LOCAL GOVERNMENT BILL [HL]
1. This bill covers many different aspects of
local government law and contains many delegated powers. A number
of the powers in the bill have been considered by the Committee
last session in its pre-legislative scrutiny of the powers contained
in the draft Local Government (Organisation and Standards) Bill.
This report describes briefly all the powers in the bill and indicates
which of these the Committee has seen before (and where there
have been changes, mentions those).
2. The Department's Memorandum states that the
Government is already proposing to table a number of amendments
to the bill at committee stage which will confer new powers or
affect powers already in the bill. We do not think it satisfactory
to proceed in this way. The Committee can only properly assist
the House when there is time for the Committee to consider provisions
in the context of the bill as a whole before the House has to
do so. The proposals may significantly affect the delegated powers
in the bill but we cannot comment on them until we have seen the
amendments. The House will expect these to be tabled in time for
the Committee to be able to advise the House on them before they
are considered in Committee - this is the timescale we recommended
in our special report for 1998/99 and which was accepted on behalf
of the Government by Lord Carter.
3. Clause 2 is a new statement of the general
powers of a local authority. Subsection (3) of clause 3 allows
the Secretary of State to cut back these general powers by order
specifying activities which a local authority may not undertake.
This is obviously a wide-ranging power and the bill does not indicate
how it is to be used. The Memorandum describes the power as "a
reserve power to exclude particular activities where wider interests
might need to be protected" and adds that an amendment will
be brought forward to make the power subject to the draft affirmative
procedure (in place of the negative procedure which the bill applies
at present). The House will wish to consider whether affirmative
procedure meets concerns about the width of the power or whether
the purpose of preserving the balance between local and wider
interests should appear on the face of the bill.
4. The Committee notes that subsection (4) of
the clause requires local authorities to have regard to any guidance
issued by the Secretary of State before exercising a power under
clause 2(1). Subsection (5) requires the Secretary of State to
consult before issuing guidelines.
5. The clause confers a Henry VIII power on the
Secretary of State - a power by order to amend, repeal or revoke
any enactment that he thinks "prevents or obstructs local
authorities from exercising their power under [clause] 2(1)".
This is a wide power which would have troubled the Committee if
it had not been made subject to affirmative procedure by clause
69(5) and the special procedure set out in clause 8 (see below).
The Memorandum says that the Government may wish to bring forward
an amendment, on the lines of clause 6(4), to allow temporary
provision to be made.
6. This clause also creates a Henry VIII power
subject to affirmative procedure and the special procedure set
out in clause 8 (see note below). Subsection (1) allows the Secretary
of State to amend, repeal or disapply any enactment which "requires
a local authority to prepare, produce or publish any plan or strategy
relating to any particular matter". Subsection (2) allows
the power to be exercised in relation to a particular authority.
An order dealing with the powers of a particular authority would
be a hybrid instrument and so would have to be referred to the
House's Hybrid Instruments Committee. To avoid that, subsection
(5) provides that such an order is not to be treated as a hybrid
instrument. The Committee notes that such exclusory provisions
have been criticised on the floor of the House in the past, but
considers this example justified as the local authority concerned
will be consulted under clause 8.
7. The powers conferred by clauses 5 and 6 are
Henry VIII powers which are potentially wide ranging. This is
recognised in the Memorandum which concedes that "Parliament
will rightly expect [the power in clause 5] to be subject to rigorous
scrutiny procedures" (paragraph 52) and that similar considerations
apply to clause 6 (paragraph 60). Clause 8 provides scrutiny procedures
(and clause 69(5) applies affirmative procedure).
8. Subsection (1) of clause 8 requires consultation.
Subsection (2) requires the Secretary of State to lay before each
House a document setting out his proposals and an account of the
consultation together with a draft order. Subsection (3) gives
Parliament 60 days (defined in subsection (4)) to consider the
proposals before a draft order can be laid for approval. Subsection
(5) requires the Secretary of State to consider any representation
made during the 60 days. Subsection (6) requires a statement to
be laid with the final draft order giving details of any representation
and of any changes made to the proposals laid before Parliament
9. The Committee considers that without the constraints
in clause 8 it would be impossible to accept that the wide powers
in clauses 5 and 6 were appropriate. But the scrutiny procedure
in clause 8, which is not dissimilar to that governing deregulation
orders, together with affirmative procedure, satisfies the Committee
that the delegation is appropriate and that Parliament will have
appropriate control over the exercise of the powers.
Clause 10 (DRAFT clause 2)
10. Subsection (5) allows the Secretary of State
to make regulations creating an additional form of local authority
executive. Subsection (6) lists matters which can be dealt with
in the regulations. Affirmative procedure is applied by clause
69(4). That Subsection (6) illustrates ways in which the power
could be used and if these were the only ways, the Committee would
have no hesitation in advising that delegation is appropriate,
but subsection (5) is not so confined and we are concerned at
the delegation of a power wide enough to allow the creation of
a wholly novel form of local government. Paragraph 74 of the Department's
memorandum describes the power in these terms:-
"This is an enabling power to allow any new
forms of executive identified in future, as a result of local
authorities working with new arrangements, to be made legally
available to local authorities. There is no intention for this
power to be used in the near future."
We expressed no reservations about this power when
we considered it as part of our pre-legislative scrutiny but we
now consider that we should invite the House to consider whether
the power should be circumscribed to reflect what is said in the
memorandum so as to ensure that the power can only be exercised
after consultation with local authorities and with their consent.
11. Subsection (9) confers power by regulations
to amend subsection (8) of the clause to reduce the limit of 10
which that subsection places on the number of members of a local
authority executive which takes the form specified in subsection
(2) or (3). This is a Henry VIII power but it is extremely limited
and the Committee accepted that negative procedure (applied by
clause 69(4)) was appropriate when it reported on the draft bill.
Clause 11 (draft clause 3)
12. Clause 9 defines "executive arrangements".
In effect they are arrangements relating to an executive with
responsibility for the executive functions of a local authority.
Clause 11(1) allows the Secretary of State to make regulations
determining which functions of a local authority are executive
functions. Regulations will specify functions which may not be
the subject of executive arrangements and functions which may
(but need not be) the subject of those arrangements. Any function
not mentioned in regulations is an executive function as is, for
a particular authority, such functions specified in the "optional
list" in the regulations as the local authority chooses to
discharge as executive functions.
13. Clauses 12 to 14 make provision in relation
to the way in which a local authority executive is to be responsible
for executive functions. Clause 11(3) allows regulations to specify
circumstances in which executive functions must be discharged
by the authority and not in accordance with clause 12, 13 or 14.
14. The combined effect of subsections (1) and
(3) of clause 11 appears to be that regulations will determine
which functions must be discharged by the authority itself and
not its executive. Regulations are subject to negative procedure.
15. The Memorandum states that the Government
will bring forward an amendment to clause 11(1) to include an
additional power to specify functions which must be discharged
by the full council.
16. The Memorandum promises that draft regulations
will be available before the Lords Committee stage.
Clause 15 (draft clause 7)
17. This clause provides for the establishment
of overview and scrutiny committees to oversee the work of the
executive. Subsection (5) allows the Secretary of State to make
regulations (subject to negative procedure) dealing with the operation
and functions of these committees.
Clause 22 (draft clause 14)
18. Subsection (1) provides that the Secretary
of State may make regulations requiring a local authority which
receives a petition signed by not less than 5% of the electors
requesting a referendum on whether the local authority should
have an executive with an elected mayor "to hold such referendum
in such circumstances as may be prescribed in the regulations".
This is expanded by subsections (2), (3) and (4) which list some
of the matters which could be prescribed.
19. Subsection (5) allows regulations to amend
subsection (1)(a) i.e. to alter the requirement that 5% of the
electors support the petition.
20. The Memorandum states that the Government
will bring forward amendments to extend this power to circumstances
where the petition requests a directly elected mayor (with or
without specifying the form of executive to go with the mayor);
to allow regulations to specify how the 5% threshold is to be
calculated; and to allow various new kinds of petition (eg. telephone
voting and electronic signatures).
21. The Memorandum also explains that the Government
intend to introduce a bill creating an Electoral Commission and
that when it has been introduced, the government will come forward
with amendments to the Local Government Bill requiring the Commission
to be consulted about any regulations to be made under clauses
22 to 24, 29, 30 and 32.
22. Regulations under the clause are subject
to negative procedure and the Committee accepted that this was
appropriate when we reported on the draft bill. We are conscious
that the absence of limits on the face of the bill raises the
theoretical prospect of regulations lowering the barrier to a
derisory level or raising it to an unattainable one. But we do
not see this as at all likely and the proposed requirement to
consult the new Commission will provide an additional guard against
Clause 23 (draft clause 15)
23. Subsection (1) allows the Secretary of State
to make regulations requiring a local authority to hold a referendum
on whether there should be an executive with an elected mayor.
Subsections (2) to (4) cover provisions that can be included in
the regulations. Negative procedure applies.
24. The Memorandum states that amendments to
this clause are planned. One amendment will allow the Secretary
of State to direct an individual authority to hold a referendum
on any of the forms of executive. Another will allow him to require
all authorities, or authorities of a specified class or description,
to hold a referendum on any of the forms of executive. That power
will extend to dealing with the position which will arise if a
referendum held under it rejects the proposal - in such event
the Secretary of State may require the authority concerned "to
draw up, consult on and implement proposals for a different form
of executive ..." (para. 124).
Clause 26 (draft clause 18)
25. This clause allows the Secretary of State
to make regulations as to the timing of elections of elected mayors,
their term of office and the filling of vacancies. Clause 25(2)
provides that the term of office of an elected mayor is to be
four years unless regulations provide otherwise. Regulations are
subject to negative procedure. The Memorandum (paragraphs 132
to 136) explains the thinking behind this clause and justifies
its description of the power as concerned with transitional and
administrative matters. While the language of the clause is wide
enough to enable significant extensions to be made to the normal
period of office of a mayor, for reasons similar to those we have
given in relation to clause 22 we still consider that negative
procedure is appropriate.
Clause 29 (draft clause 21)
26. This clause provides for regulations to make
provision about elections to the office of mayor. Subsections
(2) and (3) list provisions which may be made by regulations and
these include creating offences in connection with election expenses
(subsection (2)(c)) and amending any enactment relating to the
registration of electors (subsection (3)(c)). As the latter is
a Henry VIII power, the Committee considers it satisfactory that
the regulations are subject to affirmative procedure.
Clause 30 (draft clause 22)
27. Subsection (3) allows the Secretary of State
by regulations to make provision as to the conduct of referendums.
Subsections (4) to (6) supplement subsection (3). Regulations
are subject to affirmative procedure. Similar provisions have
appeared in other bills which have come before the Committee,
and the Committee considers these appropriate.
28. This clause confers power by order to make
"such incidental, consequential, transitional or supplemental
provision" as the Secretary of State "considers necessary
or expedient for the purposes of, in consequence of, or for giving
full effect to, any provisions in this Part." Negative procedure
applies. The memorandum explains the need for the power which
extends to local Acts.
Clause 32 (draft clause 23)
29. This confers a power by order to make modifications
of enactments "which are no more than necessary to give full
effect to any provision of this Part". This includes repealing
or revoking enactments (subsection (2)(c)). This Henry VIII power
is subject to affirmative procedure.
Clause 34 (draft clause 25)
30. Subsection (1) of this clause allows the
Secretary of State by order to "specify the principles which
are to govern the conduct of members of relevant authorities in
England". Subsection (3) lists those the Secretary of State
must first consult. An order is subject to affirmative procedure.
31. Subsections (2) and (4) make similar provision
Clause 35 (draft clause 26)
32. Subsection (1) of this clause allows the
Secretary of State by order to issue a "model code as regards
the conduct which is expected of members of relevant authorities".
An order is subject to negative procedure. Subsections (2) to
(6) make related provision covering, for example, consistency
with the principles laid down under clause 34, consultation and
an invitation to representative bodies to draw up a proposed model
33. The clause also makes similar provision for
Clause 38 (draft clause 29)
34. Subsection (5) allows the Secretary of State
to make regulations about the size and composition of standards
committees, their membership and proceedings. Negative procedure
is applied. (The power has been slightly widened since appearing
in the draft bill but the Committee did not find it necessary
to reconsider its judgement.)
35. Subsection (6) makes similar provision for
Clause 39 (draft clause 30)
36. Subsection (4) allows the Secretary of State
to make regulations with respect to the exercise of functions
by standards committees. Negative procedure is applied.
37. Subsection (5) makes similar provision for
Clause 40 (draft clause 31)
38. This clause establishes a Standards Board
for England and another for Wales. Subsection (5) provides that
the Secretary of State may by order confer functions on the Standards
Board for England. An order is subject to negative procedure.
(The clause now sets out the basic functions of the Board but
the change does not require the Committee to reconsider its judgement.)
39. Subsection (7) makes similar provision for
Clause 51 (draft clause 40)
40. The clause is concerned with adjudication
by case tribunals. Subsection (2) allows the Secretary of State
by regulations to "make such provision as appears to him
to be necessary or expedient" with respect to such adjudications.
Subsection (4) gives example of the kind of provision which might
be made (see, for example, paragraphs (a) witnesses and oaths,
(c) procedure and (d) costs). Negative procedure is applied. (Subsection
(4)(c)(ii) is new but does not require the Committee to reconsider
41. Subsections (3) and (4) make similar provision
42. This clause allows the Secretary of State
to make regulations about the disclosure and registration of the
interests of members of local authorities. Negative procedure
Clause 54 (draft clause 42)
43. Subsection (1) allows the Secretary of State
by order to issue a code of conduct for local government employees
in England. The order is made subject to negative procedure.
44. Subsection (2) makes similar provision for
45. There are consultation requirements in subsections
(3) and (4).
46. Clause 57 provides three options for local
elections (a) all councillors retire together and elections are
held every four years, (b) one half retire in each election year
and elections are held every other year (c) one third retire in
each election year, elections being held in three years out of
47. Clause 58 allows the Secretary of State to
specify by order which option is to apply to a specified council
or to councils within a special description. Subsections (2) to
(7) make supplementary provision. Negative procedure is applied,
which the Committee considers appropriate.
48. Subsection (1) allows the Secretary of State
by order to change the years in which the ordinary elections of
councillors of a specified local authority are to be held. Such
an order does not change the electoral option that applies in
that area. Negative procedure applies, which the Committee considers
appropriate. An authority may be specified by name or as falling
within a class or description.
49. If the Secretary of State makes an order
under clause 58 or 59 there will be transitional provisions which
have to be made. These could be included in that order by virtue
of clause 69(2) but clause 60 confers an independent power, subject
to negative procedure, to make such provisions. The memorandum
explains the need for belt and braces saying, in effect, that
the need for action may not be discovered until the primary order
has been made and that at that point it is doubtful if clause
58 or 59 could be invoked to make a further order.
50. This clause provides for grants to local
authorities for welfare services. Subsection (8) refers to guidance
and subsection (9) to direction given by the Secretary of State
or the Welsh Assembly. There is nothing here that the Committee
wishes to draw to the attention of the House.
51. This clause allows regulations to make provision
for allowances and pensions for local authority members. Negative
procedure applies, which the Committee considers appropriate.
52. The Memorandum states that amendments to
this clause will be tabled. The aim is to place on the face of
the bill much which is at present left to regulations leaving
the scope of those regulations "significantly narrower."
Clearly this is to be welcomed. The Memorandum promises "a
supplementary memorandum" when the amendments are tabled.
53. The clause deals with social services functions
of local authorities. Subsection (3) inserts a new section 6(6A)
in the Local Authority Social Services Act 1970 and paragraph
(b) of that allows the Secretary of State to designate by order
additional functions which are to be regarded as social services
functions for the purpose of that Act. Negative procedure is attracted
by an amendment in Schedule 4. This clause is not mentioned in
54. This clause deals with orders and regulations
under the bill. Subsection (2) allows any order or regulation
under the bill to make incidental, consequential, transitional
or supplementary provision; to modify enactments; and to make
different provision for different circumstances. Subsection (3)
expands the power to modify enactments, in particular paragraph
(c) allows the amendment or repeal of any enactment. The Memorandum
describes the effect of this clause but makes no attempt to explain
why it is needed. The Committee wishes to draw the House's
attention to the width of this power the only restriction on it
being that any amendment or repeal must be no more than necessary
to give full effect to the order or regulations to which it is
attached. The House may wish to consider whether, if the power
is used to amend or repeal enactments, the order or regulations
should be subject to affirmative procedure.
Proposed New Powers
55. The Memorandum states that it is proposed
to table amendments adding four new powers to the bill - two in
Part II and two in Part III. The relevant paragraphs are 158 to
163 and 204 to 207. The Committee considers it premature to discuss
the proposals at this stage.
56. The Committee invites the House to consider
whether concern about the width of the power in clause 3(3) will
be met by the promised Government amendment to apply affirmative
procedure or whether the purpose of maintaining a proper balance
between local and wider interests should be written into the bill.
We also draw attention to the power in clause 10(5) to create
a new form of local authority executive and invite the House to
consider whether the bill should require local authorities to
be consulted before any regulations are made under the power.
The House may also wish to consider whether it is appropriate
that changes to the Statute Book made under clause 69 should be
subject to negative procedure as the bill provides. There is nothing
else in the bill which the Committee wishes to draw to the attention
of the House.
57. The Government propose to move many amendments
affecting powers in the bill and some adding four new powers to
it. The Committee must reserve its position on these amendments
until it has seen them. The Government's intention in this regard
emphasises once again the importance of tabling amendments in
time for the Committee to comment on them before the House has
to consider them.