Select Committee on Delegated Powers and Regulatory Reform Eleventh Report


Annex 1

REGIONAL ASSEMBLIES (PREPARATIONS) BILL

Memorandum by the Office of the Deputy Prime Minister

INTRODUCTION

1.  The Regional Assemblies (Preparations) Bill was brought from the House of Commons on 27 January 2003. This Memorandum:

  • Summarises the main provisions of the Bill;
  • Identifies the provisions for delegated powers in the Bill and describes their purpose and proposed use;
  • Explains why matters have been left to delegated powers; and
  • Explains the degree of Parliamentary control over the exercise of each power.

SUMMARY OF THE BILL

2.  The Bill takes forward the proposals set out in the White Paper Your Region, Your Choice, published on 9 May 2002. These proposals honour 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."

3.  The Bill contains paving arrangements for the establishment of regional assemblies. Principally, it provides for holding referendums about the establishment of regional assemblies in any of the English regions (outside London) and ensuring that a 'local government review' of a region has occurred before such a referendum takes place. The main provisions of the Bill constitute:

  • a power for the Secretary of State to order a referendum to be held in any of the English regions (outside London), including the conditions to be satisfied before such an order is made. Also covered are, for example, the form of the referendum question, entitlement to vote, the frequency of subsequent referendums following a 'no' vote and a power to make, by delegated legislation, provision for the combination of the poll at a referendum under the Bill with other polls (Part 1);
  • a power for the Secretary of State to direct the Boundary Committee for England, before a referendum is held, to carry out a review of local government (a 'local government review') in any of the English regions (outside London). In carrying out such a review, the Boundary Committee will be obliged to recommend the most appropriate structural change to the existing two-tier (county and district) authorities to provide a wholly unitary local government structure for the region, on the assumption that there is an elected regional assembly. The conditions to be met before deciding in which region(s) reviews should be carried out, the procedure for the reviews and the implementation of the Boundary Committee's recommendations by delegated legislation are also provided for (Part 2);
  • provision requiring the Secretary of State (provided certain preconditions are satisfied) to direct the Electoral Commission to give advice on one or more matters relating to electoral areas for regional assemblies or the number of members to be elected to assemblies (Part 3);
  • a power to make grants in respect of a regional chamber's activities (Part 4);
  • a number of miscellaneous matters covering, for example, expenditure and the procedure for exercising powers to make orders and regulations (Part 5).

OVERVIEW OF THE DELEGATED POWERS IN THE BILL

4.  The Bill contains 29 clauses and one Schedule. Of these, eight clauses contain powers to make orders or regulations. Another two clauses create powers of direction. Other clauses make supplemental provision relating to these powers. All powers in the Bill to make orders or regulations are subject to affirmative resolution of both Houses. (Paragraph 11 explains the one set of powers under the Bill subject to the negative resolution procedure).

5.  Each of the powers to make an order or regulations or a direction is considered in detail in paragraphs 19-66 below. First, however, an explanation is provided of the general approach of the Office of the Deputy Prime Minister ("ODPM") to the delegated powers in the Bill (paragraphs 6-7 below) and then of clause 27 which makes general provisions affecting delegated powers in the Bill (paragraphs 8-18 below).

THE RATIONALE FOR USING DELEGATED POWERS

6.  In deciding whether to specify a matter on the face of the Bill or to leave it to delegated legislation, the ODPM has sought to achieve a balance. Alongside the importance of expressly setting out provision in the Bill, the following factors have been weighed:

  • The desire to avoid making the Bill too cumbersome through the inclusion of too much technical or administrative detail;
  • The utility of being able to respond to changing, or to different sets of, circumstances quickly and flexibly;
  • The rightful role of Parliament to scrutinise the detail of such delegated legislation;
  • The appropriateness of powers being subject to consultation before their exercise;
  • The consistent application of existing procedures and powers for structural reviews of local government found in the Local Government Act 1992 ("the 1992 Act").

7.  One core element of the approach to the use of delegated powers has been the Government's policy that the paving arrangements for the establishment of regional assemblies should not, of necessity, happen in respect of every region at the same time. Delegated powers have therefore been used to decide in respect of which regions and when these arrangements are made. Moreover, some of the Bill's provisions, e.g. those concerning implementation of local government reviews, require the ability to respond to different sets of circumstances in the different regions.

GENERAL PROVISIONS AFFECTING DELEGATED POWERS (CLAUSE 27)

8.  The powers to make orders or regulations under the Bill are exercisable either by the Secretary of State only or, in the case of some of the powers in Part 1, by a Minister of the Crown. This will be evident from the detailed account of each of the powers below.

Parliamentary procedure

9.  Clause 27(1) requires any power in the Bill to make an order or regulations to be exercised by statutory instrument. Clause 27(2) requires that all such orders or regulations may only be made if a draft of them is laid before and approved by both Houses of Parliament. These two provisions, by implication, will cover the amending or revoking of orders or regulations.

10.  In adopting the affirmative resolution procedure in relation to these powers, the ODPM believes that it has appropriately provided for a high level of Parliamentary scrutiny of the decisions made under them.

11.  Only one set of powers under the Bill to make delegated legislation is not subject to the affirmative resolution procedure. These are the powers under clause 16, which contain provisions applied with modifications from Part 2 of the 1992 Act, to give supportive effect to local government reorganisation. Those powers use the requirements of section 26 of the 1992 Act and are subject to the negative resolution procedure. The ODPM believes there is an appropriate distinction between the degree of scrutiny to the structural change order itself, made under clause 15(2), which has the effect of reorganising local government by steps such as winding up and creating local authorities, and the type of powers exercisable under clause 16. The latter are concerned with the technical and administrative reordering that arises when such a change takes place. Orders under clause 15(2) are subject to the affirmative resolution procedure. Instruments made under clause 16 are subject to the negative resolution procedure, except for those concerning joint authorities which are subject to the affirmative resolution procedure.

12.  The exercise of the two direction-making powers in this Bill is not subject to express provision requiring Parliamentary scrutiny or requiring the directions to be made by statutory instrument. However, this approach is well precedented by, for example, Part 2 of the 1992 Act as it was before amendments made under the Political Parties, Elections and Referendums Act 2000 ("the PPER Act") and Part 2 of the Greater London Authority (Referendum) Act 1998. Moreover, for local government reviews, the principal powers in the Bill to give effect to the recommendations received as a result of a direction are to be exercised by order made by statutory instrument under the affirmative resolution procedure. In relation to the other direction-making power (which is under Part 3 of the Bill), no power is provided in the Bill to implement the advice which is received as a consequence of its exercise. It is currently intended that such a power will be provided in the substantive Bill to establish assemblies, which the Government intends to introduce, when Parliamentary time allows, following a 'yes' vote in a referendum.

Power to make consequential, incidental, etc provision (including provision amending, repealing or revoking enactments)

13.  Clause 27(3) enables an order or regulations to contain such consequential, incidental, supplementary or transitional provision or savings as the person making the order or regulations thinks appropriate. This power is expressed to extend to making provision amending, repealing or revoking enactments. The wording used is similar to that found in section 156(5) of the PPER Act (which supplements the order or regulation making powers in that Act relating to referendums) and loosely follows the approach in Part 2 of the 1992 Act. As will be evident from the above, any such provision would be subject to Parliamentary scrutiny by virtue of clause 27(2).

14.  A number of consequential amendments to other Acts to take account of the existence of a Regional Assemblies (Preparations) Act 2003 are set out in the Schedule to the Bill.

15.  However, since the powers in the Bill are likely to be used separately and one after another, it is not easy to predict what incidental, supplementary or consequential matters may need to be dealt with in any particular case. For example, it is not possible to foresee, ahead of receiving recommendations from local government reviews, what changes to legislation may be necessary to give effect to recommendations and orders for local government reorganisation. The 26 structural change orders made under the 1992 Act reviews made adjustments to the Police Act 1964, the Fire Services Act 1947 and the Town and Country Planning Act 1990, ensuring, for example, that matters such as the revised constitution of a police authority or the new area of a fire authority were provided for. We would anticipate the need for similar modifications when implementing the recommendations of local government reviews.

16.  It is also to be noted that a similar power to make incidental, consequential, transitional or supplementary provision, is contained in section 26(4) of the 1992 Act and applied by clause 16 of the Bill. The use of this power is limited to the making of orders and regulations in connection with the implementation of local government re-organisation, (see paragraph 57 for further details).

Hybridity

17.  Clause 27(4) and (5) ensure that the hybrid procedure for affirmative resolution instruments does not apply to instruments made under Part 1 or clause 15 of the Bill, or to any provision made under section 129(1) of the PPER Act for referendums held under this Bill. Section 129(1) is the power to make provision by order for or in connection with regulating the conduct of referendums, which would include referendums under this Bill.

18.  The approach taken in clause 27(4) and (5) has precedent. For example, under section 26(2) of the 1992 Act, orders made under Part 2 of that Act, if they are subject to affirmative resolution, are not to be treated as a hybrid instrument.

DETAIL OF DELEGATED POWERS IN THE BILL

Clause 1: Referendums

19.  Subject to two pre-conditions, clause 1 empowers the Secretary of State to cause by order a referendum to be held in a region about the establishment of an elected regional assembly there. Clause 1(2) requires that such an order must specify the date of the referendum.

20.  The two preconditions that need to be met before the Secretary of State may make an order for a referendum are (in basic terms) first, that he has considered the level of interest in the relevant region in the holding of a referendum, and secondly, that the Boundary Committee have made recommendations arising out of their local government review of that region.

21.  Use of the power in clause 1(1) is further circumscribed by clause 5. This in effect prevents a further referendum being held in a region during the five year period following a 'no' vote.

22.  Clause 1(9) enables the Secretary of State, by order, to vary or revoke an order made under clause 1 if he thinks it is not appropriate for a referendum to be held on the date specified in the order. Such a scenario could arise if, for example, there were an emergency, such as something analogous to the foot and mouth crisis. In such circumstances, it may be considered that the referendum should be moved to a later date or indefinitely delayed to allow a proper campaign to be run and for voters to be able to get to the polls.

23.  A delegated power of the sort in clause 1(1) seems to be clearly envisaged by section 102(2) of the PPER Act. It is right in this instance as it is not possible to specify with certainty (and so on the face of the Bill) where and when referendums are to be held. The Government's intention is that referendums on establishing elected regional assemblies should not be held where there is insufficient interest in holding one. If there is little interest in holding a referendum, the Government believes that it would not be sensible to undergo the expense and distraction of either a local government review or the referendum itself. Also, the Government's policy is that a local government review of a region should take place before a referendum is held in a region and this is encapsulated in clause 1(5).

24.  Consequently, the Government is currently conducting soundings to help to establish the level of interest in each region in holding a referendum on an elected regional assembly (as permitted by clause 12(7)). This is so as to inform the decision on in respect of which region(s) a local government review is to be directed.

25.  This overall approach, therefore, necessitates that the decision as to where referendums take place is by delegated power. An order-making power provides the flexibility to enable referendums to be held in regions as and when appropriate for each individual region. An alternative would be to set out on the face of the Bill only a limited number of regions where a referendum is to take place. However, that would mean that other regions would be denied a referendum until further primary legislation was enacted.

26.  It would also not be possible to specify the dates of the referendums on the face of the Bill, since the precise timing will depend on when the local government review for the region is directed and how long the review takes to complete. Also, it may be sensible for the date of a poll to be the same as that of another referendum or election. So the date of the referendum will be set by order.

Clause 3: Entitlement to vote

27.  Clause 3 sets out the entitlement to vote in a referendum on an elected regional assembly. The basic principle, set out in clause 3(1), is that a person is entitled to vote in such a referendum if on the date of the referendum he is entitled to vote at local government elections in the region.

28.  Clause 3(2) makes clause 3(1) subject to provision made by the Secretary of State in regulations for disregarding alterations made after a specified date in a register of electors. Clause 3(3) enables these regulations to apply or incorporate with or without modifications or exceptions any provision of any enactment (whenever passed or made) relating to referendums or elections.

29.  Subsections (2) and (3) are precedented. For example, similar provision is contained in sections 2(2) and 4(2) of the Greater London Authority (Referendum) Act 1998 and in section 45(7) and (8) of the Local Government Act 2000.

30.  These subsections are in the Bill so that the basic rule in clause 3(1) can be made to correspond with the provisions in section 13B of the Representation of the People Act 1983. Those provisions require that certain alterations to the register of local government electors are ignored for the purposes of the election after 'the final nomination day', but subject to some exceptions. The 'final nomination day' is the last day on which nominations may be delivered to the returning officer for the purposes of a local government election.

31.  Consequently, we may want to apply these provisions to referendums under this Bill, particularly if there were a combination of a referendum poll with that of a local government election. In that situation, it would be sensible that, given that the franchise for our referendum is the local government franchise, there is no disparity between those who can become registered for the purposes of the referendum and those who can become registered for the local government election. Otherwise those running the referendum would have to deal with two categories of entitlement to vote. Or alternatively, if there is no combination of polls, but just a referendum, without provision under these subsections section 13B would not apply to referendums under this Bill. So, for example, there would be no analogous mechanism to set a cut-off date for registration for referendums.

32.  The type of provision made under subsections (2) and (3) could involve the application of section 13B to referendums under the Bill. This is so that the restriction on registrations after 'the final nomination day' is applied for the purposes of referendums under the Bill from an equivalent date.

Clause 4: Referendum period

33.  Clause 4 requires the Secretary of State, by order, 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).

34.  Section 102(3) of the PPER Act envisages that the referendum period might be set under an Act (i.e. by subordinate legislation).

35.  A power to set the period by delegated legislation is sought here since it is not possible to set the exact referendum period on the face of the Bill without knowing the date of a referendum (which, as noted above, will be set by order under clause 1). Furthermore, a period of more than 10 weeks may be desirable in some circumstances, for example if the referendum period spanned a public holiday period or if extra time for public debate in the regions was considered desirable. A delegated power is therefore needed to provide the necessary flexibility to set different referendum periods.

Clause 6: Combination of Polls

36.  Clause 6 enables a Minister of the Crown to make provision by order for the combination of polls at a referendum under this Bill with other types of polls being held at the same time. The latter polls are polls at local government mayoral referendums (i.e. those under Part 2 of the Local Government Act 2000) and polls at any election (see clause 6(1)(a) and (b)). The Electoral Commission must be consulted before any order is made under clause 6.

37.  Specific reference is made to local government mayoral referendums in subsection (1)(a) because they are not covered by section 129(1) of the PPER Act. Subsection 129(1) allows for provision to be made for or in connection with regulating the conduct of certain other types of referendums. These referendums are listed in section 101 of the PPER Act and include any referendum held throughout the United Kingdom, England or the regions. ODPM consider that the power under section 129(1) could only be used for making provision to combine the polls at any referendums falling within its ambit.

38.  Broadly speaking, provision of the sort in clause 6 is precedented by previous electoral and referendums legislation, including section 4(2) of the Greater London Authority (Referendum) Act 1998, section 45(6) and (7) of the Local Government Act 2000, and section 15(5) of the Representation of the People Act 1985. An example of subordinate legislation which has been made under analogous powers is article 13 of, and Schedule 2 to, the Greater London Authority (Referendum Arrangements) Order 1998 (SI 1998/746).

39.  The clause is aimed at allowing common arrangements to be made where polls are to be held on the same day. If polls were simply run in parallel, there would be the clear potential for extra administrative costs and the duplication of the work undertaken by counting officers and by returning officers. It is not considered desirable that detailed provision about essentially technical and procedural matters such as those covered by the power in this clause should be made in the Bill itself. Furthermore, any order will need to take account of, and will affect the provision of, an order made under section 129(1) of the PPER Act which applies to referendums under the Bill. No such order has yet been made, but it will by its very nature contain detailed rules on the conduct of referendums. The existence of the delegated power in clause 6 would provide for flexibility to take account of any such orders that are made, and any amendments to them.

40.  Clause 6(2) further defines the order-making power. For example, it enables an order to apply or incorporate with or without modifications or exceptions any provision of any enactment (whenever passed or made) relating to elections or referendums. In addition, it allows for the creation of criminal offences.

41.  Such an order might, for example, require: different colours of ballot papers for the referendum under the Bill and for the election; that the same polling stations are used; and that notices published in connection with an election refer to the fact that the poll for the election is to be taken with the poll for the referendum.

42.  Regarding criminal offences, we would want to ensure that, where appropriate, provision already made in relation to elections or referendums that makes conduct criminal could be applied to the situation where polls are combined. An example might be that, where polls are combined, returning officers would take on some of the functions (for example, publishing the official notice relating to the referendum, verifying the referendum poll papers) that counting officers have where a referendum is held on its own. It may be sensible to apply the offence in section 63 of the Representation of the People Act 1983 (breach of official duty) so that what constitutes official duties of a returning officer includes those conferred by an order under clause 6. As the offence in section 63 is currently defined, it only covers duties imposed by the law relating to parliamentary or local government elections or the registration of parliamentary or local government electors.

Clause 9: Expenditure

43.  Clause 9 enables a Minister of the Crown to make provision by order for payment by the Electoral Commission of counting officers' charges in connection with a referendum about establishing an elected regional assembly. It also enables provision to be made for the Electoral Commission to pay any increase in the superannuation contributions required to be paid by a local authority, as a consequence of fees paid as part of a counting officer's charges. Before making any such order, the Electoral Commission must be consulted and the Treasury must give its consent.

44.  Clause 9(2) provides that the order may include the type of services and expenses for which payment can be made by the Commission and the maximum amount that can be paid in respect of such services and expenses. It may also make provision on payments in advance and accounts to be submitted.

45.  Previous legislation on elections and referendums has left this sort of detail to subordinate legislation. An order would also be easier to update to take account of factors such as inflation and new categories of expenses.

Clause 12: Local Government Review

46.  Clause 12(1) enables the Secretary of State to direct the Boundary Committee to carry out a review of local government in a region. The purpose of a local government review is to determine the best form of unitary local government for those areas of a region that currently have two-tier local government (clause 13(3)). Clause 12(10) empowers the Secretary of State to vary or revoke a direction by a subsequent direction.

47.  Recommendations arising out of a local government review must have been made to the Secretary of State before he makes an order causing a referendum to be held in a region about the establishment of a regional assembly (clause 1(5)). Therefore, under clause 12(1), when the Secretary of State is considering causing a referendum to be held in any region he may direct the Boundary Committee to carry out a local government review.

48.  As explained in paragraph 23, the Government's intention is that referendums should not occur in regions where there is insufficient interest in having them. So, the direction-making power may only be exercised after this matter is considered (see clause 12(2)) and this is because a local government review is a necessary requirement for an order causing a referendum to be held. Overall, this provides for flexibility so that a review is only carried out in respect of those regions where the Secretary of State is considering to hold a referendum.

49.  The direction-making power in clause 12 is not subject to Parliamentary scrutiny. This is precedented in section 13 of the 1992 Act. In addition, the recommendations arising out of a local government review would be given effect through an order under clause 15, which itself would be subject to affirmative resolution of both Houses.

Clause 15: Implementation of recommendations

50.  Clause 15(2) enables the Secretary of State, by order, to give effect to all or any of the recommendations of the Boundary Committee made to him following a local government review carried out under clause 12 of the Bill. The provisions mirror those for reviews under the 1992 Act and are applied by this Bill, with modifications to reflect the specific nature of local government reviews.

51.  Clause 15(5) specifies the provisions that may be included in the order. They are those in section 17 of the 1992 Act, applied with modifications. They provide for the principal steps of reorganising local authorities, including establishing new authorities and authority areas, winding up and dissolving existing ones, and dealing with changes to public bodies in or over any part of an area affected by the order. Unlike the 1992 Act, there is no need for ability to make provisions concerning electoral change or to be concerned about police areas crossing London boroughs.

52.  The provisions give flexibility to implement differing recommendations for each individual region, taking account of regional circumstances. The practicalities of reorganising local government are almost inevitably complicated with a need to rearrange the authorities and bodies with responsibility for local government areas and functions.

53.  Prior to making such an order under clause 15(2), the Secretary of State may direct the Boundary Committee to supply him with additional information or advice. It is desirable that the Secretary of State can require further specific material from the Boundary Committee that may assist in determining what order is appropriate to make.

54.  Clause 15(6) provides the Secretary of State with a power by order to correct what he believes to have been a mistake in the preparation of an order under clause 15(2), which cannot be corrected by either a subsequent 15(2) order or the implied power to rectify a mistake by amendment, modification or revocation under section 14 of the Interpretation Act 1978. The purpose of this provision is to ensure a procedure exists for rectifying mistakes where a recommendation has already been implemented and it would be impractical to expect a further local government review to be held to produce another or different recommendation. The power covers circumstances, for example, where in relying on inaccurate or incomplete information from a public body a provision has been included or omitted in an order made under clause 15(2). The power is derived from section 26(6) of the 1992 Act.

55.  The importance of the nature of the change to local government is recognised by use of the affirmative resolution procedure.

Clause 16: Application of 1992 Act

56.  Clause 16 applies several provisions of the 1992 Act with modifications. Whereas the structural change to local authorities is effected by orders made under clause 15(2), the purpose of these provisions is to enable the orderly transition from one authority to another in the event of local government reorganisation. They comprise a number of order and regulation making powers that support or supplement such orders made under clause 15(2). They provide for the transfer of existing functions, property, rights and liabilities from one body to another, and allow for the establishment and operation of staff commissions and residual authorities.

57.  The provisions and procedure reproduce those in the 1992 Act, as modified for the circumstances of a review under this Bill. Section 26 of the 1992 Act contains a narrow power for the Secretary of State by order or regulations to make incidental, consequential, transitional, or supplementary provision which includes power for those purposes, in respect of any enactment, to apply with or without modifications, to extend, exclude or amend, or to repeal or revoke with or without savings. There is also power to make different provision for different cases. Prior to receipt of recommendations from the Boundary Committee, it is not possible to foresee what changes to legislation may be thought appropriate. But the ODPM expects that the exercise of the powers will be in much the same terms as that under the 1992 Act. The Appendix to this Memorandum explains the provisions of the 1992 Act applied by clause 16, and lists the orders that have been made under those provisions for reviews conducted under the 1992 Act.

58.  Instruments effecting a structural change or establishing a joint authority for two or more authorities require affirmative resolution. This reflects the relative importance of the primary restructuring of local government and is seen in the requirements for orders under clause 15. The 1992 Act otherwise provides that instruments made under provisions applied by clause 16 use the negative resolution procedure. The ODPM believes it is fitting to follow the precedent and practice under the 1992 Act for the limited circumstances of providing for effective transition upon local government reorganisation.

Clause 18: Isles of Scilly

59.  Clause 18(2) enables the Secretary of State by regulations to make appropriate provision for the special case of the Isles of Scilly in consequence of anything done under Part 2 of this Bill. The Council of the Isles of Scilly is neither a county nor district council, though provisions have been made in various statutes for the Council to exercise and perform specified local government functions. A local government review and any subsequent reorganisation carried out under Part 2 will not affect the local government structure of the Isles of Scilly, which already have a single tier of local government. However, certain functions are performed by Cornwall County Council for the benefit of the Isles of Scilly.

60.  Due to its unusual status, provisions of general application to give effect to an order implementing structural and boundary changes may not be suitable for the Isles of Scilly. Thus, in the event of an order implementing changes to Cornwall County Council, for example, provision may need to be made for functions performed for the benefit of the Isles of Scilly to be performed by one or more successor unitary authorities.  It is not possible to predict what the appropriate provision would be until the details of any such changes to Cornwall County Council were known. It is therefore appropriate and consistent with well-accepted practice for this to be provided for by delegated legislation.

Clause 19: Advice of the Electoral Commission

61.  Clause 19(1) and (2) require the Secretary of State to direct the Electoral Commission to provide certain advice (relating to a region) if two preconditions are satisfied. The preconditions are that a referendum has been held in the region and that the Secretary of State proposes to establish an elected assembly for that region. An effect of clause 24 is that it is not necessary for the Secretary of State to have power to establish an elected assembly for the region in order to be able to propose that one is established. This is so that the advice may be given by the Electoral Commission before a Bill has been enacted providing for elected regional assemblies.

62.  Subsection (2) requires that a direction must be made within 2 years of the date of the referendum.

63.  Under clause 19(3), the direction must require the Commission to give advice on at least one of four matters. These are: the electoral areas into which the region is to be divided for the purposes of an election of assembly members; the number of electoral areas; the name by which each electoral area is to be known; and the total number of elected assembly members for the region.

64.  The rest of clause 19 and clauses 20 and 21 provide for a number of supplementary matters, including provision on varying a direction, setting the timetable for the Commission to produce its advice and for the Commission to take account of guidance given by the Secretary of State.

65.  This direction-making power (as well as the associated provisions in Part 2 of the Bill) follows the approach in Part 2 of the Greater London Authority (Referendum) Act 1998 under which advice was obtained from the Local Government Commission. The provisions differ slightly in that there is an obligation (under certain circumstances) in this Bill to obtain the advice. In addition, a direction-making power is appropriate, rather than simply an obligation to request advice. This is since an obligation to obtain advice would in theory be rendered inoperative by a refusal to provide it.

66.  It is ODPM's intention that copies of directions made under clause 19 will be deposited in the House Libraries.

January 2003

Appendix to the Delegated Powers and Regulatory Reform Memorandum of the Office of the Deputy Prime Minister for the Regional Assemblies (Preparations) Bill

Provisions of the 1992 Act applied by clause 16 with modifications

(1)  Section 18 LGA 1992

  The section imposes certain requirements for orders made under clause 15(2) for the situations where the effect of structural change has a bearing on which authority shall be a billing authority for the purpose of Part I of the Local Government Finance Act 1992, and has certain consequences for combination schemes under the Fire Services Act 1947. The only modification to the 1992 Act is that the Secretary of State should have regard to recommendations from the Boundary Committee and not from the Electoral Commission.

(2)   Section 19 LGA 1992

This section provides a power for the Secretary of State to make regulations of general application concerned with incidental, consequential, transitional or supplementary provisions as he thinks necessary or expedient to orders implementing recommendations or to give them full effect. This power includes the ability to make regulations dealing with the transfer of functions, property, rights, or liabilities from one authority for any area to another for that area or part of an area, and for dealing with the functions or areas of jurisdiction of various public bodies or persons exercising public functions such as Justices of the Peace and coroners.

Many such regulations have been made under the 1992 Act to supplement the specific orders implementing the recommendations of a boundary review. The volume of work and detail involved in transacting reorganisation of local government warrants the use of a delegated power and need for regulations. Such instruments are essentially administrative in their nature and concerned with ensuring effective change and continuity of local government provision. Unless a regulation or order is effecting a structural change or establishing a joint authority for two or more local government areas, the 1992 Act has used a negative procedure.

(3)   Section 20 LGA 1992

Those public bodies affected by an order can make agreements with regard to any property, income, rights and liabilities between themselves and any other party to an agreement. Local authorities affected by an order can thus seek to agree terms with those parties with whom they have a legal relationship that may be upset by the order. Where such parties cannot agree how to proceed there is a power under section 20(3) for disputed matters to be referred to arbitration. Where the parties cannot agree on the arbitrator, the Secretary of State is given the power to appoint one.

(4)  Section 21 LGA 1992

Where there is a Boundary Committee recommendation for a function of any authority as a result of a structural change to be carried out under joint arrangements, the Secretary of State is given a specific order making power in certain circumstances for the creation and operation of a joint authority in the areas of the authorities concerned. Such an order requires use of the affirmative procedure reflecting the relative importance of the structural change involved.

(5)  Section 22 LGA 1992

This provision enables the Secretary of State by order to create residuary bodies for the purpose of taking over any property, rights or liabilities and any related functions of local authorities which cease to exist by virtue of an order made under clause 15(2).

(6)  Section 23 LGA 1992

This provision allows for the setting up of staff commissions by order of the Secretary of State. The need by this means to provide for staffing issues arising out of local government reorganisation is well established.

(7)  Section 26 LGA 1992

  This section contains requirements for any orders, regulations and directions made under clause 16 for the purposes of Part 2 of the Bill. It includes provisions giving flexibility to make different provision for different cases and a limited Henry VIII power for the purpose of making incidental, consequential, transitional or supplementary provision. There is a limited 'correction' power if a mistake cannot be corrected under the implied power to amend.

Orders and regulations made under ss. 19, 21 and 22 of the 1992 Act

Local Government Changes for England Regulations 1994 (S.I 1994 No.867)

Local Government Changes for England (Finance) Regulations 1994 (S.I 1994 No. 2825)

Local Government Changes for England (Calculation of Council Tax Base) Regulations 1994 (S.I 1994 No. 2826)

Local Government Changes for England (Collection Fund Surpluses and Deficits) Regulations 1994 (S.I 1994 No. 3115)

Local Government Changes for England (Direct Labour and Service Organisations) Regulations 1994 (S.I 1994 No. 3167)

Local Government Changes for England (Finance, Miscellaneous Provisions) Regulations 1994 (S.I 1994 No. 3223)

Local Government Changes for England (Community Charge and Council Tax, Administration and Enforcement) Regulations 1995 (S.I 1995 No. 247)

Local Government Changes for England (Property Transfer and Transitional Payments) Regulations 1995 (S.I 1995 No. 402)

Local Government Changes for England (Staff) Regulations 1995 (S.I 1995 No. 520)

Local Government Changes for England (Non-Domestic Rating, Alteration of Lists and Appeals) Regulations 1995 (S.I 1995 No. 623)

Local Government Changes of England (Community Charge and Council Tax, Valuation and Community Charge Tribunals and Alteration of Lists and Appeals) Regulations 1995 (S.I 1995 No. 624)

Local Government Changes for England (Miscellaneous Provision) Regulations 1995 (S.I 1995 No. 1748)

Local Government Changes of England (School Reorganisation and Admissions) Regulations 1995 (S.I 1995 No. 2368)

Local Government Changes (Rent Act) Regulations 1995 (S.I 1995 No. 2451)

Local Government Changes for England (Property Transfer and Transitional Payments) (Amendment) Regulations 1995 (S.I 1995 No.2796)

Local government Changes for England (Finance) (Amendment) Regulations 1995 (S.I 1995 No. 2862)

Local Government Changes for England (Collection Fund Surpluses and Deficits) Regulations 1995 (S.I 1995 No. 2889)

Local Government Changes for England (Payments to Designated Authorities) (Minimum Revenue Provision) Regulations 1995 (S.I 1995 No. 2895)

Local Government Changes for England (Local Management of Schools) Regulations 1995 (S.I 1995 No. 3114)

Charter Trustees Regulations 1996 (S.I 1996 No.263)

Local Government Changes for England (Property Transfer and Transitional Payments) (Amendment) Regulations 1996 (S.I 1996 No. 312)

Local Government Changes for England (Miscellaneous Provision) Regulations 1996 (S.I 1996 No. 330)

Local Government Changes for England (Staff) (Amendments) Regulations 1996 (S.I 1996 No. 455)

Local Government Changes for England (Housing Benefit and Council Tax Benefit) (Amendment) Regulations 1996 (S.I 1996 No. 547)

Local Government Changes for England (Finance) (Amendment) Regulations 1996 (S.I 1996 No. 563)

Charter Trustees (Amendment) Regulations1996 (S.I 1996 No. 610)

Local Government Changes for England (Amendment) Regulations 1996 (S.I 1996 No. 611)

Local Government Reorganisation (Amendment of Coroners Act 1988) Regulations 1996 (S.I 1996 No.655)

Local Government Changes for England (Magistrates' Courts) Regulations 1996 (S.I 1996 No. 674)

Local Government Changes for England (Finance-Social Services Grants) Regulations 1996 (S.I 1996 No. 691)

Local Government Changes for England (Education) (Miscellaneous Provisions) Regulations 1996 (S.I 1996 No. 710)

Local Government Changes for England (Direct Labour and Service Organisations) (Amendment) Regulations 1996 (S.I 1996 No. 1882)

The Local Government Changes for England (Sheriffs) Order 1996 (S.I 1996 No.2009)

Local Government Changes for England (Collection Fund Surpluses and Deficits) (Amendment) Regulations (S.I 1996 No. 2177)

Local Government Changes for England (Property Transfer and Transitional Payments) (Amendment) (No.2) Regulations 1996 (S.I 1996 No. 2825)

Local Government Changes for England (Capital Finance) (Amendment) Regulations 1996 (S.I 1996 No. 2826)

Local Government Changes for England (Valuation Community Charge Tribunals) Regulations 1997 (S.I 1997 No. 75)

Local Government Reorganisation (Representation of the People) Regulations 1997 (S.I 1997 No. 138) (amend RPA 1985)

Local Government Changes for England (Transport Levying Bodies) Regulations 1997 (S.I 1997 No. 165)

Local Government Changes for England (Council Tax) (Transitional Reduction) Regulations 1997 (S.I 1997 No. 215)

Local Government Changes for England (Housing Management) (Miscellaneous Amendments) Regulations 1997 (S.I 1997 No. 2734)

Combined Fire Authorities (Protection from Personal Liability) (England) Regulations 1997 (S.I 1997 No. 2819)

Local Government Changes for England (Valuation Tribunals) Regulations 1997(S.I 1997 No. 2954)

Local Government Changes for England (Council Tax) (Transitional Reductions) Regulations 1998 S.I 1998 No.214)

Local Government Reorganisation (Amendment of Coroners Act 1988) Regulations 1998 (S.I 1998 No. 465)

Local Authorities (Capital Finance) (Amendment No 3) Regulations 1998 (S.I 1998 No. 1937)

Combined Fire Authorities (Secure Tenancies) (England) Regulations 1998 (S.I 1998 No.2213)

Local Government Changes for England (Council Tax) (Transitional Reduction) Regulations 1999 (S.I 1999 No. 259)

Local Government Staff Commission (England) Order 1993 (S.I 1993 No. 1098)

Local Government Staff Commission (England) (Winding Up) Order 1998 (S.I 1998 No. 898)


 
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