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Local Democracy, Economic Development And Construction Bill [HL]


 

These notes refer to the Local Democracy, Economic Development and Construction Bill [HL] as introduced in the House of Commons on 30 April 2009

LOCAL DEMOCRACY, ECONOMIC DEVELOPMENT AND CONSTRUCTION BILL [HL]


EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Local Democracy, Economic Development and Construction Bill [HL] which was introduced into the House of Commons on 30 April 2009. They have been prepared by the Department for Communities and Local Government in order to assist the reader in understanding the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

STRUCTURE OF THE BILL

3.     The Bill is set out as follows:

Part 1 - Democracy and Involvement

     Chapter 1 - Duties Relating to Promotion of Democracy

     Chapter 2 - Petitions to Local Authorities

     Chapter 3 - Involvement in Functions of Public Authorities

     Chapter 4 - Housing

Bill 93—EN                                              54/4

     Chapter 5 - Local Freedoms and Honorary Titles

     Chapter 6 - Membership of Local Authorities

Part 2 - Local Authorities: Governance and Audit

     Chapter 1 - Governance

     Chapter 2 - Audit of Entities connected with Local Authorities

Part 3 - Local Government Boundary and Electoral Change

Part 4 - Local Authority Economic Assessments

Part 5 - Regional Strategy

Part 6 - Economic Prosperity Boards

Part 7 - Multi-Area Agreements

Part 8 - Construction Contracts

Part 9 - Final Provisions

TERRITORIAL EXTENT

4.     Parts 1 to 7 of the Bill extend to England and Wales only, subject to some minor exceptions (see below). Part 8 extends to England and Wales and Scotland.

TERRITORIAL APPLICATION: WALES

5.     In Part 1, Chapters 1 and 2 apply to Wales as they apply to England and, where functions are conferred on the Secretary of State in relation to England, they are conferred on the Welsh Ministers in relation to Wales. Chapters 3 and 4 apply to England only and Chapters 5 and 6 apply to England and Wales.

6.     In Part 2, clauses 30 and 31 do not apply to Wales. Section 32 applies only to Wales and confers measure-making powers on the National Assembly for Wales in relation to governance and overview and scrutiny arrangements of local authorities (see the commentary on that clause). Chapter 2 of Part 2 applies equally to England and Wales and confers functions on the Welsh Ministers in relation to Wales.

7.     Part 3, which relates to local government boundary and electoral change, applies on the whole only to England, but there are some repeals to uncommenced provisions of the Political Parties, Elections and Referendums Act 2000 (“PPERA”) which apply to Wales. See the commentary on that Part.

8.     Parts 4, 5, 6 and 7 do not apply to Wales.

9.     Part 8 (construction contracts) applies to Wales as it applies to England.

TERRITORIAL APPLICATION: SCOTLAND

10.     Part 3 contains some amendments and repeals to PPERA which apply in relation to Scotland - see the commentary on that Part. Part 8 extends to Scotland and applies in Scotland as it applies in England and Wales.

11.     At Introduction this Bill contains provisions that trigger the Sewel Convention. These provisions are the ones referred to in the preceding paragraph. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. If there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.

TERRITORIAL APPLICATION: NORTHERN IRELAND

12.     Part 3 of the Bill repeals uncommenced provisions in PPERA that apply in relation to Northern Ireland.

COMMENTARY

PART 1: DEMOCRACY AND INVOLVEMENT

Background

13.     In December 2007, the report of the Councillors Commission Representing the future 1 was published. The report was an independent review of the incentives and barriers to serving on councils. In July 2008, the Government provided a response to the report in The Government Response to the Councillors Commission 2.


    1   http://www.communities.gov.uk/councillorscommission/publications/representingthefuture/

    2   http://www.communities.gov.uk/publications/communities/councillorscommissionresponse

14.     In July 2008, the Government’s White Paper Communities in control: real people, real power 3 was published. This paper set forward the Government's proposals for empowering local communities. Chapters 1, 2 and 3 of Part 1 follow on from that White Paper.


15.     The creation of a National Tenant Voice was one of Martin Cave’s recommendations in his review of social housing regulation (Every Tenant Matters (June 2007)) 4. Martin Cave recognised that whilst social landlords have well-established organisations in place to represent them at national level (not least in discussions with Government and the TSA), tenants lack such representation.


CHAPTER 1: GENERAL DUTY OF LOCAL AUTHORITIES

Summary

16.     This Chapter imposes duties on local authorities to promote understanding among local people of the opportunities that exist for members of the public to get involved in, and influence, the work of local authorities and other local public bodies.

17.     The duties apply to both England and Wales.

Commentary on Clauses

Clause 1 - Democratic arrangements of principal local authorities

18.     Subsection (1) places a duty on principal local authorities to promote understanding of their functions and their democratic arrangements. “Democratic arrangements” are defined under subsection (3). The subsection also requires those authorities to promote understanding of how members of the public can take part in those arrangements and what taking part is likely to involve.

19.     Subsection (2) expands on subsection (1)(c) to require principal local authorities to promote understanding of the role of councillors, how to become one, and the support that is available to councillors to assist them in their role.

20.     Subsection (3) defines the principal local authorities on whom the duty will be placed. This covers all county and district councils in England (including unitary authorities), London borough councils and the Common Council of the City of London, and county and county borough councils in Wales.

21.     Subsection (3) also defines “democratic arrangements” to mean the arrangements for people to participate in or influence the making of decisions including where those decisions are made by the local authority in partnership or conjunction with any other person. This would include opportunities for people to participate in or influence the making of decisions by: contributing views through consultations, forums and public meetings; directly electing or making representations to councillors and other representatives; standing as a councillor or taking on other civic roles such as school governor or independent custody visitor.

Clause 2 - Democratic arrangements of connected authorities

22.     Subsection (1) places a duty on principal local authorities to promote understanding among local people of public bodies (referred to as ‘connected authorities’) which relate to the authority’s area. It requires principal local authorities to promote understanding of what these bodies do and their democratic arrangements, as defined in section 1(3). It also requires them to promote understanding of how members of the public can take part in those arrangements and what taking part is likely to involve.

23.     Subsections (2) and (3) specify what the connected authorities are in England. These are public bodies or persons that have a strong local presence, making decisions that are directly relevant to local people in the principal local authority’s area and include:

  • health bodies;

  • police bodies;

  • fire and rescue authorities;

  • waste bodies;

  • schools and Further Education colleges;

  • National Park and Broads authorities;

  • transport authorities;

  • probation services;

  • parish councils and meetings in England;

  • for a county council in a two-tier area, a district council;

  • for a district council in a two-tier area, a county council;

  • for London boroughs and the City, the Greater London Authority and Transport for London.

24.     The inclusion of the chief officer of police as a “connected authority” means that the principal local authority will be expected to promote understanding about the work of the police force as a whole, including “neighbourhood policing” in which every area has a neighbourhood policing team and “the policing pledge” which sets out both locally and nationally the standards the public can expect from the police.

25.     Subsections (4) and (5) specify what the connected authorities are in Wales. Subsection (4) largely replicates, in relation to Wales, the provisions of subsection (2), save that the connected authorities do not include Further Education colleges nor those bodies which operate only in England but include equivalent Welsh bodies where appropriate.

26.     Subsection (6) enables the “appropriate national authority” (the Secretary of State for England and the Welsh Ministers for Wales) by order to:

  • add any person or body who has functions of a public nature to the list of connected authorities;

  • remove a connected authority from the list of connected authorities;

  • add or remove the functions of the Secretary of State on the list of connected authorities (this is relevant to subsection (2)(c)).

Clause 3 - Monitoring boards, courts boards and youth offending teams

27.     This clause places a duty on principal local authorities to promote understanding among local people of courts boards, independent monitoring boards (IMBs) for prisons and immigration removal centres and Youth Offending Teams (YOTs).

  • Courts boards give advice and make recommendations to achieve effective and efficient administration of the courts. This advisory role extends across the civil, family and criminal jurisdictions.

  • Independent monitoring boards are appointed for every prison and immigration removal centre. They monitor conditions in the local prison or removal centre and ensure that proper standards of care and decency are maintained.

  • YOTs are established for every local authority in England and Wales and are responsible for co-ordinating the work of the youth justice services. YOTs identify the needs of each young offender and then identify suitable programmes to address those needs with the intention of preventing further offending.

28.     Principal local authorities are required to provide information about what these bodies do, how to take part in their work and what this is likely to involve.

Clause 4 - Lay justices

29.     This clause places a duty on principal local authorities to promote understanding among local people about lay justices. Lay justices are unsalaried magistrates, as opposed to District Judges (Magistrates’ Courts) (previously known as stipendiary magistrates) who are full-time members of the judiciary. Principal local authorities are required to provide information about what lay justices do, how a member of the public can become a lay justice and what the role involves.

Clause 5 - Provision of information

30.     Subsections (1) and (2) provide that the duties in clauses 2 to 4 do not apply to principal local authorities if information has not been provided by the connected authorities, monitoring boards, courts boards, youth offending teams and (in the case of lay justices) the Lord Chancellor after it has been requested of them.

31.     Subsections (3) and (4) provide the appropriate national authority with the power to make an order to require one or more connected authorities or the bodies listed under section 3(2) to provide information to the principal local authorities. It is intended that this power will only be used if the intention of the duty is significantly frustrated by the failure of one or more authorities to provide the necessary information to the principal local authorities.

32.     Subsection (5) provides that subsections (1) to (3) do not apply to a district council in a two-tier area, because alternative arrangements for those principal local authorities are covered in subsection (6).

33.     Subsection (6) establishes how the duties in clauses 2 to 4 would operate in two-tier areas. Districts in two-tier areas will be required to promote understanding of the matters in clauses 1 to 4. However, county councils are responsible for requesting the information, at least once a year, from persons listed under clauses 2, 3 and 4 on behalf of the district councils. The county council must then pass on information it receives to the district councils. Where a county has been informed of material changes to information previously disseminated to its districts, it will be required to inform the district councils accordingly. District councils in two-tier areas will not have failed to meet their duties under clauses 2, 3 and 4 if the necessary information has not been passed to them by the county council.

Clause 6 - Guidance

34.     This clause provides that the appropriate national authority may produce guidance to principal local authorities on how to fulfil their duties under clauses 1, 2, 3 and 4. Before guidance is given, it must be consulted upon with the relevant principal local authorities. This guidance may be given generally, or tailored to the needs of different councils if appropriate, and must be published. Principal local authorities must have regard to any statutory guidance which applies to them.

Clause 7 - Isles of Scilly

35.     This clause provides the Secretary of State with the power to apply the duties in this Chapter, with or without modifications, to the Scilly Isles.

Clause 8 - Orders under this Chapter

36.     This clause specifies that any order made under this Chapter is to be made by statutory instrument. An order made by the Secretary of State is to be subject to negative resolution procedure.

CHAPTER 2: PETITIONS TO LOCAL AUTHORITIES

Summary and Background

37.     Clause 10 places duties on principal local authorities in England and Wales in relation to electronic petitions signed by those who live, work or study in the local area. Clause 11 requires principal authorities to make, publicise and comply with a scheme for handling both paper and electronic petitions. The intention of this Chapter is to make local decision-making in relation to petitions made to principal local authorities more transparent, by requiring them to respond to petitions which meet certain criteria, and making the response to petitions publicly available.

Clause 10 - Electronic petitions

38.     Clause 10 requires principal local authorities to provide a facility for people to make petitions electronically. Principal local authorities are defined in subsection (3).

Clause 11 - Petition scheme

39.     Clause 11 requires principal local authorities to make, publicise and comply with a scheme for handling both paper and electronic petitions. Subsection (7) makes it clear that existing powers and duties relating to petitions continue unaffected by the provisions in this Chapter.

Clause 12 - Petitions to which a scheme must apply

40.     Clause 12 makes provision about the petitions to which a petition scheme must apply. These are petitions which:

  • request the authority to take action or cease taking action;

  • are signed by at least the number of people specified in the petition scheme;

  • are not made under any other enactment. Petitions made successfully under other statutory provisions - for example, a petition requiring a local authority to hold a referendum on executive arrangements, pursuant to regulations made under section 34 of the Local Government Act 2000 do not come within the petition scheme; and

  • if made in electronic form, are made using the principal local authority’s e-petitions facility.

What amounts to “signature” for the purposes of an e-petition is a matter to be specified by authorities in their schemes. It may be, for example, that an authority will specify that entering an email address will constitute “signature” for this purpose.

Clause 13 - Requirement to acknowledge petitions

41.     Clause 13 requires petition schemes to ensure that petitions are acknowledged in writing within a time specified in the scheme. The acknowledgement must say what the authority intends to do in response to the petition. For example, if an authority proposes to do whatever it is called on to do by the petition, it may be that a single letter confirming this will be sufficient.

Clause 14 - Requirement to take steps

42.     Clause 14 requires principal local authorities to take one or more steps in response to petitions which meet the criteria set out in subsections (1) and (2) and are therefore “active” petitions. Authorities in England and Wales must take one or more substantive steps in response to a petition which relate to the authority’s functions. In England, principal authorities other than non-unitary district councils must also take steps in response to petitions relating to an improvement in the local economic, social or environmental well-being to which any of the partner authorities could contribute.

43.     There is no duty to take any substantive step in relation to petitions which are vexatious, abusive or otherwise inappropriate to be dealt with. The appropriate national authority has power to make an order to provide that certain principal local authority functions are excluded, so that petitions on these subjects would not be “active”.

44.     Subsection (6) sets out some examples of what the substantive steps might be and requires principal authorities to ensure that their petitions schemes include as a minimum all the listed examples as possibilities. Subsection (7) ensures that the petition organiser is told what steps will be taken, and that this information must be publicly available online unless it is inappropriate because, for example, it would breach someone’s right to privacy.

Clause 15 - Requirement to debate

45.     Clause 15 gives an automatic right for the matter raised in a petition to be debated by the full council if more than a specified number of people have signed it. The trigger number must be specified in the petition scheme. The appropriate national authority has the power to issue guidance as to the threshold figure which is appropriate, to specify by order a threshold figure applicable to all principal authorities, or to direct a principal authority to amend its petitions scheme, including the threshold specified in it.

Clause 16 - Requirement to call officer to account

46.     Clause 16 provides that certain senior officers of a principal local authority can be called to account at a public meeting. It is up to principal authorities to determine which of their officers are liable to be called to account, but their petition schemes must ensure that as a minimum the head of paid service, often known as the chief executive of the authority and the most senior officers responsible for the delivery of services can be required to attend meetings of overview and scrutiny committees when requested to do so by a petition with a number of signatures above the threshold in the authority’s scheme. The reasons for the request must relate to the officer’s job functions.

47.     Authorities operating executive arrangements are required by section 21 of the Local Government Act 2000 to have overview and scrutiny committees. The functions in this clause are performed by the overview and scrutiny committee in the case of such authorities. Authorities which do not operate executive arrangements are currently required by regulations made under section 32 of the Local Government Act 2000 to have committees which carry out essentially the same functions as overview and scrutiny committees - and this clause has the effect of conferring the public hearing function on such committees.

Clause 17 - Review of steps

48.     Clause 17 gives the petition organiser (see clause 22) the power to ask an overview and scrutiny committee (or its equivalent in authorities not operating executive arrangements) to review the principal local authority’s response to their petition, if the organiser is not satisfied with the steps taken by the authority under clause 14. The overview and scrutiny committee may arrange for the full council to carry out this function - that is to say the response of the authority to the petition could be discussed at a meeting of the full council. The principal local authority must inform the petition organiser of the outcome of this review.

Clause 18 - Supplementary scheme provision

49.     Clause 18 sets out other issues which principal local authorities’ schemes may include.

Clause 19 - Powers of appropriate national authority

50.     Clause 19 sets out the powers of the appropriate national authority (the Secretary of State in relation to principal authorities in England and the Welsh Ministers in relation to principal authorities in Wales) to issue guidance in relation to the discharge of the petition function by principal authorities. This power includes a power to create a model petitions scheme which authorities will be able to adopt. The appropriate national authority has power to direct an individual principal authority to amend its petition scheme, for example, if an authority set an inappropriately high threshold for the number of signatures which triggers the right to a debate of the full council, the appropriate national authority could require an authority to set a lower threshold. There is also a power to make orders applicable to all principal authorities to require them to make particular provision in their petition schemes.

Clause 20 - Handling of petitions by other bodies

51.     Clause 20 enables the appropriate national authority to apply the petitions obligations of this chapter to different categories of local authority specified in clause 20(2). The power permits the petitions obligations to be applied with modifications to take account of differences in the way such local authorities operate.

 
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