Two Bills and one Draft Order - Delegated Powers and Regulatory Reform Committee Contents

Fifteenth Report

Northern Ireland (Miscellaneous) Provisions Bill

1.  This Bill makes a variety of provision in relation to Northern Ireland, summarised in paragraph 4 of the Explanatory Notes, much of it concerned with the Northern Ireland Assembly and elections to it, and with political donations and loans. A memorandum has been prepared by the Northern Ireland Office to explain the delegated powers conferred or affected by the Bill.[1] There is only one provision of the Bill which we wish to draw to the attention of the House.

Clause 19 - Performance of Chief Electoral Officer

2.  Clause 19(1) enables the Secretary of State to provide by affirmative order for the objectives or performance standards to be met by the Chief Electoral Officer for Northern Ireland. This will enable similar provision to be made to that already in force for Great Britain (where the Electoral Commission may set and publish performance standards for registration officers). This clause is included in the Bill following recommendations from the Electoral Commission, and we do not regard this delegation of legislative power as inappropriate in principle (particularly in view of the affirmative procedure that is to apply), save in one respect. Subsection (4) confers a Henry VIII power enabling provision under subsections (1) and (2) to be made by way of modification of other legislation, and would permit amendments, repeals and other modifications in other Acts whenever passed or made; and the effect of subsection (5)(a) is to amplify the power further so that even provisions of the Bill itself, or provisions it inserts elsewhere, could be modified by the order.

3.  We have on a number of occasions (most recently at paragraphs 14 and 15 of our 13th Report in the present Session) observed that, where a Bill confers a power to amend future Acts, we expect to find a compelling justification for the power in the Department's memorandum. But paragraph 26 of the memorandum for this Bill does not give the Department's reasons for seeking this Henry VIII power, and in particular does not explain why the modification of future Acts, and of the Bill itself, should be permitted or in what way such powers might be exercised. We draw this deficiency to the attention of the House, so that it may invite the Minister to explain the need for so extensive a power, failing which we recommend that clause 19(4) and (5) should be amended to confine the power to the modification of other Acts passed no later than the end of the Session in which this Bill is enacted.

Anti-social Behaviour, Crime and Policing Bill: Government Amendments

Clauses 55 to 57 - Public Space Protection Orders

(Amendments 34B, 34C, 35A, 36A, 44C, 44D, 45A, 46A, 49B, 49C, 49D and 51A)

4.  Clause 55 allows local authorities to make public spaces protection orders. We expressed the view in our 12th Report (HL Paper 72) that the wide-ranging and significant powers conferred on local authorities by clause 55 make it an inappropriate delegation of powers in the absence of safeguards, in particular any requirement to publicise the order before it is made. In response the Government have tabled amendments which would require a local authority to publish the text of a proposed order before it is made or varied, and to publish a proposal to extend an order before the extension takes effect.

5.  The amendments tabled by the Government at Committee stage do not require publication to take place in a specified way, or for there to be any set period between publication of the proposal and the taking of the relevant action. This contrasts with the regime which applies to the three order making powers which are being replaced by public space protection orders (designated public place orders, gating orders and dog control orders). In each of those cases the relevant statutory provisions require there to be a minimum of 28 days between publication and the making of the order, and the local authority is required when it publishes its proposals to invite representations as to whether or not the relevant order should be made. The approach in those cases is consistent with the objective of ensuring that those who may be affected are given sufficient notice of the proposal and adequate opportunity to make representations before it is implemented. This contrasts with the position under the Government amendments which in our view are not sufficient to ensure that those affected will have an adequate opportunity to make representations. Accordingly we do not consider that the Government amendments are sufficient to meet our concerns about the appropriateness of the delegation of powers by clauses 55 to 57.

Amendment 81A- Power to issue guidance in respect of certification of warrants in extradition cases

6.  Amendment 81A amends clause 138 of the Bill. Clause 138 inserts a new section 21A into the Extradition Act 2003 to ensure that, where a judge hears extradition proceedings initiated as a result of a European arrest warrant, the judge considers whether the extradition would be disproportionate. The new provisions inserted by Amendment 81A relate to an earlier stage of the process, the certification of a European arrest warrant by the National Crime Agency (NCA) under section 2 of the Extradition Act 2003. As proposed to be amended, section 2(7A) will prohibit the NCA from certifying a European arrest warrant if it is clear to the NCA that a judge proceeding under section 21A would order the person's discharge on the basis that extradition would be disproportionate. In deciding that question, the NCA must apply any general guidance issued by the Lord Chief Justice of England and Wales (with the concurrence of the Lord Justice General of Scotland and the Lord Chief Justice of Northern Ireland).

7.  The Home Office acknowledges in a supplementary memorandum that the power to issue guidance under section 2(7A) is a delegated power. The Home Office explains that the exercise of this power is not subject to any parliamentary scrutiny because the content of the guidance will be a matter for the judiciary and because the terms of section 21A(3) of the Extradition Act 2003 specify the matters which must be taken into account when deciding whether extradition would be disproportionate. We agree with the Home Office's view that the judicial nature of the function to which the guidance relates makes it appropriate for the exercise of the power not to be subject to parliamentary scrutiny. However, we draw this power to the attention of the House for two reasons. The first is the unusual nature of the provision to which it relates, namely requiring the NCA to exercise the functions of a judge under section 21A; the second is that it provides for the issuing of "guidance" which the NCA is obliged to apply, rather than merely have regard to.


Draft Legislative Reform (Payments by Parish Councils, Community Councils and Charter Trustees) Order 2013

8.  This draft Legislative Reform Order (LRO) was laid on 11 November 2013 by the Department for Communities and Local Government (DCLG), together with an Explanatory Document (ED). It is proposed to be made under section 1 of the Legislative and Regulatory Reform Act 2006 ("the 2006 Act") which allows a Minister to make provision by order for removing or reducing any burden resulting directly or indirectly from legislation.

9.  The purpose of the draft LRO is to remove the "two-signature rule" which requires parish councils (and community councils in Wales) to ensure that all their cheques and other orders for the payment of money must be signed by two members of the council;[2] and also to remove the similar requirement on two groups of charter trustees that cheques or orders for money payments by charter trustees must be signed by two trustees.[3]

10.   DCLG states that the case for removal of the "two-signature rule" turns on two specific burdens which it imposes, namely, that it inhibits the use of electronic means of payment, and that it involves an unreasonable and unproductive use of members' time in the larger bodies. The Department explains that, if the draft LRO is agreed, the affected bodies will be responsible for devising controls over their payments within a framework set by the continuing requirements of the Accounts and Audit Regulations in England and Wales,[4] new guidance on payments issued by the local council sector,[5] and the annual return made for the purposes of the external audit.

11.  As required by the 2006 Act, the Department has consulted on the proposal. DCLG states that there was an eight-week consultation exercise on the proposal between July and September 2012; and that the Minister "is satisfied that the consultation met the requirements of section 13 of the 2006 Act." 503 responses were received: 394 (78.3%) supported the removal of the two-signature rule from legislation, 86 (17.1%) were opposed, and 23 (4.6%) either did not answer or were not entirely for or against.

12.  In this regard, we draw attention to the recent inquiry which the Secondary Legislation Scrutiny Committee conducted into the Government's consultation principles and, in particular, to the Committee's report on the Government's review of those principles.[6] In that report, the Committee recommended that the minimum period for consultation should be six weeks, and that holiday periods should be avoided. Against that recommendation, we would comment that holding a consultation process of eight weeks spanning August, as in this case, is not good practice. However, we accept that the bodies concerned had had longer notice of the Government's intention to change the "two-signature rule", and we do not see the Government's handling of the main consultation process as a reason to object to the draft LRO.

13.  We are satisfied that the Order meets the tests set out in the 2006 Act and is not otherwise inappropriate for the Legislative Reform Order procedure.

14.   The Government have proposed the negative resolution procedure. We take the view that this procedure is acceptable for an Order under the 2006 Act only when the legislative changes proposed are modest. On balance, and given that the Order would not stop the present arrangements continuing if a parish or community council preferred in future to maintain the two-signature rule, we are content that the LRO should be subject to the negative resolution procedure.

1 regulatory-reform-committee/bills-considered/ Back

2   The rule is imposed under sections 150(5) and 246(12) of the Local Government Act 1972. Back

3   The requirement is imposed by regulation 15(2) of the Charter Trustees Regulations 1996 (SI 1996/263). Back

4   Namely, the Accounts and Audit (England) Regulations 2011 (SI 2011/817) and the Accounts and Audit (Wales) Regulations 2005 (SI 2005/368). Back

5   In England, "Governance and Accountability for Local Councils: A Practitioners' Guide", published by the Joint Practitioners Advisory Group; in Wales, a similar Guide published jointly by One Voice Wales and the Society of Local Council Clerks. Back

6   17th Report, Session 2013-14 (HL Paper 75). Back

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