Seventh Report
Instruments drawn to the special attention
of the House
The Committee has considered the following instruments
and has determined that the special attention of the House should
be drawn to them on the grounds specified.
A. Draft Cornwall (Structural Change) Order
2008
Draft County Durham (Structural Change) Order
2008
Draft Northumberland (Structural Change)
Order 2008
Draft Shropshire (Structural Change) Order
2008
Draft Wiltshire (Structural Change) Order
2008
Summary: These Orders propose that unitary councils
should be set up in the five local government areas named. Given
a background of uncertain public support, a proposal to cancel
elections in certain areas, and specification of the political
make-up of the Implementation Executives, these Orders have a
political importance which the House will wish to consider carefully.
These Orders are drawn to the special attention
of the House on the ground that they are politically important
and give rise to issues of public policy likely to be of interest
to the House.
1. The Department for Communities and Local Government
(DCLG) have laid these Orders under sections 7, 11, 12 and 13
of the Local Government and Public Involvement in Health Act 2007
("the 2007 Act"). An Explanatory Memorandum (EM), Impact
Assessment (IA) and summary of responses to a consultation exercise
in March 2007[1] have also
been provided.
BACKGROUND: WHITE PAPER, INVITATION TO COUNCILS,
2007 ACT
2. The process leading up to these Orders started
with the publication in October 2006 of a White Paper entitled
"Strong and Prosperous Communities".[2]
Alongside the White Paper, the Government issued an "Invitation
to Councils in England" ("the Invitation"), inviting
councils to submit proposals for unitary structures.
3. The Invitation set out five criteria which
proposals had to meet if new unitary structures were to be implemented.
The change to future unitary structures had to be:
- affordable; and
- supported by a broad cross-section of stakeholders.
Future structures had to provide:
- strong, effective and accountable strategic leadership;
- genuine opportunities for neighbourhood flexibility
and empowerment; and
- value for money and equity on public services.
4. 26 proposals were received by the end of January
2007. In March, after a process of assessment, the Government
made known its view that, if implemented, 16 of the 26 proposals
were likely to meet the criteria specified. It carried out consultation
on these 16 proposals and, after a further assessment process,
announced on 25 July 2007[3]
that it was minded to implement nine unitary proposals (including
the proposals in these Orders).
5. Finally, on 5 December 2007,[4]
the Government announced that the Secretary of State had decided
to confirm her decisions of 25 July.
6. In parallel with the process described above,
the Local Government and Public Involvement in Health Bill was
introduced into Parliament in December 2006, and received Royal
Assent in October 2007. Part 1 of the 2007 Act makes provision
for the implementation of local government structural and boundary
change. These Orders represent the first use of the relevant powers
in the 2007 Act, and propose that structural change be implemented
in each affected area on 1 April 2009.
THE ORDERS
7. Annex A to the EM provides a summary of the
changes proposed:
| Area
| Current structure
| New unitary councils
| Councils being abolished
|
| Cornwall | 1 county council
6 district councils
| Cornwall CC | 6 district councils
|
| County Durham | 1 county council
7 district councils
| County Durham CC | 7 district councils
|
| Northumberland | 1 county council
6 district councils
| Northumberland CC |
6 district councils |
| Shropshire | 1 county council
5 district councils
| Shropshire CC | 5 district councils
|
| Wiltshire | 1 county council
4 district councils
| Wiltshire CC | 4 district councils
|
8. It will be seen that, in all cases, the district councils
are to be abolished, and the new unitary council will be a County
Council. The EM recognises that this approach has had a mixed
reception: "Some district councils expressed concern that
unless all the councils (districts and county) were technically
abolished and a new unitary council established, then the county
council could be seen to 'take over' the districts. Government
has been clear that the current restructuring of local government
is about creating new authorities in any commonly understood meaning
of the word. However, since the county councils in these five
areas cover exactly the same local government areas as the new
unitary authorities, the Government decided in September that
implementation arrangements would be more straightforward if the
new authority is treated, in legal terms, as a continuation of
the existing county council."
PUBLIC OPINION
9. Further evidence of reservations about the proposals felt
by district councils and residents in their areas is contained
in Annex B to the EM, which provides comments on each of the proposals
against the five criteria specified in the Invitation. As regards
"support", in the case of the Cornwall, County Durham,
Northumberland and Shropshire proposals, the EM acknowledges that
the district councils concerned pointed to polling evidence which
showed extensive local opposition to the proposals for new unitary
councils. However, the EM comments that "the climate in which
the polls took place suggests that the results needed to be viewed
with caution".
10. In the case of the Wiltshire proposal, Annex
B says that there was "support from a range of stakeholders,
both public and private sector, as well as some support from the
general public". By contrast, the fuller account of comments
given in the summary of responses to the March 2007 consultation
exercise states (at paragraph 108) that "there was a substantial
response from the members of the public, the vast majority of
it in campaign form, with over a third supporting the proposal
and the remainder opposing. Many individuals wrote to express
support for the proposals. Overall the majority expressed concerns
about the proposal, and in particular expressed doubts that the
proposal met the affordability criterion."
ELECTIONS
11. The EM explains that the Orders for County
Durham and Northumberland provide that county council elections
are to be held on the ordinary day of election of councillors
in 2008 (the first Thursday in May); and that, in the other counties,
elections to the new unitary council are proposed for 2009. However,
it also explains that in Cornwall (but only in the district of
Penwith) and in Shropshire (but only in the district of Shrewsbury
and Atcham), one third of the district council membership would
ordinarily come up for election in May 2008; and that the Orders
provide for the cancellation of those district council elections,
and of certain parish council elections that would otherwise be
held on the ordinary day of election of councillors in 2008 and,
in some cases, in later years.
12. The Department state that, although there
is no express power in the 2007 Act to cancel any local government
election, cancellation has been a feature of earlier local government
structural change orders made under powers not materially different
from those under the 2007 Act. The Department have confirmed that
the arrangements for cancelling elections in the case of Penwith
(Cornwall) and Shrewsbury and Atcham (Shropshire) have been agreed
by the affected local authorities on the basis that it is not
sensible to hold elections in local authorities that will cease
to exist. In the EM, they make the point that "on practical
grounds, it would be very wasteful of public resources to hold
in 2008 elections to district councils that are to be wound up
and dissolved some 10 months later".
13. The holding of any elections necessarily
involves the commitment of public resources; and, while those
in government responsible for implementing these changes may well
wish to make it easier to progress towards them, such considerations
need to be weighed against the implications of denying the local
electorate the opportunity to express their preferences which
would have been possible if the elections had gone ahead.
IMPLEMENTATION EXECUTIVE
14. The Orders provide in each case for the creation
of an Implementation Executive (IE) with members drawn from all
the existing councils in the area, to oversee the transitional
process until the first elections are held; and they specify,
with varying formulae, the numbers of members on the IE from each
of the main political parties.
15. In the EM (paragraph 4.11), the Department
acknowledge that "specifying the political composition of
the Implementation Executive is unprecedented. However, the provisions
seek to give effect to arrangements that reflect discussions and
agreements with affected authorities. They were concerned that
an issue that is, to them, of importance, should be exposed on
the face of the draft Orders rather than confined to the more
informal agreements that they have made."
16. It is precisely because such provisions are
unprecedented that we believe that the House will be closely interested
in them. It may well be that this approach reflects agreement
with those concerned; but it represents a new, and unusually interventionist,
use of secondary legislation which, if replicated in circumstances
where no political consensus existed, would be highly controversial.
CONCLUSION
17. We have no doubt that the Orders give rise
to issues of public policy likely to be of interest to the House.
However, given the background of uncertain public support, the
proposal to cancel elections in certain areas, and the specification
of the political make-up of the Implementation Executives, we
think that they also have a political importance which the House
will wish to consider carefully.
B. Infant Formula and Follow-on Formula (England)
Regulations 2007 (SI 2007/3521)
Summary: These Regulations implement a European
Union Directive which tightens requirements for the composition,
labelling and advertising of infant milk formula and follow-on
formula. A. coalition of professional and lay organisations, including
four Royal Colleges representing GPs, midwives and other health
workers directly concerned with the nutrition of infants, have
sent us written evidence, concerned that the Regulations do not
go far enough. In particular they are concerned that the advertising
of such formulae should be banned and that labelling should include
a minimum temperature for the water used for mixing. The Food
Standards Agency has undertaken to monitor the impact of the new
rules and set up an independent review of them after 12 months.
These Regulations are drawn to the special attention
of the House on the ground that they give rise to issues of public
policy likely to be of interest to the House
18. These Regulations have been laid by the Department
of Health on behalf of the Food Standards Agency (FSA) under section
2(2) of the European Communities Act and sections of the Food
Safety Act 1990, together with an Explanatory Memorandum (EM),
Regulatory Impact Assessment (RIA) and Transposition Note (TN).
19. The Regulations consolidate and update existing
requirements to implement the requirements of Commission Directive
2006/141/EC on the composition, labelling and advertising of infant
milk formula and follow-on formula.
20. The Committee has been contacted by Baby
Milk Action, secretariat for the Baby Feeding Law Group (BFLG),
a coalition of professional and lay organisations, including four
Royal Colleges representing GPs, midwives and other health workers
directly concerned with infant and young child nutrition and mother
support groups. The BFLG is concerned that the Regulations do
not go far enough in restricting the commercial promotion of formulas
for infants (breast-milk substitutes), and that this will undermine
the efforts of health workers to ensure that parents are provided
with objective, independent information on the best feeding regime
for infants. They also point out that the Government's own Scientific
Advisory Committee on Nutrition and LACORS (Local Authority Coordinators
of Regulatory Services) called for a stronger and more straightforward
measure.
21. The BFLG maintain that the Regulations do
not fulfil the aim of the Directive, stated in its preamble as
to: "provide better protection for the health of Infants"
to ensure that information is not "counter to the promotion
of breast-feeding" and, in Article 1, to provide for
Member States "to give effect to principles and aims of
the International Code of Marketing of Breast-milk Substitutes
dealing with marketing, information and responsibilities of health
authorities." The International Code forbids the commercial
promotion of all breast milk substitutes including follow-on formulas.
22. Although Regulation 21(3) provides that "information
in advertisements for infant formula shall not imply or create
a belief that bottle-feeding is equivalent or superior to breast
feeding", there is concern that the essential purpose
of advertising is to promote and persuade rather than to inform.
The BFLG feels that its concerns about the impact of even limited
advertising is validated by the rapid increase in formula milk
sales. "It is of huge concern that the EU Directive seems
to have had the entirely opposite impact on health than that intended
by MEPs and in the last 10 years since its implementation, the
UK formula market has nearly trebled - from £119m to £329m.
23. In their response to the consultation exercise,
the BFLG and LACORS also called for the Regulations to include
a requirement that warnings and instructions on labels should
be brought into line with the Food Standard Agency guidance on
reconstituting formula. Powdered formula is not sterile, and bacterial
contamination has led to deaths and brain damage in a small number
of cases in other countries, but simple steps (such as ensuring
the water used for mixing is at a minimum of 70oC)
can reduce the risks considerably. The BFLG points out that a
voluntary agreement with companies to do this has not worked:
all have introduced new labels since the FSA issued its guidance
in November 2005 without including the necessary information.
24. The BFLG also says it is concerned about
the wider, international impact of the UK failing to prohibit
such advertising and promotion: "The UK has been promising
to bring its policies in line with the International Code of Marketing
of Breast Milk Substitutes ever since its inception in 1981...
MEPs first called for the International Code to be implemented
as a Directive for Europe in 1981 with the express intent of protecting
breastfeeding and infant health. The MEPs three times rejected
proposals put forward by the Commission and called for stronger
measures before 1989 when the Parnuts Framework Directive was
adopted. Legislation in this area was then passed to the Commission
on the understanding that they would deal with 'technical matters'
and that amendments likely to have an impact on public health
would take account of the views of Member States and the Scientific
Committee for Food (SCF) SCF advice was followed in relation to
essential composition, but ignored in other areas. The UK and
several other countries called for the specific permission to
extend the controls on marketing of follow-on milks on the basis
that this is required by the Code, but the Commission ignored
the UK evidence and refused to alter the text. …We fear that
the current proposals are sending entirely the wrong signals,
and the UK stance could undermine countries, such as Italy, that
have already prohibited such advertising and could do a lot of
harm not only to UK and EU babies but also globally where this
is even more a matter of life and death."
25. In the RIA, the FSA list the considerable
number of representative bodies that supported the prohibition
of the advertising of follow-on formula in line with the WHO Code.
The FSA state that the Directive represents the EU view on how
the recommendations of the WHO Code should be incorporated into
European Law and they cannot go beyond that. However, they also
state that the Agency will monitor the impact of the new rules,
and after 12 months of application will set up an independently
chaired review, with stakeholder participation, to check that
they are working effectively (RIA paras 5.6-8).
CONCLUSION
26. Given the range of views both about infant
milk policy and the implementation of the Directive, we draw these
Regulations to the attention of the House as a matter of public
policy likely to be of interest to the House.
1 See: http://www.communities.gov.uk/documents/localgovernment/pdf/550256
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2
See: http://www.communities.gov.uk/documents/localgovernment/pdf/152456
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3
HC Hansard, 25 July 2007, column 68WS Back
4
HC Hansard, 5 December 2007, column 65WS Back
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