12 July 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.
DRAFT LOCAL GOVERNMENT (ORGANISATION AND
1. The foreword to the green paper Local Leadership,
states that the Government will be introducing, when time allows,
legislation so that new forms of local governance, including directly
elected mayors, can be adopted. The draft bill is printed as part
of that paper as are the explanatory notes.
2. A Joint Committee of both Houses has been set
up under the Chairmanship of Lord Bowness to undertake the pre-legislative
scrutiny of this draft bill. We welcome the invitation of that
Committee to report on the delegated powers in the draft bill.
As the departmental memorandum on the delegated powers will only
be prepared after the bill has received its first reading in the
House of Lords, the Committee lists in this report all those powers
but discusses only those which, in our view, might raise issues
for the pre-legislative scrutiny Committee to consider.
3. There are delegated powers in clauses 2(5) and
(8), 3(1) and (3), 7(5), 14(1) and (5), 15, 18, 21, 22(3) and
(4), 23, 25(1), 26(1), 30(4), 38(5)(b), 40(2), 42(1) and 46(3).
With the exception of the power conferred by clause 21 on the
Secretary of State, all these powers are exercisable for England
and Wales by the Secretary of State and for Wales by the Assembly
(this is achieved by clause 45(1)(a) and clauses 25(2), 26(2),
30(5), 38(6)(b), 40(3), 42(2) and 46(4)).
4. Where the Secretary of State exercises a power
the Parliamentary control is provided by clause 44(4) to (6).
Regulations under clauses 2(5), 21 and 23 and orders under clause
25 are subject to affirmative procedure; all other instruments
(other than a commencement order) made by him are subject to negative
HENRY VIII POWERS
5. Clause 2(8) allows regulations to amend
subsection (7)(a). Subsection (7) places an upper limit on the
size of the local authority executive whether it consists of an
elected mayor and councillors appointed by him (subsection (2))
or a councillor as leader together with councillors appointed
by him or the full council (subsection (2)). The number must not
exceed 10 members or 15 per cent of the total number of councillors.
Subsection (8) allows another number to be substituted for 10.
This is a very limited power and the Committee accepts that negative
procedure is appropriate.
6. Clause 14(5) allows the Secretary of State
to amend subsection (1)(a) by regulations subject to negative
procedure. This enables him to alter the percentage of the electorate
needed for a petition for a local referendum. Again this is a
limited power although a substantial increase in the percentage
could nullify the referendum procedure. On balance, however, the
Committee accepts that negative procedure is appropriate.
7. Clause 21(3)(c) allows regulations making
provision as to the conduct of elections for the return of elected
mayors to amend legislation relating to the registration of parliamentary
or local government electors. Delegated powers to establish procedures
for elections are common as is provision for amending relevant
existing legislation. The Committee accepts that this is an appropriate
power and that affirmative procedure is appropriate.
8. Clause 23 is a general power to modify
enactments "to give full effect to any provision" of
Part I of the bill. Subsection (2)(c) allows the repeal (or revocation)
of enactments. The Committee accepts that a consequential power
of this kind is appropriate and considers that affirmative procedure
is certainly appropriate.
9. Clause 44(3)(c) extends subsection (2)(b)
to allow repealing or revoking enactments. Clause 44(2) applies
to all powers in the bill and paragraph (a) allows incidental,
supplemental, consequential or transitional provision to be made
while paragraph (b) allows "modifications of enactments (whenever
passed or made) which are no more than necessary to give full
effect to any provision of the order or regulations". The
Parliamentary control will be that applicable to the power under
which the orders or regulations are made - and the majority of
powers in the bill are subject to negative procedure. It is arguable
that where primary legislation is repealed the Parliamentary control
should be affirmative but the Committee considers that the power
to repeal is so limited that negative procedure is appropriate
where that is provided for the primary delegated power.
OTHER AFFIRMATIVE POWERS
10. In addition to clauses 2(5), 21 and 23 discussed
above there is a power subject to affirmative procedure in clause
25. That clause allows the Secretary of State by order to specify
the principles which are to govern the conduct of members of relevant
authorities in England (the clause makes similar provision for
the Assembly to make an order for Wales). Subsection (3) provides
for consultation. It is clear that affirmative procedure is appropriate
for this important power.
11. Clause 16 requires local authorities to have
regard to guidance issued by the Secretary of State. Guidance
is in writing (subsection (4)(a)) but is not a statutory instrument.
While guidance is clearly important the Committee accepts that
it is not necessary to formalise it further or to provide for
some form of Parliamentary control.
CODE OF CONDUCT
12. Clause 26 provides for the issue of a model code
as regards the conduct of members of local authorities. Consultation
is required by subsection (4) but before this stage the Secretary
of State may invite "such representative of local government
in England as he considers appropriate" to propose a code
(subsection (6)). The code is issued by order subject to negative
procedure. There are corresponding arrangements for Wales. There
is nothing here which the Committee considers inappropriate.
13. Clause 42 provides for another code of conduct,
this time for "qualifying employees of local authorities".
There is provision for consultation in subsection (3) and again
the code is issued by order subject to negative procedure, which
the Committee considers appropriate.
14. There are no delegated powers in the draft bill
which the Committee would need to draw to the attention of the
House if the bill were introduced in its present form.
1 Cm 4298, March 1999. Back
2 Our terms of reference restrict us to considering the delegated
powers in the draft bill, rather than the bill in its entirety. Back
3 This report is also published on the Internet at the House of
Lords Select Committee Home Page (http://www.parliament.uk), where
further information about the work of the Committee is also available. Back