TWELFTH REPORT |
By the Select Committee appointed to report whether
the provisions of any bill inappropriately delegate legislative
power, or whether they subject the exercise of legislative power
to an inappropriate degree of parliamentary scrutiny; to report
on documents laid before Parliament under section 3(3) of the
Deregulation and Contracting Out Act 1994 and on draft orders
laid under section 1(4) of that Act; and to perform, in respect
of such documents and orders, the functions performed in respect
of other instruments by the Joint Committee on Statutory Instruments.
Local Government Bill
1. The purpose of this bill is "to make
provision imposing on local and certain other authorities requirements
relating to economy, efficiency and effectiveness; and to make
provision for the regulation of council tax and precepts."
2. The Department's memorandum identifies the
powers contained in the bill, describes how they might be used
and justifies the Parliamentary control provided for them. The
bill confers power to make orders and regulations and also provides
for "guidance" and "directions". Those powers
are also discussed in the memorandum. Part II of the bill is concerned
with the regulation of council tax and precepts and builds on
the Local Government Finance Act 1992 (to which Schedule 1 to
the bill adds a new Chapter of 24 sections). As this Part is concerned
with money the Parliamentary controls under it are conferred on
the Commons only.
3. Clause 2 confers three powers to extend or
disapply the "best value" provisions of the bill. Each
is subject to affirmative procedure (subsection (6)), which the
Committee considers appropriate.
4. Clause 15 confers on the Secretary of State
two powers (or strictly speaking one power with two subject matters).
Subsection (1) allows him to make an order modifying or excluding
any enactment which prevents or obstructs compliance with Part
I of the bill. Subsection (2) allows an order to confer on best
value authorities any power which the Secretary of State considers
necessary or expedient to permit or facilitate compliance with
Part I. The remainder of the clause and clause 16 supplement clause
15(1) and (2). The House will wish to note that this is a Henry
5. The procedure for making an order under clause
15 resembles that for making a deregulation order under the Deregulation
and Contracting Out Act 1994 but does not contain any reference
to Parliamentary consideration. Unlike the power to make deregulation
orders, however, the clause 15 power is for a specific purpose,
and the Committee is satisfied that it is appropriate that the
power should be delegated and that affirmative procedure is appropriate.
The additional provisions about consultation (clause 16(1)) and
laying before Parliament (Clause 16(2) to (5)) do not include
the words in section 4(4) of the 1994 Act which require the minister
to have regard to "any resolution or report of or of any
committee of, either House of Parliament with regard to the [proposal]".
The Committee considers that this departure from the 1994 Act
precedent is justified; the special arrangements in that Act were
necessary because of the uncertain width of the powers, while
in comparison, clause 15 has a clear and limited purpose.
6. The sections to be inserted in the 1992 Act
by Schedule 1 include affirmative powers (in section 52F(4), 52H(2),
52Q(2), 52S(2) and 52X(6)). In each case control is given to the
Commons only, which the Committee considers appropriate in view
of the financial subject matter of the powers.
7. All other powers to make orders or regulations
(except the commencement power) are subject to negative procedure.
8. As the Government's explanatory notes explain,
"clause 14 offers the Secretary of State a wide range of
intervention powers". In exceptional circumstances, subsection
14(8) allows the Secretary of State to give a direction to the
best value authority without allowing an interval for representations
such as is set out at subsections 14(6) and 14(7).
During the second reading debate concern was expressed that Clause
14 does not specify the basis on which the Secretary of State
would use this direction-giving power,
which the Minister said would "be used as a last resort when
all other measures have failed".
Since this is not a secondary legislative power, it is not for
this Committee to comment on it. The House may, however, wish
to note that non-statutory safeguards will be provided in the
form of a Protocol on Intervention to be agreed between central
government and the Local Government Association under the Framework
for Central Local Partnership.
9. The bill makes special provision for Wales.
Clause 28(1) translates references in Part I (other than clauses
15 to 17 and 26) to the Secretary of State to references to the
Assembly and excludes the requirements of affirmative and negative
procedure. So orders or regulations applying to Wales other than
those made under clauses 15 to 17 would be made by the Assembly.
10. Similar provision is made for Part II by
clause 30(13) and, in Schedule 1, section 52Z.
11. The House will wish to note the Henry VIII power
in clause 15. There is nothing else in the bill which the Committee
wishes to draw to the attention of the House.
1 Paragraphs 44 and 45. Back
HL Deb., 12 April 1999, col. 585. Back
HL Deb., 12 April 1999, col. 573. Back
Paragraph 74 of the Department's Memorandum. Back