1. This private member's bill has Government support and is accompanied by Explanatory Notes and a memorandum, printed at Appendix 1, prepared for the Committee by the Department for Communities and Local Government explaining the delegated powers conferred in clause 1. The main purpose of the bill is to allow the freemen of a town or city to amend the rules (whether set out in royal charter or legislation, or enshrined in local custom) which govern persons' admission to the body of freemen.
2. Clause 1 inserts new sections 248A - 248C into the Local Government Act 1972. New section 248A provides for two methods of amending rules about admission as freemen, and new section 248B provides for consequential amendments. A royal charter may be amended by Order in Council (section 248A(1)), but all other forms of rules are to be susceptible to amendment by a resolution of the freemen under section 248C. Local customary rules may be amended by resolution on any ground (section 248A(6)), but amendments to rules contained in a charter or an enactment may be made only so that a woman has the right to be admitted to the freedom of a city or town (section 248A(3), (4) & (9)(a)). Subsection (10) envisages that even a public general Act might be amended for this purpose.
3. We are unaware of any other instance where an Act, particularly a public general Act, might be amended by a resolution passed by an unincorporated body. In paragraph 16 of its memorandum, the department refers to section 74 of the Local Government Act 1972 as a precedent for amending legislation by resolution. That section enables the council for a local government area to amend the area's name by resolution; and in certain cases any "charter, other grant or incorporation order" (but not an Act) is to have effect as if the new name were substituted for the old. Section 74 includes requirements as to the publicity to be given to such a resolution, whereas in the present case the only requirement is to lodge the freemen's resolution with the local district council (section 248C(8)). We have not found this precedent persuasive.
4. Notwithstanding the narrow scope for amending enactments afforded by new sections 248A and 248B and the area of law in question, this delegation raises an issue of principle about the appropriate mechanism for the exercise of what is undoubtedly a legislative power. While acknowledging the department's reasons (paragraphs 14 and 15 of the memorandum) for seeking to keep the amendment process as simple as possible, we consider that a resolution of freemen alone is an inappropriate vehicle for amending an Act. We recommend that the bill be amended i) to provide that any resolution which would require the amendment of an Act should be notified to the Secretary of State; ii) to include a power requiring the Secretary of State to effect the necessary amendments by order; and iii) that the order should be subject to negative procedure if it amends a public general Act.
