Local Government And Public Involvement In Health Bill - continued          House of Lords

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Clause 13 - Implementation orders: further provision

63.     This clause allows an order under clause 7 or 10 to also make any other incidental, consequential, transitional or supplementary provision. Examples of these are set out in clause 15.

64.     Subsection (3) provides that such incidental, consequential, transitional or supplementary provision included in an order may relate either to provisions in that order or to provisions of a previous order under clause 7 or 10. This means for example that the Secretary of State may establish a new authority and appoint councillors to it to make decisions during the shadow period of that authority and in a separate order make provision for the first election of councillors to that authority.

65.     Subsection (4) establishes that under clause 11(4)(g), (the exercise of the Secretary of State's power to alter police areas) he must not divide a single tier county, or district, or London Borough between two or more police areas.

Clause 14 - Regulations for supplementing orders

66.     This clause allows the Secretary of State by regulation to make any other incidental, consequential, transitional or supplementary provision in consequence of an order under clause 7 or 10 or to give full effect to such an order. Clause 15 gives examples of the kind of provision which can be made.

Clause 15 - Incidental etc provision in orders or regulations

67.     This clause gives examples of the incidental, consequential, transitional or supplementary provision which may be made including provision for the transfer of staff and with respect to charter trustees.

68.     Subsection (2) enables that an order under clause 7 or 10 or regulations under clause 14 may for incidental, consequential, transitional or supplementary purposes modify, exclude, apply, repeal or revoke an enactment.

69.     Subsection (3) defines an "enactment" and makes it clear that it includes a charter, and an enactment in the present Bill or in an Act passed after the Bill receives Royal Assent, and any instrument made under such an Act.

Clause 16 - Agreements about incidental matters

70.     This clause provides for the agreements that a public body affected by an order made under clause 7 or 10 can make/enter into. These agreements may relate to: property, income, rights, liabilities and expenses and any financial relations between the parties to the agreement.

71.     Subsections (3) and (4) set out that should the parties not reach agreement as to any disputed matter, it shall be referred to an arbitrator for him to decide.

72.     Subsection (6) provides that the definition of a public body in this clause also includes a parish council.

Clause 17 - Residuary bodies

73.     This clause enables the Secretary of State by order to establish one or more corporate bodies to take over any property, rights, liabilities or functions of local authorities which cease to exist as a result of clause 7 or 10.

74.     Subsection (2) outlines other provisions that the Secretary of State may make under subsection (1).

75.     Subsection (3) allows the Secretary of State to transfer to any body or bodies the property, rights, liabilities and any related functions of the residuary bodies and to give effect to any scheme submitted to him for the dissolution of the residuary body.

76.     Subsection (4) establishes that the order may include incidental, consequential, transitional or supplementary provision and subsection (5) allows an order dealing with residuary bodies to contain provision which applies, modifies or amends enactments.

Clause 18 - Staff Commissions

77.     This clause enables the Secretary of State to establish one or more staff commissions for the purpose of considering staffing arrangements, transfers and problems that may arise as a result of orders under this Chapter. Staff commissions may also be established to advise the Secretary of State on the steps necessary to safeguard the interests of staff affected by such an order.

78.     Subsection (3) allows the Secretary of State to direct the staff commission(s) with respect to their procedure.

79.     Subsection (4) enables the Secretary of State to give directions to a relevant authority with respect to the provision of any information requested by the staff commission, the implementation of any advice given by the staff commission and the payment by such an authority of any expenses incurred by a staff commission in undertaking requests of the authority.

80.     Subsection (6) allows the Secretary of State, by order, to wind up any staff commission established under this clause.

81.     Subsection (8) defines "relevant authority" as a local authority or a residuary body established under clause 17.

Clause 19 - Certain county councils to be billing authorities

82.     This clause establishes that where the functions of a district council transfer to a county council for that area as a result of an order under this Chapter, the county council shall be the billing authority for the purposes of Part 1 of the Local Government Finance Act 1992 (c.14) for that area; it shall not be a major precepting authority.

Supplementary

Clause 20 - Correction of orders

83.     This clause allows the Secretary of State to rectify a mistake in an order under Chapter 1, ie a restructuring or boundary change order or an order containing incidental or consequential provision, where he is satisfied that there is a mistake in the order which can not be rectified by a subsequent order by virtue of section 14 of the Interpretation Act 1978. This relates to orders which may not otherwise be capable of amendment as their provisions may be spent soon after commencement.

84.     Subsection (2) sets out that a "mistake" includes a provision contained in or omitted from the order in reliance on inaccurate or incomplete information supplied by any public body.

85.     Subsection (3) provides that a public body as referred to in subsection (2) includes a parish council.

Clause 21 - Pre-commencement invitations etc

86.     This clause introduces the concept of a "pre-commencement invitation" and provides that it is immaterial if the Secretary of State issues such an invitation or guidance prior to commencement of this Chapter. Further, that it is immaterial if he consults, prior to commencement, on any proposal received in response to a pre-commencement invitation. This means that any invitations and proposals that have been made and any consultation that has been carried out, at any time before commencement of Chapter 1, (whether before or after Royal Assent), are effective for the purposes of the Chapter. In particular, this means that the Secretary of State will be able to implement, after commencement, proposals received at any time before commencement.

Clause 22 - Consequential Amendments

87.     This clause provides that Schedule 1 has effect.

Clause 23 - Definitions for the purposes of Chapter 1

88.     This clause defines various terms for the purposes of Chapter 1. In particular:

  • a "single tier" area is firstly where there is a single tier of local government for an area, ie where there is a county council and no district councils for that area or where there is a district council and no county council for that area. Secondly, an area is "single tier" if it is a London Borough;

  • a "two-tier" area is either a district area where there is a district council and a county council undertaking functions which apply to the area or it is a county area where there is a county council and district areas all of which have district councils;

  • a proposal is only made "in response to" an invitation or direction if it is a type of proposal which is permitted, is in response to an invitation or direction, is in accordance with that invitation or direction and includes a local government area of which at least part is currently two-tier;

  • a "body affected by an order" includes a body whose area or functions are affected by an order; which will cease to exist following an order; or which is established pursuant by or in consequence of an order.

CHAPTER 2: CONTROL OF DISPOSALS ETC

Clause 24 - Authorities dissolved by orders: control of disposals, contracts and reserves

89.     This clause provides that the Secretary of State may make a direction requiring relevant authorities to obtain consent, with effect from a date specified by the Secretary of State, from the person(s) specified in the direction before they can:

  • dispose of land if the consideration for it exceeds £100,000;

  • enter into a capital contract where the authority concerned would be required to pay consideration of more that £1,000,000 or where the contract includes a term allowing the consideration to be varied;

  • enter into any non-capital contract where the consideration exceeds £100,000 and the contract extends beyond a date specified in the direction, or under the terms of the contract, the period of the contract may be extended beyond that date;

  • include an amount of reserves in the calculation of its budget requirement for council tax purposes.

90.     Subsection (2) defines a "relevant authority" as one which is to be dissolved by order made under clause 7 or 10 and which is specified or falls within a description of authority specified in the direction.

91.     Subsection (3) defines "capital contract" and "non-capital contract". A capital contract means a contract in relation to which the consideration payable by the authority would be capital expenditure for the purposes of Chapter 1 of Part 1 of the Local Government Act 2003.

92.     Subsection (4) provides that the person(s) whose consent is required as specified in the direction, may be the Secretary of State or such authority or other person as he thinks appropriate. He may identify a different person for different matters that require consent or in relation to different authorities or types of authorities.

Clause 25 - Directions: further provisions about reserves

93.     This clause provides that the Secretary of State, in making a direction under clause 24, may specify that in relation to reserves of a specified description, or reserves below a certain amount, relevant authorities should not be subject to the requirement to seek consent before applying such reserves to reduce their budget requirement for council tax purposes.

Clause 26 - Directions: supplementary

94.     Subsection (2) of clause 26 enables consent to be given for a particular disposal or contract, or for disposals or contracts of any description. Consent may be given either unconditionally or subject to conditions.

95.     Subsection (3) provides that certain enactments will have effect subject to direction, that is, that the direction will take precedence. The enactments are: (a) section 123(1) of the Local Government Act 1972 which provides that a local authority must obtain the Secretary of State's consent where it proposes to dispose of land at less than best consideration and (b) any other enactment relating to the disposal of land by a local authority.

96.     Subsection (4) provides that any consent required by this direction is additional to any consent required by other legislation in relation to the disposal of land by local authorities.

97.     Subsections (5) and (6) set out that where the consideration under the contract is not in money, the value of the consideration shall apply for the purposes of the financial limits in clause 24. Where there is a question over the value of such consideration and the relevant authority and the person who is required to give consent can not reach agreement as to the value, it will be determined by the Secretary of State.

98.     Subsection (7) provides that a direction may be varied or revoked by a subsequent direction.

Clause 27 - Consideration to be taken into account for the purposes of direction

99.     This clause provides that for the purpose of deciding whether the financial limits in clause 24 have been exceeded, the consideration with respect to certain disposals and contracts shall be taken into account.

100.     The consideration in relation to other disposals of land made after the 31st December 2006 (ie before the direction was issued) shall be taken into account.

101.     The consideration that shall be taken into account is that in respect of contracts entered into by the authority after the 31st December 2006 (ie before the direction was issued) which are either with the same contractor as the contract in question, or which relate to the same or a similar description of subject matter as the contract in question.

Clause 28 - Contraventions of direction

102.     Subsections (1) and (2) provide that any disposal made in the absence of consent in contravention of clause 24 will be void. Any contract similarly entered into without consent, will not be enforceable against the successor authority.

103.     Subsection (3) defines a "successor" authority as an authority which is established by order under clause 7 or 10 and whose area covers whole or part of the area of an old authority.

104.     Subsection (4) provides that a contract entered into in contravention of a direction under clause 24 will not be a certified contract for the purpose of the Local Government (Contracts) Act 1997. This means that the contractor will not be afforded the protection provided by that Act, that is, the contract will be open to a challenge in private law and that there will not be terms which survive any setting aside of the main contract.

105.     Subsections (5) and (6) provide that if an authority applies reserves to reduce its budget requirement for council tax purposes without consent, the authority will be treated as though it has not made its council tax calculations as required by the Local Government Finance Act 1992 and accordingly will not be able to collect council tax.

Clause 29 - Power to amend

106.     This clause allows the Secretary of State to amend the amounts identified in clause 24(1) and to amend the date specified in clause 27(1) and (3) so that he will be able to make appropriate directions in the future, after the first wave of restructuring.

PART 2: ELECTIONS

Introduction

107.     Part 2 of the Bill enables district councils in England in some circumstances to change their scheme for elections where they wish to do so.

108.     It requires the Electoral Commission and Boundary Committee in exercising their functions under section 13 of the Local Government Act 1992 to consider whether the number of councillors in a ward of a council which is subject to a scheme for partial-council elections is appropriate. It allows the Boundary Committee to obtain information from local authorities in connection with the discharge of its functions.

109.     It also allows a principal council to make a request to the Electoral Commission in connection with the provision of single-member electoral areas. Part allows local authorities to change the names of their electoral areas. It removes the requirement for the number of councillors in a metropolitan district ward to be divisible by 3. Finally, the Secretary of State is given power to make an order that ensures local government elections take place on the same day as European parliamentary general elections in those years where the two elections are scheduled to take place.

CHAPTER 1: POWER OF DISTRICT COUNCILS IN ENGLAND TO CHANGE ELECTORAL SCHEME

Introductory

Clause 31 - Schemes for elections

110.     Clause 31 sets out the schemes for elections that a district council may resolve to be subject.

Power of district councils to change to whole-council elections

Clause 32 - Resolution for whole-council elections

111.     This clause enables a council that is subject to a scheme for elections by halves or elections by thirds to resolve to be subject instead to a scheme for whole-council elections.

Clause 33 - Resolution for whole-council elections: requirements

112.     Clause 33 enables a district council to change to a scheme of whole-council elections by resolution. The resolution can only be passed during a specified period. This period differs according to whether the council is a metropolitan district council or a non-metropolitan one. The resolution must be passed by a majority of at least two-thirds of councillors voting at a specially convened meeting. Clause 33(6) enables the Secretary of State to extend the period during which the decision must be taken.

Clause 34 - Scheme for whole-council elections

113.     This clause is concerned with how a scheme for whole-council elections will operate. It requires ordinary elections to be held in particular years. For metropolitan district councils, these are 2010 and every four years after. For non-metropolitan district councils, the years are 2011 and every four years after. This follows the pattern that has been established for non-metropolitan district councils that are already subject to a scheme for whole-council elections.

Clauses 35 and 36 - Publicity and Notice to the Electoral Commission

114.     As soon as possible after the resolution to move to a scheme for whole-council elections has been passed, the council must publicise the fact that it has become subject to the new scheme and produce an explanatory document. It must also notify the Electoral Commission of the resolution.

Power of district councils to revert to partial-council elections

Clause 37 - Resolution for elections by halves

115.     This clause enables a council that is operating whole-council elections but has, at some point since 1st April 1974, previously operated elections by halves to resolve to return to elections by halves.

Clause 38 - Resolutions for elections by halves: requirements

116.     Clause 38 requires a resolution for elections by halves to be passed during a specified period. The resolution must be passed by a majority of at least two-thirds of councillors voting at a specially convened meeting. Clause 38(6) enables the Secretary of State to extend the period during which the decision must be taken.

Clause 39 - Resolution for elections by thirds

117.     This clause enables a council that is operating whole-council elections but has, at some point since 1st April 1974, previously operated elections by thirds to be able to resolve to return to elections by thirds.

Clause 40 - Resolutions for elections by thirds: requirements

118.     Clause 40 requires a resolution for elections by thirds to be passed during a specified period. The resolution must be passed by a majority of at least two-thirds of councillors voting at a specially convened meeting. Clause 40(6) enables the Secretary of State to extend the period during which the decision must be taken.

Clauses 41 and 42 - Publicity for resolution and Notice to the Electoral Commission

119.     These clauses are similar to the provisions made as to publicity for a resolution and notice to the Electoral Commission in clauses 35 and 36 but are concerned with cases in which a council has resolved to become subject to a scheme for partial-council elections.

Clause 43 - Electoral Commission to consider whether electoral review is necessary

120.     Clause 43 places a duty on the Electoral Commission to consider whether or not an electoral review is necessary where a council has resolved to become subject to a scheme for partial-council elections. If they decide that a review is necessary they can direct the Boundary Committee to conduct a review using their existing powers under section 13(3) of the Local Government Act 1992.

Clause 44 - Electoral Commission to make order for new electoral scheme

121.     This clause requires the Electoral Commission to make an order setting out details of what a council's resolution to move to elections by halves or by thirds will mean in practice. Where the council is moving to elections by halves the order is called an "order for elections by halves". Where the council is moving to elections by thirds the order is called an "order for elections by thirds". Subsection (2) ensures that, if the council's resolution has triggered an electoral review by the Boundary Committee, the Electoral Commission's order does not pre-empt the Committee's recommendations.

Clause 45 - Order for elections by halves: years in which elections are to be held

122.     Clause 45 requires an order for elections by halves to secure that elections are held in the years determined in accordance with the clause. The first ordinary elections under the new scheme will be whole-council elections (see clause 46(2)) which must be held in a relevant year; that year being 2011 and every fourth year afterwards. Subsequent ordinary elections must be held in a year for elections by halves, that year being 2012 and every second year afterwards. This follows the pattern that has been established for non-metropolitan district councils that are already subject to a scheme for elections by halves.

Clause 46 - Order for elections by halves: councillors to be elected at ordinary elections

123.     This clause makes further provision about the detail that must be included in an order for elections by halves. In particular, it sets out what the order must say about when each of the councillors is to be elected, and when he or she is to retire. It provides (in subsection (2)) that the first ordinary elections under the new regime must be whole-council elections.

Clause 47 - Order for elections by thirds: years in which elections are to be held

124.     Clause 47 requires an order for elections by thirds to secure that elections are held in the years specified in that clause. The first ordinary elections under the new scheme will be whole-council elections which must be held in a relevant year; that year being, in relation to a metropolitan district council, 2014 and every fourth year afterwards and, in relation to a non-metropolitan district council, 2011 and every fourth year afterwards. Subsequent ordinary elections will be held in each subsequent year, unless it is a fallow year; a fallow year being 2013 and every fourth year afterwards. This follows the pattern that has been established for metropolitan district councils and non-metropolitan district councils respectively that are already subject to a scheme for elections by thirds.

Clause 48 - Order for elections by thirds: councillors to be elected at ordinary elections

125.     This clause makes further provision about the detail that must be included in an order for elections by thirds. In particular, it sets out what the order must say about when each of the councillors is to be elected, and when he or she is to retire. It provides (in subsection (2)) that the first ordinary elections under the new regime must be whole-council elections.

Clause 49 - Order for elections by halves or elections by thirds: transitional provision

126.     Clause 49 allows the Electoral Commission to include in an order for partial-council elections provision about the transition to the council's new scheme, including provision for some councillors to retire at times different from those otherwise applying and for identifying which of them are so to retire.

 
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Prepared: 24 May 2007