3 Assessment of the draft Order
13. Our role is to assess whether the proposals meet
the statutory conditions required of an order under the Legislative
and Regulatory Reform Act 2006 (the "2006 Act"), and
to examine the proposals against a number of tests. Standing Order
No.141 sets out the criteria under which the Committee makes that
assessment. In this section we assess the draft Order against
those criteria.
A: APPEARS TO MAKE AN INAPPROPRIATE
USE OF DELEGATED LEGISLATION
14. The draft Order does not make an inappropriate
use of delegated legislation and therefore does not raise any
issues in respect of this test.
B: SERVES THE PURPOSE OF REMOVING
OR REDUCING A BURDEN, OR THE OVERALL BURDENS, RESULTING DIRECTLY
OR INDIRECTLY FOR ANY PERSON FROM ANY LEGISLATION (IN RESPECT
OF A DRAFT ORDER UNDER SECTION 1 OF THE ACT)
15. A burden is defined in s1(3) of the 2006 Act
as any of the following: a financial cost; an administrative inconvenience;
an obstacle to efficiency, productivity or profitability; or a
sanction, criminal or otherwise, which affects the carrying on
of any lawful activity.
16. In its Explanatory Document, the Department sets
out the process by which either a local authority or local campaigners
can trigger a review in order to create a new town or parish council.[18]
The Cabinet Office White Paper Open Public Services had
found that the existing legislation for triggering a review "placed
unnecessary burdens on campaigners",[19]
and the Department argues that the current requirements:
· were
too demanding for campaigners to meet the "unrealistically
high" requisite number of electorate signatures required
to demonstrate support to trigger a review;
· that
the timetable allowed for the principal councils to complete the
review was too long and made it difficult for campaigners to "maintain
the momentum necessary to sustain support over a prolonged period
of time"; and
· that
it failed to recognise the status Neighbourhood Forums have within
their communities, particularly where the forum has had its neighbourhood
development plan passed by the community in a referendum.[20]
17. The Department argues that the removal of these
burdens would "improve the experience for local communities
and campaigners alike, making it easier for them to take the first
steps towards setting up a town or parish council".[21]
18. While we accept the
Government's position that these represent burdens as set out
in the 2006 Act, we note that the House of Lords Delegated Powers
and Regulatory Reform Committee has questioned the extent to which
the Department's explanatory document has fully addressed the
burdens test. In doing so, that Committee has recommended the
Super-affirmative procedure in order to give the Department time
to further clarify its position.
C: SERVES THE PURPOSE
OF SECURING THAT REGULATORY FUNCTIONS ARE EXERCISED SO AS TO COMPLY
WITH THE REGULATORY PRINCIPLES, AS SET OUT IN SECTION 2(3) OF
THE ACT (IN RESPECT OF A DRAFT ORDER UNDER SECTION 2 OF THE ACT)
19. The draft Order does
not raise any issues in respect of this test.
D: SECURES A POLICY
OBJECTIVE WHICH COULD NOT BE SATISFACTORILY SECURED BY NON-LEGISLATIVE
MEANS
20. The
Department states that "no non-legislative solution is possible"[22]
and that amending the 2007 Act is therefore necessary. We
conclude that this requirement has been satisfied.
E: HAS AN EFFECT WHICH
IS PROPORTIONATE TO THE POLICY OBJECTIVE
21. We agree that the effect
is proportionate to the policy objective.
F: STRIKES A FAIR
BALANCE BETWEEN THE PUBLIC INTEREST AND THE INTERESTS OF ANY PERSON
ADVERSELY AFFECTED BY IT
22. We agree that this requirement
has been satisfied.
G: DOES NOT REMOVE
ANY NECESSARY PROTECTION
23. The Department states that no protections will
be removed as a result of the draft Order:
In order to be valid, a petition or application for
a community governance review will still require a strong degree
of local support. A council will still have an adequate time period
to consider all submitted proposals and conduct any review. No
changes have been made to the ability of a council to determine
what recommendations to make in the best interests of the community
as a whole.[23]
24. We conclude that the
draft Order does not remove any necessary protections.
H: DOES NOT PREVENT
ANY PERSON FROM CONTINUING TO EXERCISE ANY RIGHT OR FREEDOM WHICH
THAT PERSON MIGHT REASONABLY EXPECT TO CONTINUE TO EXERCISE
25. The draft Order does
not raise any issues in respect of this test.
I: IS NOT OF CONSTITUTIONAL
SIGNIFICANCE
26. The Department confirms
that the proposals are not of constitutional significance.
J: MAKES THE LAW
MORE ACCESSIBLE OR MORE EASILY UNDERSTOOD (IN THE CASE OF PROVISIONS
RESTATING ENACTMENTS)
27. The draft Order does
not raise any issues in respect of this test.
K: HAS BEEN THE SUBJECT
OF, AND TAKES APPROPRIATE ACCOUNT OF, ADEQUATE CONSULTATION
28. The Department states that it has undertaken
"extensive engagement throughout the local government sector"
regarding the proposals. A formal consultation ran from October
2012 to January 2013 which considered a wide number of proposals
to amend the 2007 Act. This was followed by a further formal consultation
which ran from March 2014 to May 2014. That consultation contained
proposals which had been modified in light of responses to the
previous consultation.[24]
29. We conclude that the
draft Order has been subject to adequate consultation.
L: GIVES RISE TO
AN ISSUE UNDER SUCH CRITERIA FOR CONSIDERATION OF STATUTORY INSTRUMENTS
LAID DOWN IN PARAGRAPH (1) OF STANDING ORDER NO. 151 (STATUTORY
INSTRUMENTS (JOINT COMMITTEE)) AS ARE RELEVANT
30. The draft Order does
not raise any issues in respect of this test.
M: APPEARS TO BE
INCOMPATIBLE WITH ANY OBLIGATION RESULTING FROM MEMBERSHIP OF
THE EUROPEAN UNION.
31. The draft Order does
not raise any issues in respect of this test.
32. We conclude that the draft
Order meets the required preconditions and tests.
18 Explanatory Document, paras 5-9 Back
19
Explanatory Document, para 11 Back
20
Explanatory Document, para 12 Back
21
Explanatory Document, para 13 Back
22
Explanatory Document, para 40 Back
23
Explanatory Document, para 45 Back
24
Explanatory Document, paras 53 and 54 Back
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