First Report
Cities and Local Government
Devolution Bill [HL]
1. The Bill had its second reading on 8 June.
It is concerned with enabling a wider range of functions to be
devolved to a combined authority established under the Local Democracy,
Economic Development and Construction Act 2009 ("the 2009
Act"). The Bill also allows a combined authority to have
an elected mayor and for the mayor to be given sole responsibility
for exercising some of the functions of the authority. Where
a combined authority has an elected mayor, the Bill also allows
the mayor to exercise the functions of the police and crime commissioner
for the combined authority's area. Apart from the provisions relating
to combined authorities, the Bill also contains provisions which
will allow changes to be made both to the constitution, membership
and governance of local authorities and to local authority areas
and structures.
2. The Bill is in essence an enabling Bill in
that it primarily confers delegated powers rather than containing
operative provisions. The Department for Communities and Local
Government and the Home Office have together provided us with
a memorandum explaining the delegated powers in the Bill.[1]
Schedule 1 - Election of Mayors
3. Schedule 5B to the 2009 Act (which is inserted
by Schedule 1 to the Bill) makes provision about the election
of mayors. The Bill does not specify the dates on which elections
are to take place or the ordinary length of a mayor's term of
office. Instead, paragraph 2 of Schedule 5B provides for these
matters to be set out in an order made by the Secretary of State
subject to the affirmative procedure.
4. The memorandum explains that these powers
are needed because orders providing for there to be a mayor of
a combined authority could be made at any time in the electoral
cycle and they enable the Secretary of State to synchronise the
timing of mayoral elections with other elections.
5. This does not in our view explain why it is
not feasible to set out on the face of the Bill the date of elections
and the length of the term of office, which are to apply once
the process of synchronisation has taken place. Reliance is placed
on section 9HB of the Local Government Act 2000 which contains
similar powers in relation to the election of local authority
mayors. However the memorandum fails to acknowledge that in that
case the primary legislation still sets out the default position:
that the mayor's term of office should be four years and that
elections should take place on the ordinary day of election for
local authorities in the election year.
6. Given the importance of the functions which
a mayor is able to exercise, and the emphasis placed by the Government
on the democratic accountability offered by an elected mayor,
we do not consider it appropriate for the Bill to delegate to
subordinate legislation the ordinary length of a mayor's term
of office or the ordinary election dates. It seems to us that
any power to provide for those things in subordinate legislation
should be limited so that it can only be exercised to the extent
necessary to allow synchronisation with other elections, when
the office of a mayor is first established.
Clause 6 - Transfer of public authority functions
7. Clause 6 amends the 2009 Act to insert two
new sections, sections 105A and 105B, into the provisions on combined
authorities. Section 105A allows the Secretary of State by order
to confer on a combined authority a function of any public authority
(other than a district or county council). The powers under section
105A can be exercised where either the function is exercisable
in relation to the combined authority's area, or it is exercisable
in relation to another area.
8. Section105B limits the circumstances in which
an order may be made under section 105A: an order may only be
made where it has been proposed by the participating local authorities
or, in a case where there is an existing combined authority, where
that authority consents to it and the Secretary of State considers
that the order is likely to improve the exercise of statutory
functions in the authority's area. But there is no requirement
on the Secretary of State to consult anyone else who may be affected
by the proposal, including the public authority whose functions
are being transferred.
9. There is no limit on the kinds of public authorities
whose functions can be conferred on a combined authority, with
subsection (4) making it clear that it includes Ministers and
government departments. Also, the only restrictions on the kinds
of functions which may be conferred on a combined authority are
that:
· the
function is exercisable in relation to a defined area (whether
the area of the combined authority or another area); and
· it
is not a function which is a power to make regulations or other
instruments of a legislative character (see the definition of
"function" in section 105A(4)).
10. We do not consider that the departmental
memorandum adequately explains the very wide powers conferred
by section 105A. Paragraph 28 of the memorandum states that the
purpose of the power is to widen the scope of the functions which
may be conferred on a combined authority; and that the order-making
power is necessary to give effect to devolution agreements between
the Government and a particular city or other area. But it says
nothing about how in practice these powers might be used, or why
it is not appropriate or practicable to include a description
of the types of function covered by the power on the face of the
Bill.
11. We are also concerned that, while some
protection is offered by the requirement for the local authorities
concerned to consent to the proposal, there is no mechanism for
requiring the Minister to consult anyone else who may be affected
by the proposal. Accordingly we consider that the delegation
of powers by section 105A is inappropriate.
Schedule 3 - Overview and scrutiny committees
12. Schedule 5A to the 2009 Act (which is inserted
by Schedule 3 to the Bill) requires a combined authority to appoint
one or more overview and scrutiny committees. The functions of
overview and scrutiny committees are set out in paragraph 1 of
Schedule 5A. They are to review or scrutinise decisions of the
authority and mayor, to make reports or recommendations about
the discharge of functions, and to make recommendations about
matters that may affect the authority's area or inhabitants.
Paragraph 3 of Schedule 5A confers power on the Secretary of State
by order to make further provision about overview and scrutiny
committees.
13. The powers conferred by paragraph 3 of Schedule
5A are subject to the negative procedure. The departmental memorandum
states that this affords an appropriate level of Parliamentary
procedure because the provisions contained in the order will be
operational and therefore procedural in nature. We do not
agree. The order-making powers conferred by paragraph 3 include
the power make provision about the membership and who is to be
the chair of the committee. The Department acknowledges
in paragraph 31 of its memorandum that overview and scrutiny committees
have a key role in ensuring effective and transparent accountability.
In our view, this fact together with the nature of the provisions
which can be included in an order under paragraph 3 of Schedule
5A make it appropriate for the affirmative procedure to apply.
Clause 10 - Governance arrangements etc. of local
authorities in England
14. Clause 10 confers a regulation making power
on the Secretary of State to make provision about the governance
arrangements operated by local authorities, the constitution and
membership of local authorities, and the structural and boundary
arrangements for local authorities. Subsection (4) of clause
10 allows these powers to be exercised by amending, repealing
etc. provisions of primary legislation. Regulations under clause
10 are subject to the affirmative procedure.
15. On the face of it, clause 10 constitutes
a very broad power to make changes both to the membership and
governance of local authorities in England, and to alter local
authority areas and structures. The only limit on the Secretary
of State's powers under clause 10 is that the regulations may
only be made if the local authorities to whom they apply consent
to their making.
16. The reasons for the delegation are set out
in paragraph 43 of the departmental memorandum. It is intended
to allow local authorities to agree a re-organisation of the local
government structures for their combined areas, in circumstances
where the establishment of a combined authority is not appropriate.
The example given is of a single county council which covers
a functional economic area. It is suggested that all the constituent
councils for that area might agree that there is a need for strong
and accountable governance which requires the simplifying of the
local government structures for the area. However the powers
are not limited to such a case. They would also allow changes
to be made to the governance, membership and constitution of individual
local authorities.
17. Nothing is said on the face of the Bill
about the purposes for, or the circumstances in, which the powers
may be exercised. This contrasts with the position for combined
authorities under Part 6 of the 2009 Act. In that case, the Secretary
of State can only exercise the powers to establish a combined
authority if doing so is likely to improve the exercise of statutory
functions for the area concerned. There is also the requirement
on the Secretary of State in exercising the powers to have regard
to the need to reflect the identities and interests of local communities
and to secure effective and convenient local government. Furthermore,
a duty is imposed on the Secretary of State to consult not only
the affected local authorities but also such other persons as
he or she considers appropriate. We are not convinced that
requiring the consent of the local authorities affected is by
itself a sufficient control over the very wide powers conferred
by clause 10. In our view the delegation is inappropriate without
the exercise of the powers being made subject to similar constraints
and protections as those which apply to the establishment of a
combined authority under Part 6 of the 2009 Act.
DE-HYBRIDISING PROVISION
18. Clause 10(6) disapplies the hybrid instrument
procedure for regulations under clause 10. We draw this to
the attention of the House, so that the House may consider whether
the consent procedures provided by the clause are sufficient.
Clause 11 - Power to make minor and consequential
amendments
19. Clause 11(2) enables the Secretary of State
to make consequential amendments by regulations. Such provisions
are by now very familiar as a feature of almost every bill of
any size. In this case, as in others, the powers may be exercised
by amending, repealing, revoking or otherwise modifying a provision
of primary or subordinate legislation. Where the regulations
amend or repeal a provision of primary legislation, subsection
(4) of clause 11 provides for the affirmative procedure to apply.
In all other cases, the regulations are subject to the negative
procedure. This includes where the powers are exercised by "otherwise
modifying" a provision of primary legislation.
20. This Committee has on numerous occasions
in the recent past recommended that, where a delegated power of
the kind conferred by clause 11(2) can be exercised either by
amending or by "otherwise modifying" a provision of
primary legislation, then the affirmative procedure should apply
to both exercises of the power, or otherwise the powers to otherwise
modify should be removed. Underlying our view is the fact that
a non-textual modification of primary legislation is capable of
making changes which are no less significant than textual amendments.
Until the end of the last Parliament the Government's response
to these concerns was generally to amend the provision to make
the "otherwise modifying" power also subject to the
affirmative procedure, where it modifies a provision of primary
legislation. However since then three Bills reached the Committee
that contained powers to make consequential modifications in primary
legislation, and in those cases the "otherwise modifying"
power did not require the affirmative procedure.
21. In one such case, the Small Business, Enterprise
and Employment Bill, the Government set out a lengthy justification
in its memorandum. The point was made that the kinds of modification
which can be made to primary legislation are very diverse; and
within this wide spectrum there are many in respect of which,
because the modification of primary legislation is only very indirect,
or because it only operates for limited purposes, it is inappropriate
that it should be treated as equivalent to an amendment of the
primary legislation and therefore made subject to the affirmative
procedure. It was suggested that it will only be very rarely that
a non-textual modification of primary legislation is made that
is akin to a textual amendment; and in such a case the Government
would undertake to exercise the powers in a way that would subject
them to the affirmative procedure. In this case, the Department
have referred in its memorandum to the justification provided
with the Small Business, Enterprise and Employment Bill. As in
that case, the Department undertakes that, where it is proposed
to exercise the powers conferred by clause 11 by making a modification
to primary legislation which is equivalent to a textual amendment,
the power will be exercised in a way that requires the affirmative
procedure to apply.
22. Although the Government consider that the
negative procedure will generally be appropriate they acknowledge
that a power to otherwise modify primary legislation can be exercised
in a way that is equivalent to a textual amendment. Given that
fact, we do not consider it acceptable that any current or future
Minister should be the one to make the judgment in a particular
case as to the Parliamentary procedure that is to apply. In
our view if the Government consider that particular kinds of modification
of primary legislation only require the negative procedure, those
particular cases should be set out on the face of the Bill. We
remain firmly of the view that the general principle should be
that modifications of primary legislation are subject to the affirmative
procedure in line with the procedure for textual amendments.
Psychoactive Substances
Bill [HL]
23. This Bill makes provision prohibiting the
production, distribution, sale and supply of psychoactive substances
in the United Kingdom, creates offences and introduces civil sanctions
for breaches of those prohibitions, and confers a range of enforcement
powers. The Bill contains five sets of delegated powers, in clauses
3, 10, 29 to 31, 55 and 57, which are explained in a memorandum
submitted by the Home Office.[2]
There are only two powers that we need draw to the attention
of the House.
Clause 3 - Amendment of list of exempted substances
24. A substance is not a psychoactive substance
(see clause 2(1)(b)) if it is an "exempted substance",
which is defined in clause 3(1) as a substance listed in Schedule
1. Clause 3(2) enables the Secretary of State, by regulations
subject to the draft affirmative procedure, to amend Schedule
1: (a) to "add or vary any description of substance",
or (b) to "remove any description of substance added under
paragraph (a)". The effect of adding a description of substance
to Schedule 1 is that the substance of that description would
then be an exempted substance (and accordingly no longer a psychoactive
substance). The effect of removing a description of substance
would be the reverse, i.e. that it was no longer an exempted substance;
but the power to remove is confined to descriptions that have
been added by regulations under subsection (2)(a).
25. In the light of what is said in paragraphs
4 to 8 of the Home Office's memorandum, we are satisfied that
both the delegation in subsection (2) of clause 3 and the level
of Parliamentary control proposed in subsection (5) are, in principle,
appropriate.
26. However, we note that subsection (2)(a) also
enables a description of substance to be varied, and it appears
to us that this could apply either to a description appearing
in Schedule 1 on enactment, or to one that has been added by regulations
under subsection (2)(b). The penultimate sentence of paragraph
5 of the memorandum envisages that the power of variation might
be used to update references to legislation (see, for instance,
paragraphs 2 to 5 of Schedule 1). But that power is clearly broader
in scope and might in our view be used to vary a description of
substance so that it no longer included something that previously
fell within Schedule 1 - with the result that it ceased to be
exempted, and so became a psychoactive substance.
27. We draw this to the attention of the House,
so that it may consider whether clause 3 should be amended to
preclude the possibility of the power of variation under clause
3(2)(a) being exercised so that something which, on the enactment
of Schedule 1, is an exempted substance ceases to be exempted.
Clause 55 - Consequential Amendments
28. Clause 55 confers powers enabling the Secretary
of State to make, by regulations, consequential amendments in
primary or subordinate legislation; and where the regulations
amend, repeal or revoke primary legislation, they require affirmative
approval; otherwise, they attract negative procedure. Subsection
(2)(c) provides that the power "may be exercised by amending,
repealing, revoking or otherwise modifying provision made by or
under primary legislation …"; yet, the affirmative procedure
is not required for regulations that "modify" primary
legislation.
29. This issue is explained in paragraph 16 of
the Home Office's memorandum. Substantially the same issue arises
in relation to an equivalent provision in the Cities and Local
Government Devolution Bill, and we have dealt with it more fully
at paragraphs 19 to 22 above in the context of that Bill. In
line with our conclusions in paragraph 22 above, we consider that,
if the Government believe that the negative procedure is the appropriate
level of scrutiny for particular categories of modifications of
primary legislation, they should specify those categories in clause
55.
Charities (Protection
and Social Investment) Bill [HL]
30. The Bill would amend the Charities Act 2011
("the 2011 Act") to confer additional powers on the
Charity Commission to take remedial action in connection with
misconduct or mismanagement by charity trustees, in particular
by allowing the Commission to disqualify a person from being a
charity trustee for up to 15 years. The Bill would also expand
the circumstances in which a person is automatically disqualified
from being a trustee, and permit charities to make social investments
(i.e. ones which make both a financial and social return).
31. The provisions of the Bill concerning the
protection of charities and disqualification of trustees reproduce
with a few changes the contents of the draft Protection of Charities
Bill, published in October 2014. We made some observations on
the delegated powers in the draft Bill to the Joint Committee,
chaired by Lord Hope of Craighead, established to scrutinise it.
The Joint Committee's report on the draft Bill was published
on 3 February 2015.[3]
Our advice is reproduced in Appendix 3 to that report. The Joint
Committee recommended that the Government should consider the
concerns that we expressed.
32. The Government's response to the Joint Committee's
report was published in March 2015.[4]
It dealt with only one of the points raised in our observations,[5]
and the Bill as introduced contains no changes to reflect those
issues. The delegated powers memorandum submitted with the Bill
is substantially the same as that provided in relation to the
draft Bill.[6] However,
at the invitation of our adviser, the Cabinet Office did provide
(on 8 June) a supplementary memorandum addressing the points made
in our advice to the Joint Committee.[7]
33. In light of that supplementary memorandum,
there is only one aspect of the Bill that we wish to draw to the
attention of the House.
Clause 9(7): automatic disqualification from being
a charity trustee
34. Clause 9 would amend section 178 of the 2011
Act so as to provide for the automatic disqualification of a person
from being a charity trustee if he or she is convicted of (a)
any offence involving dishonesty or deception, or (b) an offence,
not involving either of those things, specified in a new section
178A inserted by clause 9(7). Subsection (1) of new section 178A
specifies a number of criminal offences not involving dishonesty
or deception conviction for which would result in automatic disqualification.
The offences specified include ones under terrorism and money
laundering legislation, the Bribery Act 2010, misconduct in public
office, perjury and perverting the course of justice. It is a
criminal offence to act as a trustee while disqualified: see section
183 of the 2011 Act.
35. The new section 178A(4) would enable the
Minister for the Cabinet Office, by affirmative procedure regulations,
to add new offences to those specified in section 178A(1) or to
remove ones already specified.
36. We advised the Joint Committee that we were
satisfied with the delegation and the level of scrutiny. We accepted
the Cabinet Office's justification that it may be necessary in
the future to take urgent steps to specify offences that should
carry automatic disqualification, and agreed that the affirmative
resolution procedure would provide a safeguard against any inappropriate
exercise of the power.
37. Paragraphs 5 and 6 of the supplementary memorandum
refer to a connected matter which we raised with the Joint Committee
when we looked at the draft Bill. This relates to the commencement
of new section 178A, and of the regulations that could be made
under the power conferred by new section 178A(4), in respect of
persons already convicted of the offences specified or that could
be specified. We thought that it could be unfair to impose immediate,
automatic disqualification, and the consequent risk of prosecution
of the offence under section 183 of the 2011 Act, without giving
such persons sufficient notice that they were required to withdraw
from the affairs of the charity. The charity itself may need
time to find a replacement trustee. We indicated that two months
may be an appropriate period to allow, as it would reflect the
convention that, except in cases of particular need, primary legislation
does not come into force less than two months after the date on
which it is enacted.
38. Paragraph 6 of the supplementary memorandum
explains:
"The Cabinet Office recognises the need for
individuals to be alerted to the effect of new section 178A, and
any regulations made under it, before they come into force. This
will be taken into account in deciding when the Bill and any future
regulations are commenced to ensure that sufficient time is allowed
before the commencement of such provisions. It is not envisaged
the Bill will be commenced less than two months after Royal Assent
and, generally speaking, it is not envisaged that regulations
will be commenced less than two months after being made."
39. The language used is equivocal, and contrasts
with the clearer assurance given by the Government in paragraph
40 of its response to the Joint Committee's report ("…
we commit to ensuring that sufficient time would be allowed before
the commencement of [the] provisions").
40. We therefore invite the House to seek
at least a firmer commitment from the Minister than that given
in paragraph 6 of the supplementary memorandum, or, better still,
to consider amending the Bill to provide that a disqualification
may not take effect under new section 178A, in relation to a person
previously convicted of a specified offence, sooner than two months
after commencement of the section or (as the case may be) regulations
made under subsection (4).
Medical Innovation Bill
[HL]
41. There is nothing in this Bill which we wish
to draw to the attention of the House.
Draft Legislative Reform
(Further Renewal of Radio Licences) Order 2015
42. This draft Legislative Reform Order (LRO)
has been laid by the Department for Culture, Media and Sport (DCMS)
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. DCMS states that the purpose
of the LRO is to allow certain commercial radio licences which
are due to expire between 2017 and 2021 to be renewed for a further
five-year period.
Background
43. DCMS sets the LRO in the context of the anticipated
switchover from analogue radio (broadcasting on FM and AM) to
digital radio (DAB). Amendments made to the Broadcasting Act
1990 ("the 1990 Act") by the Digital Economy Act 2010
("the 2010 Act") allowed Ofcom (the communications regulator)
to renew the licences of commercial radio stations, to support
the migration to digital radio. In 2010 the Government and radio
industry anticipated that, with good progress, the switchover
could be completed in 2017 or 2018. The proposed seven-year duration
for licence renewals in the 2010 Act reflected this expectation,
as in such a scenario it made sense for analogue licences to begin
to lapse around this time, as they would no longer be necessary.
44. However, the take-up of digital radio has
been slower than expected, and in December 2013 the Government
concluded that it was not the right time to commit to a radio
switchover, or set a firm or indicative timetable for a future
switchover. As a result, the licences of over 60 radio stations
which were renewed following the 2010 amendment of the 1990 Act
will expire between 2017 and 2021, before the date when a switchover
is now likely to be possible.
45. DCMS says that, if it allowed analogue licences
to expire, and a new competition were to take place, any new entrant
might hold an analogue licence starting in 2018 only for three
to five years (rather than the normal 12), given that Ofcom has
the power to terminate licences with a two-year notice following
Government confirmation of a timetable for a radio switchover.
DCMS adds that this is unlikely to be enough time for a new entrant
to be able to achieve a reasonable return on the investment of
establishing a new analogue radio service.
Proposed changes
46. After consultation, DCMS has decided to resolve
these difficulties by means of the amendments to the 1990 Act
contained in the LRO. These would allow Ofcom to renew for a
further five-year period licences already renewed under sections
103B (national licences) and 104AA (local licences) of the 1990
Act.
Tests in the 2006 Act
47. We obtained additional information from DCMS
in support of its statements that the LRO does not remove any
necessary protections, for either the radio industry or public,
and that it does not prevent any person from continuing to exercise
any right or freedom which that person might reasonably expect
to continue to exercise. We also received additional information
from DCMS about its view that the LRO does not prevent any person
from continuing to exercise any right or freedom which that person
might reasonably expect to continue to exercise, which we requested
in the knowledge that DCMS' own consultants, Value Partners, had
taken a different view of the issue. We are publishing that additional
information at Appendix 1.
Parliamentary procedure
48. DCMS has proposed that the LRO be subject
to the affirmative resolution procedure.
Conclusions
49. In the light of the Explanatory Document
and the supplementary material provided by DCMS, 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;
and also that the affirmative resolution procedure proposed by
the Government is appropriate.
Draft Legislative Reform
(Combined Authorities and Economic Prosperity Boards) (England)
Order 2015
50. This draft Legislative Reform Order (LRO)
has been laid by the Department for Communities and Local Government
(DCLG) 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.
51. DCLG states that the purpose of the draft
LRO is to amend provisions within Part 6 of the Local Democracy,
Economic Development and Construction Act 2009 ("the 2009
Act"), which enables the establishment of combined authorities
(CAs) and economic prosperity boards (EPBs).
Background
52. DCLG states that the provisions of Part 6
of the 2009 Act are designed to enable local authorities in England
to drive their own area's growth through asking the Secretary
of State to establish a CA or EPB to help them collaborate across
the boundaries of the local authorities within the functional
economic area. There is no requirement for local authorities
to set up such bodies.
53. The 2009 Act obliges local authorities that
wish to establish a CA or EPB to undertake a review of their governance
arrangements. The geographical area of the review needs to be
the same as that for the proposed CA or EPB. The 2009 Act specifies
a number of conditions that the geographical areas of a proposed
CA or EPB need to meet. These conditions are set out in paragraph
15 of the ED to the LRO: they include in particular the requirements
that only local authorities with contiguous boundaries may join
to form a CA or EPB, and that the area of a CA or EPB must consist
of the whole of two or more local government areas.
Proposed changes
54. The LRO would make three changes to the provisions
of the 2009 Act, in order:
· to
enable local authorities with non-contiguous boundaries to join
or form a CA or EPB, or to enable a "doughnut-shaped"
CA or EPB. DCLG says that this would reduce burdens by enabling
local authorities that could not currently form a CA or EPB to
do so. As a result, they could collaborate effectively on economic
development, regeneration (and for CAs, transport), and thus promote
economic growth; and this would reduce an obstacle to efficiency,
productivity or profitability;
· to
enable the delegation or sharing of a county council's transport
functions with a CA for part of the county council's area. This
would enable a county council to delegate its powers to the CA
only for the areas of the districts which are within the CA, and
therefore provide greater flexibility to a county council. It
would in turn reduce burdens by enabling CAs to cover areas that
reflect the functional economic area where that does not align
with the boundary of the country council; and
· to
simplify the processes required to make less significant changes
to an existing CA or EPB. This would reduce an administrative
inconvenience.
Tests in the 2006 Act
55. We are satisfied that, in relation to the
proposed changes which are identified in the ED, the Department
has shown that they meet the tests set out in the 2006 Act and
are not otherwise inappropriate for the Legislative Reform Order
procedure.
56. However, in one significant respect, we consider
that DCLG has failed to identify and explain all the changes proposed
to be made by the LRO. At present, the Secretary of State has
the power to provide that an EPB can exercise a function of a
local authority across the whole of a local authority's area where
this falls within the area of the EPB: this power is conferred
by Section 91(1) of the 2009 Act. Article 4 of the LRO would extend
this power, so that the Secretary of State would be able to provide
that an EPB could exercise a function of a local authority where
only part of the local authority's area fell within the EPB's
area. (The powers conferred by section 91(1) also apply in relation
to CAs by virtue of section 105.) Nothing is said in the ED about
the provision made by article 4 (either as it applies to EPBs
or to CAs).
57. Our preliminary view is that the failure
to include in the ED any explanation about the effect of article
4 is a breach of section 14(2) of the 2006 Act, which requires
the ED to introduce and give reasons for the provisions which
have been included in the draft LRO and to include an assessment
of the extent to which a provision made by the draft LRO would
remove or reduce any burden.
Defective drafting
58. We have in addition identified what appear
to us to be defects in the drafting of the amendments made by
articles 6 and 15. The point is the same in each case, as the
articles amend parallel provisions (namely, sections 98(3) and
109(3) of the 2009 Act). In each case, the provision being amended
sets out the requirements which must be met for the scheme area,
where one or more local authorities are proposing to publish a
scheme for the establishment of an EPB or CA. However, the words
imposing the relevant requirement have been lost in the amending
words. So, rather than as at present saying "the scheme
area … must meet conditions A to C in section [88/103]
…", the amended text says that "the scheme area
… meets conditions A to C in section [88/103] , or
… meets conditions A and D … and condition F…".
These amendments are misconceived, because they describe a state
of affairs about the scheme area rather than specifying the condition
which the scheme area is required to meet.
Parliamentary procedure
59. DCLG has proposed that the LRO be subject
to the affirmative resolution procedure.
Conclusions
60. In the light of the concerns set out above,
we are not yet in a position to take a view on whether the draft
LRO is appropriate to be made under the 2006 Act (and, if so,
on whether it meets the tests in the 2006 Act). Given that our
concerns are unresolved, we recommend that the LRO be subject
to the super-affirmative procedure; and we look to the Department
to respond to these concerns during the extended period entailed
by that procedure.
61. We note that the Government have introduced
the Cities and Local Government Devolution Bill, currently before
this House, and that provisions in that Bill relate to the same
policy area as that addressed by the LRO. It seems to us that
operating in one policy area through two separate legislative
vehicles, which are progressing in parallel though at different
speeds, presents particular difficulties to the House in considering
the combined effects of the changes proposed.
1 Department for Communities and Local Government and
Home Office, Memorandum by the Department for Communities and
Local Government and Home Office to the Delegated Powers and Regulatory
Reform Committee: http://www.parliament.uk/documents/DPRR/2015-16/Bills/
Cities-and-Local-Government-Devolution/01-Cities-and-Local-Government-Devolution-DP-Memo.pdf Back
2
Home Office, Delegated Powers Memorandum, 29 May 2015:
http://www.parliament.uk/documents/DPRR/2015-16/Bills/
Psychoactive-Substances/02-Psychoative-Substances-DP-Memo.pdf Back
3
Joint Committee on the Draft Protection of Charities Bill,
Draft Protection of Charities Bill
(Report, Session 14-15, HL Paper 108, HC 13). Back
4
Cabinet Office, Government Response to the Joint Committee
on the Draft Protection of Charities Bill, CM 9056, March
2015:
https://www.gov.uk/government/uploads/system/uploads/
attachment_data/file/418027/
Government_response_to_joint_committee_on_draft_protection_of_charities_Cm_9056_accessible.pdf Back
5
Cabinet Office, Government Response to the Joint Committee
on the Draft Protection of Charities Bill,
CM 9056, March
2015, paragraph 40. Back
6
Cabinet Office, Delegated Powers Memorandum, 27 May 2015
:
http://www.parliament.uk/documents/DPRR/2015-16/Bills/
Charities-(Protection-and-Social-Investment)/03-Charities-(Protection-and-Social-Investment)-DP-Memo.pdf
Back
7
Cabinet Office, Supplementary Delegated Powers Memorandum,
8 June 2015
http://www.parliament.uk/documents/DPRR/2015-16/Bills/
Charities-(Protection-and-Social-Investment)/04-Charities-(Protection-and-Social-Investment)-DP-Supplementary-Memo.pdf
Back
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