Select Committee on Delegated Powers and Deregulation Ninth Report


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

This Memorandum, submitted by the Department for the Environment, Transport and the Regions, identifies those provisions of the Bill which give powers to make delegated legislation. It explains the purpose of the relevant power, the reason why the matter is to be left to delegated legislation, and the nature of, and the reason for, the procedure selected.

Outline and Scope of the Bill

The Bill provides for a referendum of London residents to be held on the Government's proposals for a Greater London Authority. Amongst other things, the Bill sets out the form of the ballot papers, makes provision as to who may vote and for the counting of votes.

The Bill also includes provisions to prepare the way for the Greater London Authority. It confers additional functions on the Local Government Commission for England to enable it to make recommendations on the electoral areas of the assembly of the Greater London Authority at the direction of the Secretary of State, and provides for expenditure by the Secretary of State in preparation for the authority.

Proposals for Subordinate Legislation

Clause 1(1) of the Bill provides that the referendum should be held on 7th May 1998 or on such later date as Her Majesty should prescribe by Order in Council. Such a power is necessary to enable the referendum to be rescheduled without recourse to further primary legislation, in the event that unforeseeable circumstances forced its postponement.

Clause 4(2) enables Her Majesty to make provision by Order in Council relating to the conduct of the referendum and, in the event that it takes place on the same day as local elections, its combination with local elections. The subsection enables such an Order to apply, with or without modifications, primary and secondary legislation. This will enable existing law, and in particular existing electoral law, to apply for the purposes of the referendum, subject to modifications to take into account the differences between a referendum and an ordinary election. This subsection also enables provision to be made relating to the combination of the referendum with local polls, which are being held in the London Boroughs on 7 May 1998. Such provisions will cover such matters as the sharing of facilities, the separation of votes and the combination of absent voting procedures. It is not considered appropriate that detailed provision about essentially technical and procedural matters such as those covered by this subsection should be made in the Bill itself.

Clause 2(2) is supplementary. It essentially permits an Order in Council under Clause 4(2) to provide that an alteration to a register of electors made after a specified date should be disregarded for the purposes of the relevant referendum notwithstanding the provisions about who may vote in Clause 2(1). If it were not possible to make such provision, last minute changes to the register would have to be given effect to for the purposes of a referendum. That would cause practical problems for returning officers, in particular in the event that the referendum took place on the same day as local elections. Under existing law, an alteration made in the register of electors after the last date on which nomination papers nominating candidates at a parliamentary, local government or European parliamentary election may be delivered to the returning officer does not have effect for the purposes of that election. Clause 2(2) will enable comparable provision to be made for the referendum.

These Orders will be subject to affirmative resolution procedure. This will reflect the fact that, although the matters to be dealt with in the Orders are essentially technical and procedural, they are nonetheless sufficiently important to merit the scrutiny which will follow in consequence of their being debated in both Houses. It is intended that copies of the current drafts of the Orders proposed to be made under these powers should be made available in the Library on the House's return from the Christmas Recess.

The use of Orders in Council subject to affirmative resolution procedure to make detailed provision as to the conduct of referendums is precedented in the Referendum Act 1975, the Scotland Act 1978 and the Wales Act 1978. The use of secondary legislation to make detailed provisions on other electoral matters is precedented in, inter alia, section 36 of the Representation of the People Act 1983, Schedule 1 to the European Parliamentary Elections Act 1978 and sections 6 to 9 of the Representation of the People Act 1985.

December 1997

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Prepared 19 December 1997