Select Committee on Delegated Powers and Deregulation Second Report


PART II: ARRANGEMENTS WITH RESPECT TO EXECUTIVES

Introduction

OVERVIEW

64.  The delegated powers in this Part as introduced are, with two exceptions, to the same as those that appeared in Part I of the draft Local Government (Organisation and Standards) Bill, published as part of the document Local Leadership, Local Choice[21], and with the paper A Stronger Voice for Local People[22] in Wales. The draft Bill was submitted to the Committee for their consideration, and the Committee reported in July 1999[23]. The Committee concluded that there were no delegated powers in the draft Bill which they would need to draw to the attention of the House.

65.  There are a number of changes to the draft Bill which are either reflected in the Bill introduced to the House on 25 November or will be sought by the Government in Parliament which are designed to ensure that the Bill will more successfully deliver the policy as set out in Local Leadership, Local Choice. In the Government's view, few of these changes result in substantial differences in the nature or scope of the powers approved by the Committee in its report on the draft Bill.

66.  The only new delegated power in the Bill is clause 31 (Power to make incidental, consequential provision etc). In addition, as a result of lifting the constraint included in the draft Bill that an executive could not be greater than 15% of the membership of the council, the scope of the power in subsection 10(9) (Local authority executives) has been constrained to reducing the maximum size of the executive. These and all of the other delegated powers in Part II are described in detail below.

67.   However, there are a number of provisions in Part II of the Bill as introduced which the Government considers will require amendment in order to have the desired effect, or to properly implement the Government's policy. Some of these amendments will affect delegated powers in this part of the Bill. Where this is the case, full details have been given in the discussions below on each individual power. The amendments will affect the powers in clauses 11, 22, 23 and 31.

68.  The Government also proposes to table amendments creating two new enabling powers. Details of these are given at the end of the description of Part II powers below. The Government intends to table these amendments for consideration during Committee stage in the House of Lords. Additional information will be submitted to the Committee at that time.

69.  The provisions of Part II are dependent upon the use of secondary powers for a number of reasons. The body of legislation governing the workings of local government is very extensive and complex. The introduction of executive arrangements for councils will require considerable modification, amendment, and in some cases re-writing, of much of this legislation. This can only be done effectively through secondary legislation. Furthermore, the provisions of this Part have in-built flexibility (such as the power to introduce new forms of executive) and the mechanism for detailed implementation therefore needs to be able to adapt to such changes by allowing for further rules and amendments to legislation to be made.

Additional scrutiny by Electoral Commission

70.  Further scrutiny of regulations relating to the conduct of mayoral elections and referendums, and in relation to petitions, is envisaged once the proposed Electoral Commission is established. The Government proposed the creation of an Electoral Commission in its White Paper The Funding of Political Parties in the United Kingdom[24]. One of the functions of the Commission would be to keep electoral law under review, and the draft Bill accompanying the White Paper envisaged that there would be a duty to consult the Commission before making certain regulations governing the conduct of elections.

71.  The Government believes that a number of delegated powers in Part II of the Bill will be relevant to the functions of the proposed Electoral Commission. These are:

  • regulations made under clause 22 (Referendum following petition) about the form, manner of giving and verification of petitions, and the action to be taken by an authority before a referendum;
  • regulations made under clause 23 (Power of Secretary of State to require a referendum) in relation to the action to be taken by an authority before a referendum;
  • guidance issued under clause 24 (Guidance) in relation to the conduct of referendums and elections;
  • regulations made under clause 29 (Power to make provision about elections);
  • regulations made under subsections 30(3) and (4) (Provision with respect to referendums) about the conduct of referendums and the combination of polls; and
  • orders made under clause 32 (Power to modify enactments) which modify enactments relating to the conduct of elections or referendums.

72.  The Government proposes that, once the Commission has been established, and its functions in relation to changes in electoral law have been brought into effect, the Secretary of State should not make regulations under these powers without first having consulted the Commission. Furthermore, the Government believes that no regulations should be made under subparagraph 29(2)(c) (limitation of election expenses of candidates) other than upon, and in accordance with, a recommendation of the Commission (again, subject to the Commission's functions in this area being brought into effect). The Government will bring forward amendments to this effect once the Bill to establish the Commission has been introduced, as noted at relevant points in the memorandum below in respect of specific powers.

The Powers

CLAUSE 10: LOCAL AUTHORITY EXECUTIVES

Subsection 10(5): Power to prescribe new forms of executive

73.  Subsection 10(5) allows the Secretary of State to make regulations providing for additional forms of executive other than the three set out on the face of the Bill. Subsection 10(6) clarifies the scope of this power and provides that, in particular, regulations may include provision for the direct election of individual members of an executive other than the mayor, for the direct election of the entire executive, and about the system of voting to be used for such elections.

74.  This is an enabling power to allow any new forms of executive identified in future, as a result of local authorities working with new arrangements, to be made legally available to local authorities. There is no intention for this power to be used in the near future.

75.  Subsection 10(6) is considered necessary to ensure that the power is not constrained to forms of executive in which the only directly elected member is the mayor. In view of the fact that the Bill provides that directly elected mayors are elected by a system other than first past the post, the Government considers that the provision in subparagraph 10(6)(c) (system of voting) is necessary for the avoidance of doubt.

76.  In view of the wide-ranging implications of this power for the constitutions of local authorities, the Government's view is that the draft affirmative resolution procedure is appropriate to ensure the necessary degree of Parliamentary scrutiny.

SUBSECTION 10(9): POWER TO AMEND THE LIMIT ON THE SIZE OF THE EXECUTIVE

77.  Subsection 10(9) provides the Secretary of State with the power to lower the limit on the size of the executive.

78.  The purpose of having a separate executive is to increase the effectiveness and accountability of decision making. In order to achieve this, the Government believes that the size of the executive needs to be restricted. If it were unrestricted, there would be a danger that an authority could circumvent these purposes by, for example, declaring the full council or the whole of the ruling group as the executive. An upper limit on the size of the executive is therefore placed on the face of the Bill (ten councillors).

79.  The regulation-making powers in subsection 10(9) will allow the Secretary of State to lower the limit of ten councillors. This is an enabling power which will be used where there is a change of policy or where experience showed that present restrictions on the size of the executive were not fully delivering the policy objective. Due to the limited technical and administrative nature of the amendment, any regulations under this power would be subject to the negative resolution procedure.

CLAUSE 11: EXECUTIVE FUNCTIONS

SUBSECTION 11(1): POWER TO SPECIFY FUNCTIONS WHICH MUST (OR MAY) NOT BE EXECUTIVE FUNCTIONS

80.  As in the draft Bill, subsection 11(1) provides the Secretary of State with the power to make regulations to specify local authority functions which:

  • are not to be the subject of executive arrangements (subparagraph 11(1)(a)); and
  • may (but need not) be included in executive arrangements (subparagraph 11(1)(b)).

Subsection 11(2) defines executive functions as any function not specified under subsection 11(1) and functions specified under subparagraph 11(1)(b) which the authority include in their executive arrangements. Therefore the presumption is that all functions are to be included in executive arrangements unless they are specified by the Secretary of State.

81.  The Government's policy (paragraph 3.10 of Local Leadership, Local Choice) is that regulatory and licensing functions, such as the granting or refusing of planning permission, should not be executive functions. These functions will be specified in regulations under subparagraph 11(1)(a).

82.  One example of a type of function which could be specified under subparagraph 11(1)(b) is functions conferred on local authorities by local Acts. Such functions are many in number and specific to a single authority (or a group of authorities). There are, in some cases, special local arrangements for the discharge of local Act functions; for example, s.25 of the Plymouth City Council Act 1987 gives the "Cottonian Representatives" a right to be co-opted as voting members onto the sub-committee of the council which takes decisions regarding the management of the Cottonian collection in a local museum. Given the local nature of local Act functions the Government believes it should be left to the authorities in question to decide whether such functions should be executive functions or not.

83.  Given the very large number of functions involved (for example, there are over 40 local authority licensing functions) and that local authority powers and duties change frequently, the Government takes the view that regulations are appropriate for these provisions. In view of the largely administrative and technical nature of the provisions the Government takes the view that the negative resolution procedure provides the most appropriate form of Parliamentary scrutiny.

AMENDMENT FOR FUNCTIONS TO BE DISCHARGED IN FULL COUNCIL

84.  The Government will bring forward an amendment to the enabling powers in subsection 11(1) to include an additional power for the Secretary of State to specify, in regulations, functions which must be discharged only by the full council in authorities operating executive arrangements.

85.  Functions specified in regulations made under that power will be subject to a general provision that for functions required to be exercised by the full council the following activities may be the responsibility of the executive:

  • the taking of any steps preparatory to the discharge of the function;
  • the doing of anything incidental or conducive to the discharge of the function; and
  • the doing of anything expedient in connection with the discharge of the function or any step preparatory to the discharge of the function.

86.  The intention behind this proposed amendment is to give effect to the policy described in paragraphs 3.9 and 3.32 to 3.34 and figure 12 of Local Leadership, Local Choice on the policy process under executive arrangements. In summary, the Government's policy is that the executive will take its decisions within a broad, strategic policy framework agreed by the full council. The policy framework will be defined as the council's key plans and strategies. The new power will, therefore, be used to specify the key local authority plans and strategies that must be agreed by the full council. The Government envisages that following plans will be included in those specified under the proposed power:

  • Best Value Performance Plan
  • Children's Services Plan
  • Community Care Plan
  • Community Strategy
  • Crime and Disorder Reduction Strategy
  • Development Plan
  • Early Years Development and Childcare Plan
  • Education Development Plan
  • Health Improvement Programme
  • Local Transport Plan
  • Youth Justice Plan

87.  The Government will also bring forward an amendment to ensure that a council's executive arrangements can allow the executive to prepare drafts of these plans and strategies to propose to the full council for agreement.

88.  The Government considers this to be an appropriate use of secondary legislation because the statutory provisions change relatively frequently. Without such a secondary power these changes would require frequent amendment of this Act.

89.  The Government intends that drafts of the proposed regulations to be made under clause 11, including under the proposed additional power, will be made available for Lords Committee stage of the Bill.

SUBSECTION 11(3): POWER TO SPECIFY CIRCUMSTANCES IN WHICH EXECUTIVE FUNCTIONS MUST BE DISCHARGED BY THE AUTHORITY

90.  The power in subsection 11(3) is as published in the draft Bill. It provides the Secretary of State with the power to require executive functions (as defined in subsection 11(2)) to be discharged by the full authority in circumstances set out in regulations.

91.  The purpose of this power is to allow the Secretary of State to restrict the executive's freedom to take decisions which, for example, are not in accordance with the budget agreed by the full council. (The full council is required to agree an authority's budget under s.67 of the Local Government Finance Act 1992.) An example of a circumstance in which executive functions may be required to be discharged by the full authority is when the executive is minded to determine a matter in a manner contrary to an authority's budget agreed by the full council.

92.  In view of the largely administrative nature of the provisions the Government takes the view that the negative resolution procedure provides the most appropriate form of Parliamentary scrutiny.

CLAUSE 15: OVERVIEW AND SCRUTINY COMMITTEES

SUBSECTION 15(5): POWER TO REGULATE THE OPERATION AND FUNCTIONS OF OVERVIEW AND SCRUTINY COMMITTEES

93.  Subsection 15(5) provides the Secretary of State with a power to make regulations governing the operation and functions of overview and scrutiny committees. The purpose of this power is to allow greater detail to be spelt out about how overview and scrutiny committees should work.

94.  Overview and scrutiny committees are a vital component of the new arrangements. They will be responsible for holding the executive to account in public and will be able to carry out policy reviews and make reports and recommendations to the executive.

95.  Regulations made under this power might set out how these committees should be constituted and operate and what their remit could be. For example, they could ensure that overview and scrutiny committees are chaired by a member of the opposition where there is one; or ensure that concerns of minority groups are properly addressed in overview and scrutiny committees.

96.  Any regulations made under this power would be by negative resolution due to their detailed technical and administrative nature.

CLAUSE 22: REFERENDUM FOLLOWING PETITION

SUBSECTION 22(1) TO (4): POWER TO MAKE REGULATIONS REQUIRING A LOCAL AUTHORITY WHICH RECEIVES A PETITION TO HOLD A REFERENDUM

97.  Subsection 22(1) to (4) provides the Secretary of State with the power to require local authorities to hold a referendum when they receive a petition, signed by at least 5% of the local electorate, requesting a directly elected mayor in either of the forms of executive in subsections 10(2) or 10(4). Subsection 22(2) enables provision to be made in the regulations as to the form of the petition, the manner in which it is to be given to the authority, verification of the petition, the timing of the referendum following the petition and the action to be taken by a local authority before and after the referendum. Subsection 22(3) provides that provision on the action required to be taken by a local authority before a referendum may include provision with respect to the drawing up of proposals for the operation of executive arrangements. Subsection 22(4) provides that provision on the action to be taken by a local authority after a referendum may include provision with respect to the implementation or non-implementation of those proposals.

98.  The purpose of this power is to require local authorities to hold a referendum for a directly elected mayor where they receive a valid petition signed by at least 5% of the electorate of their area. It also allows the Secretary of State to specify the technical details of the petitioning process and the process leading up to a referendum following a petition.

99.  The Government considers this to be appropriate for regulations because of the detailed and complex nature of the provisions necessary to properly define the petitioning process and the process leading up to a referendum following a petition.

100.  For example, the regulations could include provision:

  • for the form of the proposition in a valid petition;
  • that each signature must be accompanied by the full name and address of the signatory and the date they signed the petition;
  • that the petition can be delivered to any office of the authority by post or by hand;
  • that for the purposes of verification a signature can be disregarded if it is not accompanied by the full name and address of the signatory and the date they signed the petition or if this information is not legible;
  • that a referendum must be held within, say, six months of receiving a petition;
  • that the authority must draw up proposals for executive arrangements based on the proposition in the petition, consult local people on the proposals and send them to the Secretary of State;
  • that a second or subsequent petition received after an earlier valid petition is to be disregarded;
  • that a petition received after a referendum has taken place shall be disregarded unless it is received no more than twelve months prior to the next possible date of a referendum.

101.  In view of the administrative and complex nature of the provisions the Government takes the view that the negative resolution procedure provides the most appropriate form of Parliamentary scrutiny.

102.  The Government intends that drafts of the proposed regulations to be made under clause 22, including under the proposed amended power, will be made available for Lords Committee stage of the Bill.

AMENDMENTS IN RELATION TO ELECTORAL COMMISSION

103.  Regulations made under this clause concerning the form, manner of giving and verification of petitions, and the action to be taken by an authority before a referendum, will be relevant to the proposed Electoral Commission and subject to the arrangements described at paragraph 72 above. The Government will bring forward an amendment to this effect once the Bill to establish the Commission has been introduced.

AMENDMENT ON REFERENDUMS WHEN PETITIONED BY LOCAL ELECTORS

104.  The Government will also bring forward an amendment to the enabling power in subsection 22(1) to enable the Secretary of State, by regulations, to require a local authority which receives a petition signed by at least 5% of the local government electors for the local authority's area and requesting:

  • a directly elected mayor, or a referendum on a directly elected mayor, in an unspecified form of executive; or
  • a directly elected mayor, or a referendum on a directly elected mayor, in a specified form of executive which is one of those defined in or under the Bill,

to hold a referendum in such circumstances as may be prescribed in the regulations.

105.  The intention behind this proposed amendment is to allow maximum flexibility in the form of proposition put in a petition. Where the petition requests a directly elected mayor, or a referendum on whether to have a directly elected mayor, in an unspecified form of executive, the authority (in consultation with the community) will have the choice of which form of executive should form the basis of the proposals to be the subject of the referendum. Where the petition requests a directly elected mayor, or a referendum on a directly elected mayor, in a specified form of executive then the authority will have to bring forward proposals based on the form of executive requested by the petition.

106.  The Government also intends to bring forward an amendment that regulations made under this clause will be able to include provision in respect of the method by which the 5% threshold is to be calculated and promulgated. The Government considers that it will be important for petition organisers to know what threshold will apply to their petition. A regulation-making power is sought so that the method of calculation can be easily amended, if necessary, to reflect changes in the system of electoral registration as a result of the provisions in the Representation of the People Bill.

AMENDMENT ON ACCEPTABLE FORMS OF PETITIONS

107.  In addition, the Government will bring forward an amendment which enables the regulations under clause 22 to specify a form of petition which does not involve a paper-based petition with hand-written signatures. The intention behind this proposed amendment is to enable the Secretary of State to define a form of petition which is based on, for example:

  • telephone 'voting'; or
  • electronic signatures.

This is consistent with the Government's proposals to pilot schemes for elections and referendums which involve such methods, under clause 10 of the Representation of the People Bill (introduced into the House of Commons on 18 November 1999).

108.  The Government appreciates that electronic or telephone signatures present additional technical complications to electronic or telephone voting. It will be essential to ensure that the appropriate technology is available before allowing petitions to be collected by these methods. Therefore, the Government does not, in the short term, intend to make regulations allowing petitions to be collected in this way but wishes to have the flexibility to do so when the technology becomes available.

SUBSECTION 22(5): POWER TO AMEND THE PETITION THRESHOLD

109.  Subsection 22(5), as published in the draft Bill, provides the Secretary of State with a power to make regulations amending the threshold for a valid petition from 5% of the local electorate (as it is in subparagraph 22(1)(a)).

110.  The Government considers that this provision is necessary to ensure that the threshold can be amended if it proves to be too high or too low a hurdle for petitioners to reach; for example, if it appears that the threshold has been set too high and very few, or no, valid petitions are coming forward.

111.  In view of the minor nature of the amendment which can be made using this provision, the Government takes the view that the negative resolution procedure provides the most appropriate form of Parliamentary scrutiny.

CLAUSE 23: POWER TO REQUIRE A REFERENDUM

112.  Clause 23 provides the Secretary of State with a power to require a named authority, in circumstances set out in regulations, to hold a referendum on any of the forms of executive specified in or under the Bill. Subsection 23(2) provides that these regulations may include provision as to the timing of referendums required in the regulations and the action to be taken by a local authority before and after such a referendum. Subsection 23(3) provides that provision on the action required to be taken by a local authority before a referendum may include provision with respect to the drawing up of proposals for the operation of executive arrangements. Subsection 23(4) provides that provision on the action to be taken by a local authority after a referendum may include provision with respect to the implementation or non-implementation of those proposals.

113.  The purpose of this power is for the Secretary of State to be able to make detailed provision about the circumstances in which he may require an authority to hold a referendum, when that referendum should take place and what an authority must do before and after such a referendum.

114.  The Government considers this provision necessary because there are a number of authorities which oppose the proposed new forms of constitution and therefore may be dilatory or obstructive in implementing them. Other authorities may request the Secretary of State to assist them where, for example, they have received multiple petitions. Therefore, the Government believes that it may be necessary to require certain authorities to take action to draw up acceptable proposals for new forms of executive, or to help authorities who, for example, receive multiple petitions. It is only possible to intervene in this selective way using delegated powers.

115.  The Government believes that, where an authority is required to hold a referendum, it should be the authority which draws up the proposals to be the subject of that referendum in consultation with local people, other public bodies, business and the voluntary sector.

116.  Examples of circumstances in which the Secretary of State may wish to require a referendum could be:

  • where an authority has requested such an intervention (e.g. if they have received multiple petitions);
  • where a petition organiser has requested such an intervention (e.g. if the authority has refused to act on the petition);
  • where an authority will not draw up proposals for a new constitution;
  • where an authority has not consulted appropriately on its proposals;
  • where the timetable for implementation of an authority's proposals is inordinately long; or
  • where, in the Secretary of State's opinion, an authority's proposals are not in accordance with the principles of efficiency, transparency and accountability which underpin the legislation.

117.  In these circumstances the Secretary of State may require an authority to draw up proposals for a specified form of constitution in consultation with local people; to hold a referendum on those proposals within, say, six months; and, if the referendum approves the proposals, to implement those proposals in accordance with the timetable they include.

118.  This power is necessarily selective. However, it is constrained by the circumstances set out in the regulations. The provisions on timing of referendums and action to be taken before and after a referendum will have general, rather than selective, effect. In view of the largely administrative and technical nature of the provisions, the Government takes the view that the negative resolution procedure provides the most appropriate form of Parliamentary scrutiny.

AMENDMENT IN RELATION TO ELECTORAL COMMISSION

119.  Regulations made under this clause concerning the action to be taken by an authority before a referendum may be relevant to the proposed Electoral Commission and subject to the arrangements described at paragraph 72 above. The Government will bring forward an amendment to this effect once the Bill to establish the Commission has been introduced.

CLARIFYING AMENDMENT

120.  The Government intends to bring forward an amendment to the enabling power in clause 23. The enabling power in the introduction print of the Bill does not elaborate on how the Secretary of State is to require an authority to hold a referendum. The amendment will, therefore, be to allow the Secretary of State, in circumstances specified in regulations, to direct an individual authority to hold a referendum on any of the forms of executive specified in or under the Bill. Subsections 23(2) to (4) will be substantively unchanged.

121.  The Government considers that directions are the most appropriate way of requiring referendums, because such an action is necessarily specific to an individual authority. The power to direct an authority to hold a referendum will be constrained in the circumstances set out in the regulations and the provisions on timing of referendums, and action to be taken before and after a referendum will continue to be made in regulations and have general, rather than selective, effect.

122.  The Government intends that drafts of the proposed regulations to be made under proposed amended clause 23 will be made available for Lords Committee stage of the Bill.

AMENDMENT ON REQUIREMENT OF REFERENDUM ON EXECUTIVE ARRANGEMENTS

123.  The Government will also bring forward a further amendment to include a new enabling power in the Bill which will allow the Secretary of State to make an order to require all authorities, or authorities of a description or class specified in the order, to hold a referendum on any form of executive defined in or under the Bill (as specified in the order).

124.  The same order will also to be able to require, in the event that the referendum rejects the proposals, the authorities to whom the order applies to draw up, consult on and implement proposals for a different form of executive which does not include a directly elected mayor (as specified in the order).

125.  In paragraph 2.23 of the Government's response to the Joint Committee report[25], the Government stated that it:

"recognises that it might also be appropriate for local people in a number of council areas to be able in a co-ordinated way to express through referendums their support for a form of new constitution for their councils."

126.  The new power proposed above is intended to be the instrument by which the Government can implement such a policy. Unlike the power to make directions, the proposed order-making power will not be constrained by circumstances. Similar provision to that in subsections 23(2) to (4) will also apply to the proposed order-making power. Given the wider nature of the proposed power, the Government considers that an order-making power, subject to the negative resolution procedure, is the most appropriate form of Parliamentary scrutiny.

CLAUSE 24: POWER TO ISSUE STATUTORY GUIDANCE

127.  Clause 24 provides a power for the Secretary of State to issue statutory guidance—to which local authorities must have regard—to underpin Part II of the Bill. Subsection 24(2) provides that the guidance may include particular provision with respect to the time within which proposals must be drawn-up and implemented, the availability of public information about executive arrangements and the operation and functions of overview and scrutiny committees. Subsection 24(3) enables differing guidance to be issued for different cases or descriptions of authority.

128.  The Government considers this provision to be necessary because many detailed aspects of the new executive arrangements are complex; do not readily lend themselves to legislation; or are to be voluntary rather than mandatory.

129.  For example, the Government will provide guidance on procedures—similar to the example set out in paragraph 3.66 to 3.71 of Local Leadership, Local Choice—for resolving disputes between the executive (in particular, a directly elected mayor) and the council. However, the Government believes that the details of such mechanisms should be a matter for local choice. The Government therefore wishes to set out some of these options in statutory guidance, leaving it for authorities to decide a mechanism which best suits local circumstances.

AMENDMENT IN RELATION TO ELECTORAL COMMISSION

130.  Guidance concerning the conduct of elections and referendums will be relevant to the proposed Electoral Commission and subject to the arrangements described at paragraph 72 above. The Government will bring forward an amendment to this effect once the Bill to establish the Commission has been introduced.

CLAUSE 26: POWER TO PROVIDE FOR THE TIMING OF MAYORAL ELECTIONS

131.  Clause 26 was included in the draft Bill. It provides the Secretary of State with a power to make regulations governing the timing of elections for directly elected mayors. This power allows for regulations to provide for the dates and years in which elections take place, the interval between elections, the term of office of elected mayors, and in relation to the filling of vacancies. Subsection 26(2) provides that local authorities' executive arrangements must comply with these regulations.

132.  The purpose of this power is to allow the Secretary of State to make detailed provision for determining the years in which mayoral elections should take place in particular circumstances. It will also allow the Secretary of State to provide for terms of office (and intervals between elections) which are shorter or longer that the normal term of office of four years specified in subsection 25(2).

133.  The Government considers that this provision will be necessary because of the potentially wide range of circumstances that will prevail amongst local authorities wishing to introduce a directly elected mayor. Relevant circumstances will include the type of local authority (e.g. whether unitary or two-tier), the pattern of elections currently in place (e.g. 'all out' elections, or elections by thirds), the years in which the normal election of councillors takes place, the year in which an authority decides to introduce an elected mayor, and the relative phasing of the electoral cycles. All of these factors will affect the options for the timing of mayoral elections, the timing of the first such election, and the possible need for initial terms of office which differ in length from the normal term of office as a transitional measure.

134.  For example, a London borough council might wish to opt for its first mayoral election in 2001 (not a usual year of elections for London borough councils), but thereafter to hold mayoral elections at four-yearly intervals in the same year as council elections (i.e. 2002, 2006 etc). In order to avoid the first mayor having to seek re-election after just one year in office (or, alternatively, waiting an extra year before electing the first mayor), regulations made under this power could provide for the initial term of office to be five years in these circumstances.

135.  Given the potential permutations, these provisions are likely to be complex, and the Government believes that secondary legislation is the best means of implementing them. Regulations will provide a more effective vehicle for setting out all the possible combinations, together with their transitional arrangements, rather than attempting to cover them on the face of the Bill. This route will also enable further regulations to be made in the future should any set of circumstances arise that were not originally envisaged. In particular, this may be necessary where orders made under clauses 58 (Power to specify a scheme for elections) or 59 (Power to change years in which elections are held) alter the frequency or timing of local electoral cycles.

136.  In view of the largely transitional and administrative nature of the provisions which may be introduced under this power, the Government takes the view that the negative resolution procedure provides the most appropriate form of Parliamentary scrutiny.

CLAUSE 29: POWER TO REGULATE THE CONDUCT OF ELECTIONS

137.  This clause is as published in the draft Bill, and gives the Secretary of State a power to make regulations to govern the conduct of mayoral elections and the questioning of such elections. The power includes a power to make regulations in relation to the registration of electors, the disregarding of alterations in the register, the limitation of candidates expenses, and the combination of mayoral elections with other elections. Regulations under this clause may apply or incorporate (with or without modifications or exceptions) provisions in, or made under, the Representation of the People Acts and any other enactment relating to elections. They may also modify any relevant forms made under such legislation and make consequential amendments to provisions relating to the registration of electors.

138.  The purpose of this power is to enable the provision of a detailed regulatory regime for the conduct of mayoral elections which is consistent and compatible with the legislation currently in place under the Representation of the People Acts etc for the conduct of local elections.

139.  The use of delegated powers to establish procedures for elections is not uncommon, and the Government believes that this is the most appropriate means of achieving a satisfactory regime. Given their nature, the Government believes that the draft affirmative resolution procedure is appropriate for these provisions. This is consistent with the procedure for making regulations under the Representation of the People Acts.

140.  This clause is excluded from the scope of subsection 70(1), and this power is therefore not exercisable by the National Assembly in relation to Wales. This is because the conduct of local elections is not a devolved matter in Wales.

AMENDMENTS IN RELATION TO ELECTORAL COMMISSION

141.  Regulations governing the conduct of mayoral elections will be relevant to the functions of the proposed Electoral Commission and subject to the arrangements described at paragraph 72 above. Furthermore, once the Commission is established and has taken up the appropriate powers, the Government believes that no regulation should be made under subparagraph 29(2)(c) (limitation of election expenses of candidates) other than upon, and in accordance with, a recommendation of the Commission. The Government will bring forward amendments to this effect once the Bill to establish the Commission has been introduced.

CLAUSE 30: PROVISIONS WITH RESPECT TO REFERENDUMS

142.  This clause is as published in the draft Bill except for the deletion of the reference to registered political parties from subparagraph 30(6)(c).

SUBSECTION 30(3): POWER TO REGULATE THE CONDUCT OF REFERENDUMS

143.  Subsection 30(3) gives the Secretary of State a power to make regulations to govern the conduct of referendums held under Part II of the Bill. Regulations may include provisions relating to the question to be asked in referendums, publicity, the conduct of members and officers of the authority, and the disregarding of alterations to the electoral register. They may also provide for referendums to take place other than by way of a poll. Regulations under this clause may apply or incorporate (with or without modifications or exceptions) provisions in, or made under, any enactment relating to elections.

144.  The purpose of this power is to enable the provision of a detailed regulatory regime for the conduct of referendums on the question of a directly elected mayor which is consistent and compatible with current electoral law. It is also necessary in order for the Secretary of State to make detailed provision governing the activities of local councils in the preparation, and conduct of, referendums. This will include how the referendum question is drafted and what publicity activity a local authority may (or may not) engage in during the run-up to a referendum.

145.  As with the power to regulate the conduct of mayoral elections in clause 29, the Government believes that secondary legislation provides the most appropriate means of achieving a satisfactory regime. Similarly, given the purpose of these provisions, the Government believes that the draft affirmative resolution procedure is appropriate.

AMENDMENT IN RELATION TO ELECTORAL COMMISSION

146.  These regulations will also be relevant to the proposed Electoral Commission and subject to the arrangements described at paragraph 72 above. The Government will bring forward an amendment to this effect once the Bill to establish the Commission has been introduced.

SUBSECTION 30(4): POWER TO PROVIDE FOR THE COMBINATION OF POLLS

147.  Subsection 30(4) gives the Secretary of State a power to make regulations to provide for the combination a referendum with polls for other elections. Regulations may apply or incorporate (with or without modifications or exceptions) provisions in, or made under, any enactment relating to elections.

148.  The purpose of this power is to enable referendums on the question of a directly elected mayor to be combined with polls for other elections which may be taking place at the same time. This is necessary in order to avoid having to make separate provision (e.g. polling stations etc) for each referendum and election.

149.  The use of delegated powers to provide for the combination of polls is quite common, and the Government believes that this is an appropriate use of secondary legislation. Given that these provisions impact on the conduct of elections and referendums, the Government believes that the draft affirmative resolution procedure is appropriate.

CLAUSE 31: POWER TO MAKE FURTHER PROVISION AND CLAUSE 32: POWER TO MODIFY ENACTMENTS

150.  Clause 31 provides the Secretary of State with a power to make such incidental, transitional, consequential or supplemental provision as he considers necessary or expedient to give full effect to any provision in or under Part II. By virtue of clause 69, this includes a power to make modifications to enactments which are no more than necessary to give full effect to secondary legislation made under Part II.

151.  Clause 32 provides the Secretary of State with the power to make modifications to enactments which are no more than necessary to give full effect to any provisions of Part II. Subsection 32(2) provides that this power is a power to:

  • apply enactments with or without modifications;
  • to extend, exclude or amend enactments; and
  • to repeal or revoke enactments with or without savings.

152.  Subsection 32(3) provides that for the purposes of clause 32, enactments include local Acts and subordinate legislation.

153.  The effects of Part II on other enactments are wide-ranging and complex. For example, there are very many references to 'mayors' and 'committees' in other legislation. Some of these references will need to be applied to provisions in or under Part II, others will need amending, others repealing or revoking, others extending, others excluding and others will remain unchanged.

154.  In particular, secondary legislation under the Part II will require application, amendment etc of other enactments, not least if further forms of executive are added using the powers in subsection 10(5). It will not be possible to make such provision in primary legislation as it will depend on the provisions in the secondary legislation. Therefore the Government believes that these powers are necessary.

155.  The power in clause 31 is constrained to incidental, transitional, consequential or supplemental provision which is, by virtue of clause 69, no more than necessary to give full effect to regulations or orders made under Part II. The Government believes that the negative resolution procedure is appropriate for this purpose.

156.  The power in clause 32 is tightly constrained by the provision that modifications to enactments must be no more than necessary to give full effect to any provisions of Part II of the Bill. Nevertheless, in view of the fact that this is a provision to enable amendment of primary legislation, the Government takes the view that the draft affirmative resolution procedure provides the most appropriate form of Parliamentary scrutiny.

Amendment in relation to Electoral Commission

157.  Orders made under clause 32 which modify enactments relating to the conduct of elections and referendums will be relevant to the proposed Electoral Commission and subject to the arrangements described at paragraph 72 above.The Government will bring forward an amendment to this effect once the Bill to establish the Commission has been introduced.

New enabling powers

AREA COMMITTEES

158.  Paragraph 2.12 of the Government's response to the Joint Committee report on the draft Local Government (Organisation and Standards) Bill agreed with the Joint Committee's recommendation that the draft Bill should be capable of accommodating decision-making area committees and joint area committees. The response said:

"The Government, therefore, intends that legislation should allow the delegation of executive functions by the executive to area committees within the context of a systematic scheme of delegations and clear limits to those delegations in terms of functions and budgets. This would ensure that there remains a clear corporate accountability for executive functions."

159.  The Government will bring forward amendments to allow such delegations. This will include a reserve power for the Secretary of State to make regulations (subject to the negative resolution procedure) to set limits on the delegation of functions to area committees including joint area committees. Such limitations might be in terms of budgets or functions or a combination of both. For example, the regulations might provide that only a specified percentage of the executive's budget in respect of a specified function may be delegated to area committees. The power will enable different provision to be made for different classes or descriptions of authority.

160.  The Government is clear that the new forms of executive defined in the Bill will only have the effect of providing transparent, efficient, accountable and identifiable leadership for a council and the community it serves if the executive takes the majority of the authority's decisions. Therefore, the Government believes that extensive delegation to area committees would undermine the principles of enhanced efficiency, transparency and accountability which underpin the proposals in the Bill.

161.  However, the Government believes that in practice, authorities will limit delegations to area committees to matters of specific local interest which do not affect other areas or the key strategies of the authority. The Government does not, therefore, intend to use this proposed new enabling power but considers it a necessary reserve power in case of abuse of the proposed power for the executive to delegate to area committees.

Deadline for bringing forward proposals

162.  The Government will bring forward an amendment to the Bill to enable the Secretary of State to set a deadline by which all authorities must have brought forward proposals for a new form of executive and to set a deadline by which those proposals must have been implemented (subject to the outcome of referendums).

163.  The Government believes that local authorities should determine for themselves the pace of change in their area and, in particular, the detail of the consultation process required under subsection 18(3). However, the Government is strongly of the view that the new forms of executive have significant and compelling advantages over the existing committee system and that authorities should move as quickly as local circumstances allow to implement change. Therefore, this is a reserve power, which the Government does not intend to use unless it becomes clear that a significant number of authorities are being dilatory in, or refusing to, bring forward proposals for a new form executive.


21   Cm 4298, March 1999. Back

22   Welsh Office, March 1999. Back

23   Twenty-third Report, HL Paper 86. Back

24   Cm 4413, July 1999. Back

25   Cm 4529, December 1999. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999