Joint Committee on Statutory Instruments Twenty-Fourth Report


APPENDIX I

Memorandum by the Department of the Environment,
Transport and the Regions

LOCAL GOVERNMENT FINANCE (NEW PARISHES) REGULATIONS
1998 (S.I. 1998/119)

1.  By a letter from its Clerk dated 11th February 1998 the Committee has requested the Department to submit a Memorandum on the following points -

  (1) Explain -

      (a)  as to the modifications of the section 32 calculations, what power or powers are relied on;

      (b)  as to the modifications of the section 50 calculations, what power or powers are relied on; and

      (c)  if the answer to both (a) and (b) is: section 15 of the 1997 Act, explain for which provisions section 32(9) of the 1992 Act is relied on.

  (2)  In regulation 5(1) is the reference to a relevant parish meant to be a reference to a relevant parish council (as defined)?

The section 32 calculations

2.  The relevant powers are those conferred by sections 32(9) and 113 of the Local Government Act 1992 (`the 1992 Act') and section 15 of the Local Government and Rating Act 1997 (`the 1997 Act'). The powers in the 1992 Act relate to the calculation of budget requirements and those in the 1997 Act to the establishment, etc. of new parishes. In the circumstances covered by these regulations they overlap, and, in so far as they do, the regulations are not made under one power to the exclusion of the other.

3.  Under section 32(9) of the 1992 Act, regulations may alter the rules governing the making of the calculation under section 32(2) and, in particular, may delete or amend subsections (5) to (8B). The net effect of regulation 3(2) and (3) is to provide that, for the purposes of making the calculation under section 32(2)(a), the requirement to take into account the amount of a precept actually issued is disapplied (by treating section 32(6) as if it were omitted) and replaced by a requirement to take into account the amount specified in an order under section 14 of the 1997 Act. Accordingly, reliance is placed principally on section 32(9) of the 1992 Act (as read with section 113) as being a more specific power than section 15 of the 1997 Act.

The section 50 calculations

4.  There is no equivalent to section 32(9) in section 50, so there is no power (which could be exercised for this particular case) to modify the calculations for local precepting authorities as a whole. In modifying the calculations only in relation to new parishes and only for the first financial year, the Department relies on section 15 of the 1997 Act. Unless the calculations under section 50 were modified, the billing authority would be placed in difficulties, having made their calculations on the basis of the figure in the order under section 14 of the 1997 Act, if that figure were exceeded in the calculation under section 50. The Department believes that, in these circumstances, the transitional modification of the calculations to give full effect to the financial arrangements for the new parish council in its first year is authorised by section 15 of the 1997 Act, even though section 23 of the 1997 Act makes no specific provision for modifying the effect of statutory provisions other than those relating to elections.

`Relevant parish'

5.  The Department confirms that in regulation 5(1) the reference to `relevant parish' should have been to `relevant parish council' as defined in regulation 2. The Department regrets this error and will take steps to correct it at the next convenient opportunity.

17th February 1998


 
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