform First Report

Appendix D

Letter from the Department for Communities and Local Government to the Clerk of the Committee

Thank you for your e-mailed letter dated 7 November 2007, advising us that the Regulatory Reform Committee required further clarification in relation to our letter of 29 October.

We have sought further 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

Q1  (Reference Q1 in the letter of 17 October) In the light of the explanation given in response to our question 1, what thought has been given to revising paragraph 3 of the preamble to reflect the position more accurately? For example:

"Agreement has been given in accordance with section 11 of that Act( )."

together with a new footnote as follows:

"( )  By virtue of paragraph 39 of Schedule 11 to the Government of Wales Act 2006, the agreement of the National Assembly for Wales which was given on 27 March 2007 has effect as if it were the agreement of the Welsh Ministers.".

The Department for Communities and Local Government is grateful for the Committee's suggestion and agrees that it would appear desirable to add a footnote to the preamble for clarification, in the light of concern expressed by the relevant Committees in both Houses. We are currently in the process of agreeing the precise wording with Welsh legal colleagues.

Overseas assistance

Q2  (Reference Q13b) Why was the Audit Commission, which is responsible for monitoring local authority expenditure, not consulted?

The Department did not consult the Audit Commission on the proposed removal of the consent requirement in the 1993 Act because the proposal had no implications for the powers and duties of the Commission. However, for further assurance and in the light of the Committee's concern on the point we now intend to get in touch with the Commission and seek any views.

Q3  (Reference Answer to Q13b) What is the legal requirement that calls for the expenses on overseas assistance to be separately identified in the accounts and for those accounts to be available to the local electors?

Section 15 of the Audit Commission Act 1998 requires local authorities to make their accounts available for public inspection prior to them being audited. It would normally be expected that expenditure of the kind provided for in the Local Government (Overseas Assistance) Act 1993 would be separately identifiable in the accounts.

Q4  (Reference Q15) The Committee is aware that Parliamentary Counsel drafts amendments to primary legislation, but looks to the Department for responses to all its questions. Accordingly, please endeavour to consult with Parliamentary Counsel and provide the explanation requested, noting that, as the relevant House of Lords Committee has caused the procedure to become super-affirmative, the option of recommending amendments to the order is available.

The Department has consulted Parliamentary Counsel, and whilst we are grateful for the Committee's suggestion, following our discussion and Counsel's advice we do not intend to make any further amendment in this respect.

As Counsel points out, as matters stand at present, there is no single master text of the 1993 Act. Since it was originally passed, there have been amendments to section 1 extending only to England and Wales (e.g. the amendments to subsection (10) made by the Fire and Rescue Services Act 2004, and the Local Government Overseas Assistance (London Pensions Fund Authority) Order 2001). There has also been an amendment to section 1 extending only to Scotland, (the amendment to subsection (9) made by the Local Government etc. (Scotland) Act 1994). Further, following devolution, references in the 1993 Act to the 'Secretary of State' are presumably now to be read, in relation to Scotland, as references to the Scottish Ministers (by virtue of the Scotland Act 1998). So there are already different texts in England and Wales, on the one hand, and Scotland on the other.

To have produced a single consolidated text of the whole of section 1, would in Parliamentary Counsel's view and our own, go beyond the intentions of this order and quite possibly beyond vires. Departments are under no obligation to produce consolidated versions of legislative texts each time they make an amendment. Moreover, there is no assumption that where there is a pre-1998 Act extending to the whole of Great Britain, the subject-matter of which is now devolved, it is necessary to keep that Act as a single Act. In fact there are many examples (of which the 1993 Act is one) of Acts which, following devolution, have been amended separately for England and Wales, and Scotland. Indeed, it could be argued that the emergence of separate texts for the two jurisdictions is consistent with the logic of devolution. So what is done by the draft Order, is not, we would say, unusual, but is consistent with the Government's approach to amending primary legislation (in both Bills and SIs).

In so far as the Committee is suggesting that, while leaving the rest of section 1 alone, our amendments should have extended to England and Wales and Scotland, but leaving the position for Scotland as it is, we agree that in principle this would have been possible. But on an administrative level it would have involved getting the agreement of OSAG and OSSE. On a drafting level, it would probably have been difficult to reproduce the situation for Scotland without replacing all the references to the Secretary of State with references to the Scottish Ministers (thus going some way to rewriting the whole of section 1 and producing an entirely new text). There would therefore have been considerable practical difficulty, for little or arguably no benefit. Since there is no single text of the 1993 Act at the moment, the Order does not make matters worse, but leaves the text clear for both England and Wales, and Scotland: indeed as far as England and Wales is concerned (the jurisdiction for which the amendment is made) the result is in our view clearer. All we want to do is repeal the requirement for the Secretary of State's consent. That is what we have done.

Finally Parliamentary Counsel would wish us to point out that the drafting of the Order is done by the Department, and that Counsel's role is limited to checking the amendments to primary legislation. In this case, the Department drafted the amendments and Counsel were, and are, happy with them. We made no suggestions other than what the Order currently provides, and Counsel were and are happy with that. The Department hopes that this will correct any impression inadvertently given that the drafting of the Order was done by Parliamentary Counsel.


Q5  At what stage will the Department consider revising the footnotes and Explanatory Note as set out in the table to the Committee's letter of 17 October?

The Department is grateful for the comments received from both the Lords' and Commons' Regulatory Reform Committees and we will revise the footnotes to the Order and the Explanatory Note, if there is an opportunity to do so, in the course of the super affirmative procedure.

I hope that the above will assist the Committee in its consideration of the draft Order.

13 November 2007

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