Select Committee on Delegated Powers and Deregulation Thirty-Fourth Report



ANNEX

POLITICAL PARTIES, ELECTIONS AND REFERENDUMS BILL

Joint Memorandum by the Home Office and the Department of the Environment, Transport and the Regions

1. This Memorandum is concerned with the Political Parties, Elections and Referendums Bill and is supplemental to the Memorandum dated 17 March and reported on in the Eleventh Report of the Committee (29 March 2000) and the Memorandum dated October and reported on in the Twenty-ninth Report of the Committee (4 October 2000).

2. The Memorandum concerns proposed Government Amendments which have not been considered and which make further provision for delegated legislation. It explains the purpose of these provisions, and the reason for the delegated legislation procedure proposed.

3. References are to the Bill as amended in Committee and ordered to be printed on 24 October.

THE POWERS

4. Clause 17 of the Bill provides for the Secretary of State, by Order, to make provision for and in connection with transferring to the Electoral Commission, or to the Boundary Committee for England, any of the functions of the Local Government Commission for England (LGC). This Order making power, as explained in the Memorandum of 17 March, is subject to the negative resolution procedure. In its Report of 29 March the Committee concluded that no amendment was necessary to this delegated power or to the parliamentay control provided for it.

5. The amendments to clause 17 make further provision in relation to this Order making power. This further provision is to allow any transfer of functions from the LGC to the Electoral Commission, or to the Boundary Committee for England, to include provision transferring to the Electoral Commission, terminating, or modifying certain associated functions of the Secretary of State.

6. The associated functions of the Secretary of State which it is proposed an Order could transfer to the Electoral Commission includes the power of the Secretary of State to make Orders under section 17 of the Local Government Act 1992 implementing recommendations of the Commission relating to electoral arrangements. Such Orders are not subject to any Parliamentary procedure. None of the Secretary of State's functions transferable to the Electoral Commission involve order making powers which are subject to Parliamentary procedure.

7. The further provision made by the proposed new subsection (1A) is also to allow an Order under Clause 17 to prevent the Secretary of State from exercising certain of his functions unless he has sought advice from the Electoral Commission, or to authorise the Secretary of State to seek such advice in connection with the exercise of such functions. In addition, the new subsection would allow such an Order to modify any function transferred by it, so far as the function is exercisable by the Electoral Commission or the Boundary Committee.

8. Without an Order being able to include these additional provisions a transfer of functions from the LGC could place the Secretary of State in a position in relation to certain local government electoral, boundary and structure issues where he could direct the Commission to take a specified course of action. The Government believes that were such a position to arise, this would compromise the independence of the Commission.

9. Finally, the proposed new subsection (1A) allows a Clause 17 Order to provide the Electoral Commission with functions related to electoral areas or other electoral arrangements relating to the Isles of Scilly. This is to enable the electoral arrangements of the Isles of Scilly to be reviewed, as for other local authorities

10. An amendment to Clause 153(4) would provide that Orders made under Clause 17 are to be subject to the affirmative resolution procedure of both Houses of Parliament.

11. If the Bill is enacted, the Government intends through Orders made under the powers of Clause 17 to transfer to the Electoral Commission with modifications all the current functions of the LGC relating to electoral arrangements. It is also intended to transfer to the Electoral Commission all of the Secretary of State's functions relating to these arrangements, including his powers to make Orders implementing the LGC's recommendations on electoral arrangements. All matters connected with electoral arrangements are therefore to be for the independent Commission.

12. As to the LGC's other functions, which relate to boundary and structure change, it is intended to transfer these to the Commission with modifications. It is also intended to terminate the Secretary of State's powers of direction in relation to such changes, to prevent his implementing such changes without first obtaining advice from the Commission, and to authorise him to seek advice about such changes.

TYPE OF PARLIAMENTARY SCRUTINY

13. In the Memorandum of 17 March 2000 the Department explained why it was appropriate to leave to delegated legislation the matter of transferring to the Electoral Commission one or more of the functions of the LGC. That Memorandum also explained that as this delegated legislation would confer additional functions on the Electoral Commission, it was thought desirable that the delegated legislation should be subject to some parliamentary scrutiny, and that it was considered that the negative resolution procedure was sufficient. In their Report of 29 March this was accepted by the Committee.

14. As explained above the Amendments now being sought seek to enable Orders under Clause 17 to make provision for certain matters which are connected with or supplemental to a transfer to the Electoral Commission of functions of the LGC. It is considered appropriate that such provision is to be made by means of the Orders which effect the transfer itself of functions to the Electoral Commission. However, as these additional provisions may involve, not only the conferring of additional functions on the Commission, but also the termination or modification of existing functions, it is considered that Orders made pursuant to Clause 17 should be subject to parliamentary scrutiny through the affirmative resolution procedure.

15. As also described above the proposed Amendments would allow an Order made under Clause 17 to transfer to the Electoral Commission the Secretary of State's power to make Orders under Section 17 of the Local Government Act 1992 implementing recommendations of the LGC relating to electoral arrangements. The discretion of the Secretary of State in relation to such Orders is limited to implementing the LGC's recommendations, with or without modifications. Such Orders are not subject to any parliamentary scrutiny. It is considered appropriate that this should remain the case where the function of making such Orders has been transferred to the Electoral Commission.

16. Proposed Government amendments to clauses 18 and 19 would make parallel provision in respect of the transfer to the Electoral Commission of the functions of the Local Government Boundary Commission for Scotland and the Local Government Boundary Commission for Wales respectively.

13 NOVEMBER 2000


 
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