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Regional Assemblies (Preparations) Bill


 

These notes refer to the Regional Assemblies (Preparations) Bill
as brought from the House of Commons on 27th January 2003 [HL Bill 25]

REGIONAL ASSEMBLIES (PREPARATIONS) BILL

     


     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Regional Assemblies (Preparations) Bill as brought from the House of Commons on 27th January 2003. They have been prepared by the Office of the Deputy Prime Minister in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The Bill extends only to England and Wales.

4.     This Bill will provide the Secretary of State with powers to order referendums to be held in any of the eight English regions outside London. It will also require him to direct the Boundary Committee for England ("the Boundary Committee") to conduct a review of the structure of local government in a region before a referendum takes place. In carrying out a review the Boundary Committee must recommend what structural change to the existing two-tier local authorities is most appropriate in order to produce a wholly unitary local government structure in the region. The Bill will also require the Secretary of State to seek the Electoral Commission's advice on such matters as the electoral areas for regional assemblies following referendums. And it creates a new power for funding the existing regional chambers.

5.     This Bill is the first step towards implementing the proposals in the White Paper Your Region, Your Choice: Revitalising the English Regions ("the White Paper"), which was published on 9th May 2002 and set out how the Government proposes to deliver the Labour Party's 2001 manifesto commitment that:

"provision should be made for directly elected regional government to go ahead in regions where people decided in a referendum to support it and where predominantly unitary local government is established."BACKGROUND

6.     It is proposed in the White Paper to enable elected regional assemblies to be established in regions (outside London) where the inhabitants vote for one in a referendum. The decision on where a referendum will be held will be largely based on whether the Secretary of State considers that there is sufficient public interest in a region in holding one. So it may be that referendums are not held in all eight regions at one time. Indeed, it may be that in the first instance only one, two or three are held.

7.     It is proposed in the White Paper that, before a referendum on an elected assembly is to be held in a region, the Boundary Committee will first conduct a review of local government in that region. In areas that currently have a county and district council, a regional assembly would add a third tier of elected government below the national level, increasing the layers of government. Under the Bill a review would consider what structural change to the existing two-tier local authorities is most appropriate to produce a wholly unitary local government structure in the region. There would be no change to the boundaries of existing unitary authorities.

8.     Between 1974 and 1986 a two-tier system of local government operated throughout the United Kingdom. Under a two-tier system, county councils are responsible for social services, strategic planning, education, refuse disposal, traffic, highways, libraries, fire and consumer protection. District councils are responsible for local planning, housing, leisure services and parks, markets and fairs, cemeteries and crematoria, tourism, electoral registration, environmental health and refuse collection.

9.     In 1986, the Greater London Council and the six metropolitan county councils were abolished. Since then the London boroughs (in the capital) and metropolitan districts (in the six major conurbations of Tyne & Wear, West Yorkshire, South Yorkshire, Greater Manchester, Merseyside and the West Midlands) have formed a unitary tier of local government.

10.     In the early 1990s the Local Government Commission for England looked at the case for replacing the two-tier structure of local government with a unitary structure in the rest of England. As a result, a mixed system was established whereby some urban areas moved away from the two-tier system to a unitary structure, with one body being responsible for all the local government functions previously carried out by district and county councils, and other areas remaining under the two-tier system. Around the same time, following public consultation in Scotland and an independent review in Wales, a unitary system was introduced in those nations.

1.     Other relevant legislation

11.     The Local Government Act 1992 ("the 1992 Act") and the Political Parties, Elections and Referendums Act 2000 ("the PPER Act") are both relevant for the purposes of this Bill and this Bill should be read alongside these Acts.

12.     The 1992 Act established the Local Government Commission for England to carry out reviews of local government structure, boundaries and electoral areas in England and to recommend changes, when so directed by the Secretary of State. In April 2002 these functions of the Local Government Commission for England were transferred, with some modifications, to the Electoral Commission by the Local Government Commission for England (Transfer of Functions) Order 2001 (SI 2001/3962). A number of the Secretary of State's powers were also transferred to the Electoral Commission, including the responsibility for initiating electoral reviews. Structural, boundary and electoral reviews are now undertaken by the Boundary Committee under direction from the Electoral Commission. Many of the provisions in the 1992 Act are relevant to the local government reviews that will be carried out by the Boundary Committee under this Bill.

13.     The PPER Act established the Electoral Commission (as well as the Boundary Committee). Among other things, the PPER Act sets out the legal framework within which national and regional referendums will be held in future (see Part 7 of that Act). These provisions will apply to referendums under this Bill. The key provisions are—

  • the Electoral Commission will be required to publish a statement of its views as to the intelligibility of the referendum question (section 104(2));

  • the Commission will be responsible for appointing the Chief Counting Officer for the referendum, who will then appoint counting officers for local authority areas in the region (section 128). These officers will be responsible for conducting the referendum;

?     'permitted participants' (political parties, campaign groups and other similar bodies) in the referendum must be registered with the Electoral Commission. The Commission will be able to decide to designate a group to represent the 'yes' campaign and a group to represent the 'no' campaign at any referendum. If it does so, these groups will be entitled to financial support and other assistance (such as the distribution of a 'referendum address' free of charge and the use of rooms free of charge for public meetings) (see sections 108 to 110 and Schedule 12);

  • the Secretary of State may, after consulting the Electoral Commission, make an order capping the amount that a permitted participant in a referendum can spend (see section 118 and paragraph 2 of Schedule 14);

  • expenditure by other bodies and individuals at a referendum will also be regulated (see Chapter II of Part 7);

  • there will be statutory stages in the run-up to a referendum vote, including a period for permitted participants to register with the Commission;

?     there will be restrictions on the promotional material which central and local government can issue in the 28-day period before the referendum date (see section 125).

14.     The eight English regions (outside London) to which this Bill applies are those specified in Schedule 1 to the Regional Development Agencies Act 1998 ("the RDA Act"). They are the North West, North East, Yorkshire and the Humber, East Midlands, East of England, West Midlands, South East and South West. The Government Offices for the regions (created in 1994) and other parts of central government also operate to these boundaries.

Regional chambers

15.     Regional chambers (designated under section 8(1) of the RDA Act) contribute to the regional economic strategies produced by the Regional Development Agencies and scrutinise their delivery. In most regions they also advise the Secretary of State on the content of regional planning guidance prepared by him under section 31(6) of the Town and Country Planning Act 1990. The intention of Ministers, as stated in the White Paper, is that all eight regional chambers should carry out this role, in the absence of an elected regional assembly. Where an elected regional assembly is established, the assembly will carry out this function. A new power is required so that the Government can make arrangements for funding the regional planning activities of the chambers.

OVERVIEW

16.     This Bill makes provision—

?     for the Secretary of State to order referendums on establishing elected regional assemblies to be held in any of the English regions outside London, including conditions to be satisfied before the making of such an order. It also provides for the referendum question, who is entitled to vote and the frequency of any subsequent referendum in a region following a 'no' vote (Part 1);

?     for the Secretary of State (as one of the conditions to the making of an order for the holding of a referendum) to direct the Boundary Committee to carry out a local government review in any of the English regions outside London to consider what structural change to the existing two-tier local authorities is most appropriate. The structural change should lead to a wholly unitary local government structure in the region. The criteria for deciding in which regions reviews should be carried out, the procedure for the reviews and the implementation of the Boundary Committee's recommendations are also provided for (Part 2);

?     requiring the Secretary of State (once certain preconditions have been satisfied) to seek the Electoral Commission's advice on one or more matters relating to the electoral areas for, or the total number of members of, an assembly (Part 3);

  • creating a new power for funding the activities of existing regional chambers (Part 4);

  • authorising expenditure relating to the matters referred to above and the preparatory work to be undertaken in connection with regional assemblies (Part 5).

Territorial application: Wales

17.     This Bill concerns only the English regions (excluding London). It does not affect the functions of the National Assembly for Wales.

COMMENTARY ON CLAUSES

Part 1: Referendums

Clause 1: Referendums

18.     Clause 1 gives the Secretary of State the power to order a referendum to be held in a region on the establishment of a regional assembly there. Such an order must specify the date of the referendum.

19.     Two preconditions need to be satisfied before the Secretary of State can make an order for a referendum. The first precondition is that he must consider the level of interest in the region in holding a referendum (subsection (4)). Subsection (6) provides that this precondition is deemed to be satisfied if a number of requirements are met. First, the Secretary of State must make the order for a referendum within two years of directing the Boundary Committee to carry out a local government review of the relevant region. Secondly, he must have considered the level of interest in the region in the holding of a referendum for the purposes of giving a direction under clause 12. Finally, he should have no reason to think that the level of interest in the holding of a referendum in the region has changed materially since giving the direction.

20.     What constitutes a material change is defined in subsection (7). In effect, the Secretary of State is required to cast himself back to the time when he gave a direction to the Boundary Committee in relation to the region. He must then ask himself whether he would have given that direction if the level of interest which he thinks exists now (when he is considering making an order for the holding of a referendum) had been the same when he gave the direction.

21.     If the Secretary of State cannot satisfy himself that he would have given the direction to the Boundary Committee in relation to the region, subsection (8) requires him to consider views expressed, information provided to him, and any published material he thinks appropriate in order to satisfy the first precondition.

22.     The second precondition to the making of an order for a referendum is that the Boundary Committee have made a recommendation arising out of their review of the local government structure of the region (subsection (5)).

Clause 2: Referendum question

23.     Clause 2 sets out the question to be asked in a referendum on regional assemblies. It also sets out a brief statement about the purpose of the referendum (which must precede the question on the ballot paper). In this regard, section 104 of the PPER Act requires the Electoral Commission to consider the intelligibility of the wording of the referendum question (including any statement preceding it) and to publish a statement of their views on this as soon as reasonably practicable after the Bill is introduced. The Electoral Commission published their views on 25th November 2002.

Clause 4: Referendum period

24.     Clause 4 requires the Secretary of State to set the referendum period for each referendum. This relates to provisions in Part 7 of the PPER Act, which impose limits on expenditure and controls on the publication of referendum-related material during the referendum period. This period will generally need to be a minimum of 10 weeks (by virtue of sections 103 and 109 of the PPER Act).

Clause 5: Referendums - frequency

25.     Clause 5 provides that, where a region has held a referendum resulting in a 'no' vote, a second or subsequent referendum cannot be held for at least another five years.

Clause 6: Combination of polls

26.     Clause 6 enables provision to be made by order for the combination of polls at a referendum under the Bill with other polls for any election or at referendums held under Part 2 of the Local Government Act 2000. Before making an order under this clause a Minister of the Crown must first consult the Electoral Commission.

27.     Subsection (2) expressly provides for the order-making power to cover the making of provision in connection with the combination of polls, the creation of criminal offences and the application of enactments relating to referendums or elections.

28.     Examples of what such an order might provide are a requirement for the same polling station to be used; for different coloured ballot papers to be used; and the application (with or without modifications) of provision made under section 129(1) of the PPER Act.

Clause 8: Provision of information to voters

29.     Under section 108 of the PPER Act, the Electoral Commission has the power to designate one "permitted participant" (such as a political party or a campaign group) as a campaign representative for each possible outcome of a referendum. The benefits of such a designation are outlined in paragraph 13 above.

30.     But if for whatever reason the Electoral Commission do not act under section 108, clause 8 gives the Commission the power to make available to those entitled to vote in a referendum under this Bill information aimed at promoting awareness about the arguments for and against each answer to the referendum question.

Clause 9: Expenditure

31.     Clause 9 enables provision to be made, amongst other things, for payment by the Electoral Commission of counting officers' charges in connection with a referendum held under the Bill.

Clause 10: Exclusion of legal proceedings

32.     The purpose of clause 10 is to prevent legal challenges to a referendum result. The inclusion of this clause follows the precedent set by, for example, section 6 of the Greater London Authority (Referendum) Act 1998, section 4 of the Referendums (Scotland and Wales) Act 1997 and section 4 of the Referendum Act 1975.

Clause 11: Supplementary

33.     This clause sets out supplementary matters relating to Part 1 of the Bill. For example, subsection (1) will have effect so that if there is provision in, or made under, Part 1 for or in connection with regulating the conduct of referendums under the Bill, section 129(3) of the PPER Act does not prevent an order made under section 129(1) of that Act applying to referendums under the Bill. Subsection (2) clarifies that this will be the case in respect of any order under section 129(1) of the PPER Act, whenever made.

34.     The clause also provides for the interpretation of certain terms and expressions used in Part 1 (subsections (4) to (6)).

Part 2: Local government reviews

Clauses 12 - 13: Local government review

35.     Clause 12 enables the Secretary of State to direct the Boundary Committee to conduct a local government review and make recommendations as to the matters considered by the review, in a region where he is considering holding a referendum on establishing an elected assembly.

36.     The Boundary Committee must carry out the review on the assumption that there is an elected regional assembly (subsection (8)(a) of clause 13). They must consider what wholly unitary local government structure is most appropriate for the existing 'two-tier' parts of a region (subsection (3) of clause 13) and must recommend a structural change to a single tier of local government for those parts (subsection (8)(b) of clause 13). Changes to the boundaries of existing unitary authorities, such as the metropolitan districts, and of any area outside the region being reviewed, cannot be considered (subsection (5) of clause 13).

37.     The Boundary Committee must have regard to various factors when conducting a local government review (subsection (8)(c), (d) and (e) of clause 13), in line with the precedent for reviews under the 1992 Act.

38.     For various reasons it may not be appropriate for directions to be given in relation to two or more regions at the same time. In this case, the Secretary of State may wish to take various factors into account in deciding in relation to which region or regions (if any) he should give a direction.

39.     It is a precondition to the giving of a direction in relation to any region that the Secretary of State has considered the level of interest in that region in the holding of a referendum (subsection (2) of clause 12). But in a situation where two or more regions are under consideration for a local government review, it may be that the Secretary of State will want to compare the levels of interest in the holding of a referendum in those different regions. Hence subsection (3) of clause 12.

40.     The level of interest in holding a referendum does not equate to the level of interest in having an elected regional assembly. Level of interest in having such an assembly will be what is tested by a referendum itself.

41.     Subsection (5) of clause 12 sets out a range of additional factors which the Secretary of State may also consider if, in his view—

  • the level of interest test is inconclusive in informing his decision as to whether to give a direction to the Boundary Committee in relation to a region;

  • the comparison of levels of interest in different regions is not decisive in his choice between different regions in relation to the giving of that direction.

42.     Subsection (7) of clause 12 ensures that the Secretary of State can carry out any assessment of the level of interest in a region in the holding of a referendum, and any comparison of such levels between different regions, and may consider the factors in subsection (5), before the Bill receives Royal Assent.

43.     Subsections (6) and (7) of clause 13 enable the Boundary Committee to require a public body to supply information required in connection with a local government review. This follows the precedent set by the 1992 Act (Schedule 2, paragraph 4(3)) which gave a similar power to the Local Government Commission.

Clauses 14-16: Review procedure and implementation of recommendations

44.     Clauses 14 to 16 apply certain provisions of the 1992 Act (some with modifications) to the Boundary Committee's local government reviews. Under this Bill, the Boundary Committee and not the Electoral Commission will be conducting the reviews; the reviews will not apply to London or to parish councils; and electoral change will fall outside the ambit of these reviews. Where there is a 'yes' vote at a referendum an electoral review can be undertaken by the Electoral Commission under their existing powers to determine the most suitable electoral areas for the new unitary authorities that are to be established.

     Clause 14: Review procedure

45.     A 'structural change' is defined in section 14(1)(a) of the 1992 Act as "the replacement, in any non-metropolitan area, of the two principal tiers of local government with a single tier".

46.     A 'boundary change', as defined in section 14(1)(b) together with section 14(3) of the 1992 Act, includes the alteration of a boundary, the constitution of a new local government area by the amalgamation of two or more local authorities, and the abolition of an existing authority.

47.     Section 14 of the 1992 Act also sets out matters which may be included in the Boundary Committee's recommendations. These include—

  • the abolition or establishment of a local authority;

  • the extent to which joint arrangements between authorities should be made in relation to functions affected by the structural change;

  • whether, as a result of the changes, any modifications are needed to the arrangements for the preparation of unitary plans, structure and local plans, and mineral and waste plans; and

  • whether there should be any change in police areas in connection with the structural change recommended.

48.     Section 15 of the 1992 Act sets out the standard procedure for a review, which is applied with modifications to reviews under this Bill. As soon as practicable after being directed to conduct a review, the Boundary Committee must ensure that interested persons are informed of the direction and the period within which they may make representations. The Boundary Committee must take into consideration any representations made to them within this period. They must then prepare draft recommendations, ensuring that interested persons are informed of them and of the period within which they may make representations in respect of them, and they must deposit copies of the draft recommendations at the principal office of any principal council (or police authority) likely to be affected by them. The Boundary Committee must take into consideration any representations made to them in respect of the recommendations within the set time period.

49.     The Boundary Committee must subsequently submit a report on the review to the Secretary of State along with their recommendations, ensuring that interested persons are informed of them and of the period within which they may be inspected. They must also deposit copies of the recommendations at the principal office of any principal council (or police authority) likely to be affected by them.

50.     The application of section 15A of the 1992 Act enables the Boundary Committee to use an alternative shortened procedure when conducting a review in circumstances where they think this would be appropriate. The Boundary Committee might decide to do so where, for example, the Secretary of State has chosen to direct that a further review is to be held in a region five years or so after an earlier review and a 'no' vote in a previous referendum.

51.     Section 16 of the 1992 Act requires the Audit Commission, if consulted, to provide a written opinion on the likely impact of any proposed structural changes on economy, efficiency and effectiveness in the provision of services provided by the bodies likely to be affected by the changes. The Audit Commission may require any body to supply it with information to carry out this task, and may charge fees to cover the cost of this task.

Clause 15: Implementation of recommendations

52.     Clause 15 of the Bill enables the Secretary of State to give effect by order under subsection (2) to recommendations of the Boundary Committee with or without modifications. Such an order is subject to the affirmative resolution procedure under clause 27. The clause sets out the procedure for implementing the recommendations and applies with modifications parts of section 17 of the 1992 Act for this purpose. The relevant subsections of section 17 set out those provisions that may be included in an order. These include provision as to—

  • the area of any authority and the name of such area;

  • the name of any authority;

  • the establishment of any new authority for a county or district or winding up and dissolution of an existing authority;

  • the constitution (election and membership) of public bodies in the areas affected by the order; and

  • the abolition or establishment, or the restriction or extension of the jurisdiction, of any public body in or over any part of any area affected by the order.

53.     Section 17(6) of the 1992 Act requires the Secretary of State, when implementing the Boundary Committee's recommendations, to do so in such a way as to ensure that neither a county in which there are no district councils, nor a district in any other county, is divided between two or more police areas.

54.     There is also a power under clause 15(6) to make an order correcting a mistake in the preparation of the original order where it may not be possible to give the intended effect to a recommendation by a further order under subsection (2). A correction order is also subject to the affirmative resolution procedure.

Clause 16: Application of the 1992 Act

55.     Clause 16 applies further provisions of the 1992 Act with certain modifications. The modifications substitute the Boundary Committee for the Electoral Commission. They also apply the provisions contained in section 26 of the 1992 Act (which relate to the order-making powers under Part 2 of that Act) to those provisions applied by clause 16 for the purposes of the Bill. This means that apart from clause 15, which makes specific provision as described above, the provisions and powers to make orders or regulations relating to a local government review under this Bill are substantially the same as for structural reviews under the 1992 Act.

56.     Section 18 of the 1992 Act states that, where the functions of a district council are to be transferred to a county council, the county council shall become the billing authority for the purposes of Part I of the Local Government Finance Act 1992 and shall not be a major precepting authority for those purposes. A district council which is to have the functions of a county council under the order will become the area of a fire authority for the purposes of the Fire Services Act 1947.

57.     Section 19 of the 1992 Act enables the Secretary of State by regulations of general application to make such incidental, consequential, transitional or supplementary provision as he thinks necessary or expedient to support an order under clause 15.

58.     Section 20 of the 1992 Act enables any public bodies affected by an implementing order to make agreements in relation to any property, income, rights, liabilities and expenses (so far as affected by the order) of, and any financial relations between, the parties to the agreement.

59.     Section 21 of the 1992 Act enables the Secretary of State to establish a joint authority to carry out any functions which are to be functions of any authority as a result of any structural or boundary change.

60.     Section 22 of the 1992 Act enables the Secretary of State to establish one or more bodies ('residuary bodies') for the purposes of taking over any property, rights or liabilities, and any related functions, of local authorities which cease to exist as a result of an implementation order.

61.     Section 23 of the 1992 Act enables the Secretary of State to establish one or more staff commissions to consider staffing issues relating to the authorities affected by the implementation order.

62.     Section 26 of the 1992 Act concerns orders and regulations made by the Secretary of State under sections 19, 21, 22 and 23 of the 1992 Act as applied by clause 16. Any such order shall be subject to the negative resolution procedure. This means that the statutory instrument by which the order or regulations are made must be laid before Parliament and either House has forty days within which it can move a resolution to annul it.

63.     But an order under those provisions which effects a structural change or establishes a joint authority for two or more local government areas is subject to the affirmative resolution procedure.

64.     With regard to any orders or regulations made under sections 19, 21, 22 or 23 of the 1992 Act, section 26—

  • gives the Secretary of State flexibility to make different provision for different cases;

  • enables him to make incidental, consequential, transitional or supplementary provision with power for that purpose to amend, apply (with or without modifications), extend, exclude, repeal or revoke any enactment or any instrument made under any enactment or any charter;

  • enables him, where he has power under those provisions of the 1992 Act:

    - to provide for the transfer of any functions, property rights or liabilities;

    - to make transitional provision in connection with such a transfer or with the establishment of any body,

    to make provision in relation to legal proceedings, staffing matters and the legal status of bodies associated with transfers;

  • enables him by a subsequent direction to vary or revoke any direction he makes under the applied provisions of the 1992 Act; and

  • enables him to rectify a mistake by order made under those provisions if a mistake has occurred in the preparation of an order and that mistake cannot be rectified by a subsequent order.

65.     Section 26(4) contains a limited Henry VIII power where an order giving effect to local government reorganisation may require incidental, consequential, transitional or supplementary provision. It is a common form of this type of power and is restricted to the practical purposes of adjusting enactments or instruments to fit the changing circumstances that arise from structural and boundary changes.

 
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