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;
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.
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