Select Committee on Regulatory Reform Fourth Report


1  Report

1.  The draft Legislative Reform (Local Authority Consent Requirements) (England and Wales) Order 2007 was laid before Parliament by the Department for Communities and Local Government (CLG) on 25 July 2007.

2.  The purpose of the draft Order was to remove the need for local authorities in England and Wales to obtain consent or approval before taking certain action with regard to section 4 of the Cancer Act 1939; Schedule 14, paragraph 25 of the Local Government Act 1972; section 1 of the Local Government Act 1993; and Schedule 1 to the Education Act 1996.

3.  Our First Report of the current session, published in November 2007, dealt with the proposals in full.[1] In that Report we drew attention to minor amendments which we considered should be made to footnotes and the Explanatory Note, but which in our view, did not amount to material changes to the draft Order. We agreed with the recommendation from the Minister of State at CLG that the affirmative resolution procedure should apply.

4.  But our sister committee in the House of Lords, which reviewed the draft Order at the same time, reached a different conclusion in terms of which parliamentary procedure should apply.[2] Within 30 days of the draft Order being laid, it upgraded the suggested affirmative procedure to super-affirmative. This step resulted in an extension to the allocated time for consideration and allowed for material amendments to be made. The main point of contention so far as the House of Lords Committee was concerned related to the scope of the proposed changes to section 4 of the Cancer Act 1939, a matter on which we had no concerns.[3]. That Committee also sought amendment of the recital in respect of Wales.[4]

5.  Section 4 of the Cancer Act 1939 makes it an offence to publish any advertisement offering treatment for cancer, subject to certain defences. The draft Order sought to remove the need for local authorities to obtain the consent of the Attorney General before a prosecution under that section was initiated and to change the duty to prosecute into a discretion. The House of Lords Committee agreed that this would remove a burden on both local authorities and the Attorney General. But it took issue with the intention to include metropolitan district councils in the dispensation because when the Local Government Act 1985 abolished metropolitan county councils the function of prosecuting under section 4(7) of the Cancer Act 1939 was not transferred to metropolitan district councils.

6.  In our First Report we sided with the view taken by CLG that:

"…this amendment is an appropriate supplementary or incidental provision as referred to in section 1(8) of the Legislative and Regulatory Reform Act 2006 and can also be viewed as the removal of a burden of administrative inconvenience".[5]

7.  The Delegated Powers and Regulatory Reform Committee on the other hand argued:

"…we cannot agree that the absence of a power to prosecute is an administrative inconvenience within the definition of 'burden' in the 2006 [Legislative and Regulatory Reform] Act. We thus recommend that the draft Order be amended so as not to extend to metropolitan district councils".[6]

8.  In accordance with the super-affirmative procedure,[7] a revised draft Order was laid before Parliament on 26 June 2008, along with a statement of the proposed revisions. These included the introduction of the non-material changes we asked to be accommodated and an acceptance of the amendments recommended by the House of Lords Committee.

9.  Whilst we stand by our assessment of the original draft Order, we are content with the proposed amendments and recommend that the revised draft Order be made.


1   First Report from the Regulatory Reform Committee of Session 2007-08: The Draft Legislative Reform (Local Authority Consent Requirements) (England and Wales) Order 2007 (HC135). Back

2   First Report from the Delegated Powers and Regulatory Reform Committee, Session 2007-08 (HL 11). Back

3   See Ibid, para43 and First Report from the Regulatory Reform Committee, Session 2007-08, paras 16 and 18. Back

4   We welcomed the CLG's commitment to clarify the drafting on this point and did not consider it would amount to a material change. See para45 of our First Report, Session 2007-08. Back

5   First Report from the Regulatory Reform Committee Session 2007-08, p7, paras 16 and 18. Back

6   First Report from the Delegated Powers and Regulatory Reform Committee, Session 2007-08, para43. Back

7   Section 18(7) of the Legislative and Regulatory Reform Act 2006. Back


 
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Prepared 10 July 2008