Supplementary Memorandum by the Department
of the Environment, Transport and the Regions
1. The Delegated Powers and Deregulation Committee
has already given its opinion on the Local Government Bill in
its report of 15 December (HL Paper 16 (Session 1999-2000: 2nd
Report)). On Part II of the Bill, it concluded that the House
should consider whether the power on clause 10(5) should be exercised
only after consultation with local authorities and with their
consent. This was the only comment on Part II.
2. However, the Department's Memorandum to the
Committee recognised that a number of the enabling powers in the
Bill could develop further and a number of specific developments
were foreshadowed in the Government's response to the report of
the Joint Committee (Cmnd 4529) which reviewed the draft Bill.
3. Government amendments have now been tabled
on Parts II and V of the Bill for the Committee stage. A numbered
copy of the amendments as they were offered to the Public Bills
Office is attached [not printed] and the rest of this Memorandum
uses that numbering. (In the event, the PBO took the view that
six of the amendments were trivial matters which could be picked
up in printing if the House approves the associated amendments).
4. This further Memorandum to the Committee deals
with those powers that would, if the House makes such amendments,
change from their current shape in the introduction print of the
Bill and those which would be new powers.
TYPE OF PARLIAMENTARY SCRUTINY
5. Where the amendment proposes a revision to
one of the powers already in the Bill, the form of Parliamentary
scrutiny remains the same as in the introduction print of the
Bill. Those powers are:
- Discharge of functions (clause 11, amendment
8) in forms of constitution set out in clause 10;
- Petitions (clause 22, amendments 75, 79, 80,
91 and 92);
- Power to direct referendums in circumstances
set out in regulations (clause 23, amendments 105 and 106);
- Guidance (clause 24, amendment 109); and
- Allowances (clause 66, amendment 121).
6. However, there are also the following new
- Discharge of functions (first new clause after
clause 14, amendment 39) in forms of constitution provided for
by regulations under clause 10(5);
- Discharge of functions by area committees (second
new clause after clause 14, amendment 40);
- Discharge of functions by another authority (third
new clause after clause 14, amendment 41);
- Joint exercise of functions with another authority
(fourth new clause after clause 14, amendment 42);
- Access to meetings and information (new clause
after clause 15, amendment 54);
- Consultation and content of proposals (clause
18, amendments 57, 58 and 60);
- Deadline for proposals (clause 18, amendment
- Fall-back proposals (clause 19, amendment 68);
- Changing executive arrangements (clause 21, amendment
- Alternative arrangements for fall-back options
(first new clause after clause 21, amendment 72);
- Changing alternative arrangements (second new
clause after clause 21, amendment 73);
- Power to order similar referendums to be held
by a number of authorities (first new clause after clause 23,
- Information on constitutions (second new clause
after clause 23, amendment 108;
- Elected mayors (clause 25, amendment 111); and
- Assistants (schedule 1, amendment 135).
7. The Government has adopted the same criteria
in determining its proposals for the Parliamentary scrutiny of
instruments made under these powers as was adopted for those in
the introduction print of the Bill. Where an instrument is likely
to have a material impact or contain significant modifications
to primary legislation (or secondary legislation subject to the
draft affirmative procedure) it is proposed that that instrument
should be subject to the draft affirmative procedure. The only
one of these new powers which falls into this category, in the
Government's view, is that proposed in the first new clause after
clause 21 (amendment 72).
8. The proposed amendments also include some
powers for the Secretary of State to make directions. These are
to be found in amendments 58, 60, 68, 94 and 108. They cover circumstances
in which Government wishes the Secretary of State to have the
power to react to developing local circumstances in a defined
way or where the power covers a point of largely administrative
9. It is proposed that the remaining powers sought
in these amendments should be subject to negative resolution.
ARRANGEMENTS FOR WALES
10. All the proposed or amended powers will be
exercisable by the National Assembly for Wales.
Discharge of functions (clause 11)
11. Amendment 8 substitutes a new clause for
clause 11. The new clause has modified regulation making powers
and a new power (in subsection (12)) which was foreshadowed in
the Department's original Memorandum to the Committee (paragraphs
84 to 86).
12. The reshaping of this clause was necessary
to give full effect, in the light of the complexity of some provisions
in the statute book relating to the discharge of local authority
functions, to the policy set out in Local leadership local
choice (Cmnd 4298). Broadly, that is that the full council
should set the budget and policy of the authority, that the executive
should propose them, and that it should implement them - except
for planning and licensing functions.
13. As the Department indicated in its original
Memorandum, the large number of functions involved, and the frequency
with which they change, means that regulations provide the only
realistic mechanism for these provisions. In view of the largely
administrative and technical nature of these, the Government takes
the view that the negative resolution procedure is appropriate.
Discharge of functions under new forms of executive
14. Amendment 39 introduces a new clause which
enables the Secretary of State to make regulations which define
how any executive provided for under clause 10(5) may set out
its delegations and operate. The key features of the new form
of executive will be set out in the regulations under clause 10(5),
which are subject to the draft affirmative procedure. Regulations
under this provision would make consequential provision equivalent
to provisions of clauses 12 to 14. The Government therefore believes
the negative resolution procedure would be appropriate to this
15. Amendment 40 introduces a new clause which
will enable the Secretary of State to make regulations enabling
delegation of functions of an executive to area committees of
that authority. It will also, if necessary, enable the Secretary
of State to place some constraints on the ability of executives
to delegate in this way if the clear accountability of the executive
for its functions would otherwise be at risk.
16. This arrangement was foreshadowed in the
Department's original Memorandum to the Committee (paragraphs
158 to 161). As detailed technical provisions will be necessary
to deliver the policy the Government believes they are appropriate
to regulations subject to the negative resolution procedure.
Discharge of functions by another authority
17. Amendment 41 introduces a new clause containing
powers to enable an executive of a local authority to delegate
the discharge of functions to another authority and making provision
with respect to how those functions should be discharged, depending
upon whether they are executive functions and whether either or
both authorities are operating executive arrangements.
18. The provisions will be complex but are merely
designed to ensure that authorities operating executive arrangements
under this legislation may continue to act in ways that are possible
now under section 101 of the Local Government Act 1972. The Government
therefore believes the negative resolution procedure would be
appropriate to this power.
19. Amendment 42 introduces a new clause containing
a power to make regulations to govern the joint exercise of functions
by local authorities one or more of which are operating executive
arrangements. The nature of and reasons for these provisions will
be similar to those under the power discussed above. The Government
therefore believes the negative resolution procedure would also
be appropriate to this power.
Access to information
20. Amendment 54 inserts a new clause which enables
the Secretary of State to make regulations about the access to
information regime which would apply to meetings of the executive
and its committees and to decisions taken by individual members
of the executive. The regulations would relate to public access
to meetings of the executive, to the recording and publishing
of executive decisions, the reasons for those decisions and the
background papers considered by the executive in reaching its
decisions. The regulations would also be able to provide for an
offence relating to the failure to ensure a decision is properly
recorded or to ensure that such a record was made publicly available.
21. The purpose is to make provision based very
closely on Part VA of the Local Government Act 1972 but which
makes provision for access to the information mentioned in the
previous paragraph to councillors outside the executive and to
the public to ensure that decision taking is transparent and accountable.
22. The regulations will provide for minutes,
papers, background papers, records of decisions and the reasons
for those decisions to be made publicly available. The proposed
criminal offences will also relate very closely to that in Part
VA of the Local Government Act 1972 which applies in cases where
public access is obstructed to such documents or where the public
is refused copies of documents. However, an offence is proposed
where an individual councillor who has taken a decision fails
to ensure that is recorded as otherwise there would be no record
and, possibly, no public knowledge of the decision.
23. The Government considers that such provisions,
although important and extensive would be constrained closely
in terms of scope. They would entail either replication or detailed
and technical amendment of particular existing statutory provisions.
The Government therefore believes that the negative resolution
procedure is appropriate to these regulations.
Consultation and content of proposals (Clause
24. Amendments 58 and 60 allow the Secretary
of State to make directions specifying certain matters which authorities
must include in their proposals for executive arrangements.
25. Any such directions would be general to all
local authorities, rather than specific to individual councils.
For example, they might specify that all proposals must set out
the arrangements for overview and scrutiny. The purpose behind
these directions would be to leave authorities flexibility over
precise details but to ensure that proposals contain standard
core information to allow the local electorate to make an informed
decision during consultation and at a referendum on those proposals.
26. This is primarily a matter of good administrative
practice and due process. The Government therefore believe that
the use of powers of direction is appropriate.
Deadline for proposals (Clause 18)
27. Amendment 61 adds a new subsection to the
clause which would enable the Secretary of State to specify by
order a date by which all councils must make proposals for executive
arrangements. This power was foreshadowed in paragraphs 162-163
of the previous memorandum.
28. This power would be expected to be used only
where experience showed that certain councils were failing to
discharge their legal duty to draw up proposals in a timely fashion
and that the aim of the Bill to achieve more efficient, transparent
and accountable local government was thereby not being brought
29. There is no intention at present to use such
a power unless it becomes clear that a significant number of councils
are being dilatory in, or refusing to, bring forward proposals
for executive arrangements. Given that the power is to ensure
that authorities comply with an existing statutory duty by setting
a date, the Government believes an order subject to negative resolution
Fall back proposals (Clause 19)
30. The Joint Committee which reported on the
draft Local Government (Organisation and Standards) Bill recommended
that steps be taken to ensure that the implication of a no vote
in a referendum under the legislation was clear to those voting
in any such referendum. This provision relates to the definition
of a fall-back - i.e. a statement of what the authority will do
in the case of a no vote. Amendment 68 contains two new powers
for the Secretary of State to give directions as to what must
be contained in fall back proposals.
31. These parallel amendments 58 and 60 which
relate to the principal proposals and would be used in a similar
fashion to ensure that proposals contained sufficient detail to
allow the local electorate to make an informed choice about the
proposals. The Government believes that the power to make directions
is appropriate for the reasons given on the similar powers above.
Changing executive arrangements (Clause 21)
32. Amendment 71 replaces clause 21 of the Bill.
It introduces a new clause which provides a power for the Secretary
of State to make regulations to enable local authorities operating
executive arrangements to change to different executive arrangements.
33. The Government has decided that more flexible
provisions than those in the existing clause 21 are desirable.
Under the replacement clause, regulations may make provision in
relation to changes from, to or within any form of executive,
including any form which might be made available under clause
34. The regulations made under this provision
will be largely technical, setting out the steps to go through
if different types of change to executive arrangements are sought
by an authority. The Government believes that regulations subject
to the negative resolution procedure are appropriate.
Alternative arrangements for fall-back options
35. Amendment 72 introduces a new clause which
enables the Secretary of State to make available alternative arrangements
for the discharge of their functions and which are not available
under clause 10.
36. The power is a power to make available alternative
arrangements which the Secretary of State considers likely to
ensure that local authority decisions are taken in an accountable
and efficient way. This is to ensure that all authorities move
to arrangements which meet the aims of the Bill to provide greater
efficiency, transparency and accountability.
37. The arrangements provided for under this
power would only be used in the event of a referendum rejecting
a proposal for a directly elected mayor and the fall-back not
being a form of executive arrangement. However, these regulations
could include significant amendments or modifications to primary
legislation, they could be wide-ranging and they would make available
a new way of taking decisions in local authorities which may be
adopted in a number of authorities. The Government therefore proposes
that such regulations should be subject to the draft affirmative
Operating alternative arrangements
38. Amendment 73 introduces a new clause which
concerns the operation of alternative arrangements. It includes
two regulation-making powers.
39. The first, at subsection (4), allows the
Secretary of State to make regulations where an authority wants
to change its alternative arrangements set out in regulations
under amendment 72. The purpose of this power is to enable authorities
to make such changes.
40. The second power, in subsection (5), relates
to a decision by an authority to move from these alternative arrangements
to a form of executive arrangements under section 10. It would
allow the Secretary of State to make any provisions necessary
to facilitate such a move relating to such matters as the drawing
up of proposals, consultation, publicity requirements etc.
41. Such regulations will only be made as a consequence
of any authority operating alternative arrangements approved by
the Secretary of State in line with regulations under amendment
72 and will be procedural in nature. The Government therefore
believes that the negative resolution procedure is appropriate.
Petitions (Clause 22)
42. Amendments 75, 79, 80, 91 and 92 make substantive
amendments to clause 22, and modify the regulation making power
in the clause.
43. The purpose of this power remains the same,
however, in that it requires a local authority to hold a referendum
where it receives a petition signed by at least 5% of the local
electorate requesting a directly elected mayor. However, the proposed
amendments will make the provision more flexible with respect
to the petition proposition and the calculation of the 5% figure
and associated steps such as publicity. This power was foreshadowed
in paragraphs 104-106 of the earlier memorandum.
44. The power of the Secretary of State to specify
the minimum number of electors who must support a petition cannot
be used to provide for a number greater than 5% of local government
45. The amendment also enables these regulations
to specify a form of petition which does not involve a paper-based
petition, as foreshadowed in paragraph 107 of the earlier memorandum.
The Government appreciates that appropriate technology is not
yet available and therefore 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
46. The Regulations will also allow the Secretary
of State, in effect, to act in the place of the authority with
respect to requirements placed upon them by virtue of those regulations,
where they are failing or refusing to act on a valid petition.
This is necessary as an authority is, under this clause of the
Bill, being required to take steps involuntarily and in the absence
of this power, the only recourse would be through the courts.
47. These provisions will require amendment in
future, once rolling electoral registration is in place, for example.
They are also primarily procedural and technical. The Government
therefore believes that regulations subject to negative resolution
Directions (Clause 23)
48. Amendment 94 enables 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. This was foreshadowed in the Department's
original Memorandum to the Committee (paragraphs 120 to 122).
49. 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 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,
50. Amendments 105 and 106 make substantive amendments
to clause 23, and modify the regulation making power in the Bill.
The amendments will allow the Secretary of State, in effect, to
act in the place of the authority with respect to requirements
placed upon them by virtue of those regulations, where they are
failing or refusing to act on a direction from the Secretary of
State. This is necessary as an authority is, under this clause
of the Bill, being required to take steps involuntarily and in
the absence of this power, the only recourse would be through
51. Given that the power is to ensure that authorities
comply with an existing statutory duty or the statutory guidance
issued under this Part (clause 24) by setting a date, the Government
believes that regulations subject to negative resolution is appropriate.
Secretary of State's power to require referendums
52. Amendment 107 introduces a new clause which
provides the Secretary of State with a power to make orders requiring
all authorities, or authorities of a description or class specified
in the order, to hold a referendum on any form of executive specified
in or under the Bill (as specified in the order).
53. This power was foreshadowed in paragraphs
123-126 of the original memorandum. This power is intended to
allow the Government to implement its policy as set out in paragraph
2.23 of its response to the Joint Committee report where it stated
"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.".
54. An order under this provision could also
allow the Secretary of State, in effect, to act in the place of
an authority with respect to requirements placed upon them by
virtue of that order, where they are failing or refusing to act
in accordance with that order. This may be necessary as an authority
may be required, under this clause of the Bill, to take steps
involuntarily and in the absence of this power, the only recourse
would be through the courts.
55. Unlike the power in clause 23 it is not constrained
by circumstances. However, it is intended to be capable of being
used only in respect of all authorities or a description or class
of authorities and not directly to individual authorities. It
can also only be used to require a referendum; not the implementation
of a particular form of executive arrangements in or under clause
10. The Government therefore believes that an order subject to
negative resolution is appropriate.
Information on constitutions
56. Amendment 108 introduces a new clause which
requires local authorities to bring together documents describing
their executive arrangements with certain other information into
a constitution. Subsection (1)(a) of the clause gives the Secretary
of State a power to make directions as to what information regarding
the discharge of functions must be included.
57. The purpose behind this provision is to ensure
that publicly available documents from each authority contain
standard core information to give local people clear knowledge
of how their local authority is making its decisions. This is
primarily a matter of good administrative practice and due process.
The Government therefore believes that the use of powers of direction
Guidance (Clause 24)
58. Amendment 109 modifies the power of the Secretary
of State to issue guidance.
Elected mayors (Clause 25)
59. Amendment 111 provides that elected mayors
are to be treated as councillors for the purpose of local government
legislation. This means that all the normal provisions relating
to the office of councillor (such as qualification, disqualification,
conduct etc.) will apply to elected mayors. However, there may
be some instances in existing legislation where it will not be
appropriate to treat the mayor as a councillor. The amendment
therefore includes a power for the Secretary of State to make
regulations to provide for those circumstances where the "mayor
as councillor" principle should not apply.
60. In view of the technical nature of this provision,
the Government believes that the negative resolution procedure
provides the most appropriate form of Parliamentary scrutiny.
Allowances (Clause 66)
61. Amendment 121 introduces a new clause in
place of clause 66. Clause 66 was included in the Bill as introduced,
as a "placeholder" for more detailed provisions to follow
by Government amendment. This was anticipated in the Department's
original Memorandum to the Committee (paragraphs 230 to 232).
The new clause makes amendments to the Local Government and Housing
Act 1989, including amendments to regulation making powers in
62. Amendment 135 introduces a new paragraph
into schedule 1 about assistants for elected mayors. This includes
a power for the Secretary of State to make regulations governing
the appointment of assistants and matters such as their terms
and conditions. The Government believes that regulations subject
to negative resolution are suited to this purpose.