Select Committee on Delegated Powers and Deregulation Twelfth Report


14 APRIL 1999

By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.

Local Government Bill


1.  The purpose of this bill is "to make provision imposing on local and certain other authorities requirements relating to economy, efficiency and effectiveness; and to make provision for the regulation of council tax and precepts."

2.  The Department's memorandum identifies the powers contained in the bill, describes how they might be used and justifies the Parliamentary control provided for them. The bill confers power to make orders and regulations and also provides for "guidance" and "directions". Those powers are also discussed in the memorandum. Part II of the bill is concerned with the regulation of council tax and precepts and builds on the Local Government Finance Act 1992 (to which Schedule 1 to the bill adds a new Chapter of 24 sections). As this Part is concerned with money the Parliamentary controls under it are conferred on the Commons only.

affirmative powers

3.  Clause 2 confers three powers to extend or disapply the "best value" provisions of the bill. Each is subject to affirmative procedure (subsection (6)), which the Committee considers appropriate.

4.  Clause 15 confers on the Secretary of State two powers (or strictly speaking one power with two subject matters). Subsection (1) allows him to make an order modifying or excluding any enactment which prevents or obstructs compliance with Part I of the bill. Subsection (2) allows an order to confer on best value authorities any power which the Secretary of State considers necessary or expedient to permit or facilitate compliance with Part I. The remainder of the clause and clause 16 supplement clause 15(1) and (2). The House will wish to note that this is a Henry VIII power.

5.  The procedure for making an order under clause 15 resembles that for making a deregulation order under the Deregulation and Contracting Out Act 1994 but does not contain any reference to Parliamentary consideration. Unlike the power to make deregulation orders, however, the clause 15 power is for a specific purpose, and the Committee is satisfied that it is appropriate that the power should be delegated and that affirmative procedure is appropriate. The additional provisions about consultation (clause 16(1)) and laying before Parliament (Clause 16(2) to (5)) do not include the words in section 4(4) of the 1994 Act which require the minister to have regard to "any resolution or report of or of any committee of, either House of Parliament with regard to the [proposal]". The Committee considers that this departure from the 1994 Act precedent is justified; the special arrangements in that Act were necessary because of the uncertain width of the powers, while in comparison, clause 15 has a clear and limited purpose.

6.  The sections to be inserted in the 1992 Act by Schedule 1 include affirmative powers (in section 52F(4), 52H(2), 52Q(2), 52S(2) and 52X(6)). In each case control is given to the Commons only, which the Committee considers appropriate in view of the financial subject matter of the powers.

negative powers

7.  All other powers to make orders or regulations (except the commencement power) are subject to negative procedure.

clause 14

8.  As the Government's explanatory notes explain, "clause 14 offers the Secretary of State a wide range of intervention powers". In exceptional circumstances, subsection 14(8) allows the Secretary of State to give a direction to the best value authority without allowing an interval for representations such as is set out at subsections 14(6) and 14(7).[1] During the second reading debate concern was expressed that Clause 14 does not specify the basis on which the Secretary of State would use this direction-giving power,[2] which the Minister said would "be used as a last resort when all other measures have failed".[3] Since this is not a secondary legislative power, it is not for this Committee to comment on it. The House may, however, wish to note that non-statutory safeguards will be provided in the form of a Protocol on Intervention to be agreed between central government and the Local Government Association under the Framework for Central Local Partnership.[4]


9.  The bill makes special provision for Wales. Clause 28(1) translates references in Part I (other than clauses 15 to 17 and 26) to the Secretary of State to references to the Assembly and excludes the requirements of affirmative and negative procedure. So orders or regulations applying to Wales other than those made under clauses 15 to 17 would be made by the Assembly.

10.  Similar provision is made for Part II by clause 30(13) and, in Schedule 1, section 52Z.


11. The House will wish to note the Henry VIII power in clause 15. There is nothing else in the bill which the Committee wishes to draw to the attention of the House.

1   Paragraphs 44 and 45. Back

2   HL Deb., 12 April 1999, col. 585. Back

3   HL Deb., 12 April 1999, col. 573. Back

4   Paragraph 74 of the Department's Memorandum. Back

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