Select Committee on Delegated Powers and Deregulation Ninth Report


Memorandum by the Department of the Environment, Transport and the Regions

Purpose of the Bill

The purpose of the Bill is to enable local authorities in England and Wales to operate, for a temporary period, experimental arrangements with respect to the way in which they take decisions. The Bill would permit a range of experiments. An authority's experiment could last a maximum of 8 years extendable once by up to four more years; at the end of this period, no further experiments would be allowed by that authority under this legislation.

The House of Lords Select Committee on Relations Between Central and Local Government, chaired by Lord Hunt, recommended in its report "Rebuilding Trust" (HL Paper 97) that "..there should be greater use of enabling legislation to allow local authorities to experiment with internal working..". This Bill gives effect to that recommendation. Lord Hunt has introduced this Bill at the Government's invitation and with its full support. The Bill is an important step in meeting the Government's manifesto commitment to "encourage democratic innovations in local government, including pilots of the idea of elected mayors with executive powers".

The Bill provides for local authorities to apply to the Secretary of State for his approval to run an experiment involving one or more of the experimental arrangements set out in clause 1(2) and (3). None of these experimental arrangements would be permitted but for the provisions of this Bill. Clause 3 is concerned with the approval of such applications. It gives the Secretary of State order making powers which the Government considers necessary and appropriate to permit the authority concerned to operate the experiment for a specified period, including making modifications to enactments in relation to that authority which the Secretary of State considers necessary or expedient for or in connection with the experimental arrangements. The Bill also contains provisions relating to the variation, extension and termination of experiments.

Provisions which create delegated powers

Clause 3

Subsections (3) to (9)

Delegated powers

Subsection (3) imposes a duty on the Secretary of State to make an order in a case in which he has approved an application under clause 2 of the Bill. Subsection (4) contains a list of matters which the order must or may include. For example, the order must specify the period during which the experimental arrangements may be operated (paragraph (a)); it may specify, and give effect to, such of the modifications set out in the Schedule to the Bill as the Secretary of State thinks necessary or expedient for or in connection with the arrangements (paragraph (c)); it may make such other modifications of enactments as the Secretary of State thinks necessary or expedient (paragraph (d)); it may specify conditions subject to which the local authority may operate the arrangements (paragraph (h)).

Subsections (4)(f), (5) and (7) will allow the modifications given effect to by an order to apply differently in relation to different functions, for example, or for different periods. Provision is included to enable an order to permit a local authority to take steps towards the election of an elected mayor ahead of the specified period of the experiment (subsection (6)). Subsection (8) provides that the power to make modifications includes a power to apply enactments with or without modifications.

Reason for delegating power

It will be necessary for express provision to be made in relation to a particular local authority which permits them to operate the experimental arrangements, fixes the maximum length of their experiment, and sets out any conditions the Secretary of State thinks appropriate. This type of provision, being individual to each successful applicant authority, is not appropriate for primary legislation.

On the subject of the powers to specify, give effect to and make modifications, the operation of experimental arrangements involves operating under different legislative provisions from those currently in place and there therefore need to be changes to the existing primary and secondary legislation. To achieve this it is necessary for orders of the Secretary of State to be able to apply, or make, modifications to such legislation in relation to the particular local authority concerned and for the temporary period specified in the order.

The Schedule to the Bill sets out the most significant changes which it is considered will be required to permit the arrangements set out in clause 1(2) and (3). However, there will almost certainly need to be consequential modifications and, depending on the nature of the authority's experiment, additional modifications. Since the purpose of the Bill is to allow a range of different experiments in different authorities (the nature of which it is not possible to anticipate) it is not feasible to set out every modification which it may prove necessary, on consideration of the detail of the local authority's proposals, to make. It is thus considered appropriate for the order-making power of the Secretary of State to allow him to tailor­make the selection of modifications applied or made to match the particular experiment which he has approved.


Such orders of the Secretary of State will be subject to the negative resolution procedure (subsection (9)); this procedure is considered appropriate because the arrangements are of a temporary nature. The changes to primary or secondary legislation which the orders will make are limited to those necessary or expedient for the purposes of the arrangements listed in clause 1(2) and (3) and will be made by way of modification (rather than, for example, amendment). Parliamentary scrutiny will be aided by the Government's intention that copies of the relevant local authority's approved proposal will be placed in the library of each of House of Parliament at the time the order is laid.

There is a near precedent, in the field of local government legislation, for a power to make permanent modifications (and, indeed, amendments, repeals and revocations) in orders and regulations being made under the negative resolution procedure (section 26(1) and (4) of the Local Government Act 1992). While it is true that that power relates to incidental, etc, provision only, it is nevertheless a wide power to make permanent amendments, modifications, repeals and revocations of general effect (in contrast to the modifications of temporary and local effect which may be made under this Bill).

Clause 6

Subsections (4) to (8)

Delegated powers

Clause 5 permits a local authority to apply to the Secretary of State for approval to extend, to vary, or to extend and vary the experimental arrangements they are operating. Should the Secretary of State approve the application he is under a duty to make an order to permit such an extension or variation. Subsection (4) imposes a duty on the Secretary of State to amend an existing order under clause 3 to extend the experimental period; subsection (5) imposes a duty on him to make an order allowing variation experimental arrangements to be operated; subsection (6) imposes a duty on him to make an order allowing varied experimental arrangements to be operated for a period additional to that specified in the order under clause 3.

Subsection (7) contains provision comparable to that in clause 3(6); subsection (8) applies provisions relating to orders under clause 3 to orders under clause 6.

Reason for delegating power

As is explained in relation to clause 3, the Secretary of State needs delegated powers because express provision is required to permit the extension and/or variation, but each case will be different.


Orders under this clause will be subject to the negative resolution procedure (subsection (11)). The same reasons apply as are given in relation to orders under clause 3. There is an additional reason in relation to an order under subsection (4) in that it will amend an existing order and thus needs to be subject to the same procedure.

Clause 11

Delegated powers

Subsection (9) gives the Secretary of State power to make an order, subject to the negative resolution procedure (subsection (11)), revoking an order which permits a local authority to experiment and making such supplemental, incidental, consequential or transitional provision as he thinks necessary or expedient. (The power is without prejudice to section 14 of the Interpretation Act 1978).

Reason for delegating power

Since the purpose of the power is to undo the arrangements provided for under an order under clause 3 or 6 it is appropriate for the power to be in delegated legislation.


The negative resolution procedure is considered appropriate because the effect of the order is to return the enactments which have been modified to the "unmodified" state applying in relation to local authorities who are not experimenting.

10 December 1997

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