POLITICAL PARTIES, ELECTIONS AND REFERENDUMS
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.
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
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
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
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
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