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Legislative Reform (Local Authority Consent Requirements) (England and Wales) Order 2007

Volume 697: debated on Thursday 13 December 2007

rose to move, That the Grand Committee do report to the House that it has considered the Legislative Reform (Local Authority Consent Requirements) (England and Wales) Order 2007.

The noble Baroness said: I am delighted to introduce the draft Legislative Reform (Local Authority Consent Requirements) (England and Wales) Order 2007. We are in pioneering territory and doing things for the first time often has its hazards. This is the first order to be made under the Legislative and Regulatory Reform Act 2006. It has been laid in draft and has been considered and reported on by the Delegated Powers and Regulatory Reform Committee of your Lordships’ House and the House of Commons Regulatory Reform Committee.

The House of Commons committee suggested some small clarifying amendments to the footnotes and Explanatory Notes, but recommended that the draft order should proceed. The Delegated Powers and Regulatory Reform Committee of your Lordships’ House made three main recommendations. The first, and perhaps most significant, is the recommendation that the procedure applying to this draft order should change from the proposed affirmative resolution to super-affirmative. Noble Lords stated in their report of 23 November that they made this recommendation because they needed to correspond further with the Government about the draft order and because they considered that they might wish to propose amendments. This has been done.

Their second recommendation is that the draft order should be amended so as not to include metropolitan district councils in the cancel-out provision, which I will discuss in further detail later. The final recommendation was a change to the recitals in the draft order—that is; the statements at the beginning of the order—where it was felt that the reference to consent of the National Assembly for Wales required some clarification in technical legal terms. As a result, I am now pleased to have the opportunity to invite Members of the Committee to consider the draft order so that my department may take account of these considerations in laying any future draft of the order.

I should like to say something about the background. The aim of the draft order is to assist in giving local authorities greater freedom to take local decisions to improve public services and provide better community leadership for local people. There are a number of activities carried out by local authorities which require the authority to seek consent from another body, which is usually, but not always, the Secretary of State, before the authority can take action within its own area. The draft order follows the Government’s commitment made in 2002 to deregulate several local authority consent requirements.

In September 2002, the then Office of the Deputy Prime Minister announced a programme of action to deregulate 84 of these consent requirements which had been identified. The four in this order were included in this programme of action, which was welcomed, because the Local Government Association said at the time:

“The LGA welcomes this government announcement. We have been pressing the government for some time about progress on consent regimes powers. This announcement on progress and further repeal should result in significant time savings for local authorities”.

There are no other available vehicles through which to deregulate the consent requirements covered in these proposals.

The draft order allows the Government to remove statutory burdens which would otherwise need to be addressed through primary legislation. This provides the quickest option for removal as well as the most effective use of parliamentary time. Removing these consent requirements clearly supports this Government’s commitment to encourage simplification and deregulation. Of course, Members of the Committee will know, as we debated them fully in the Local Government and Public Involvement in Health Bill, that a major step is the new local area agreements to be agreed by June next year. The new set of 198 national indicators is stripped down from the original 1,200. These arrangements are derived from the 2006 Local Government White Paper when we spoke about giving local people and government more influence over improving their local communities. The order now amends legislation to four consent regimes that at present require local authorities in England and Wales to gain formal consent from the relevant Secretary of State, the Welsh Assembly Government or, in one case, the Attorney-General, before taking certain actions.

Once the order is enforced, it will remove from Section 4 of the Cancer Act 1939 the requirement for local authorities to obtain the Attorney-General’s consent before instituting prosecutions for publishing certain cancer treatment advertisements. Removing the reference to the Attorney-General might have suggested that there was no further discretion to prosecute. To make that clear, the amendment of the Cancer Act also makes it clear that specified local authorities will have the discretion whether to prosecute in any case.

Secondly, the order removes from the Local Government Act 1972 the need for a local authority to obtain consent from the Secretary of State for and the approval of the Welsh Assembly Government of a resolution allowing it to amalgamate taxing licensing zones. Thirdly, it will remove from the Local Government (Overseas Assistance) Act 1993 the need to obtain consent from the Secretary of State to provide assistance to bodies engaged overseas in carrying on any of the activities of local government. Finally, it removes from the Education Act 1996 the requirement on local education authorities to seek the Secretary of State’s approval of their arrangements for dealing with complaints about the curriculum in pupil referral units. One provision to repeal Section 71(2) and (3) of the Local Government and Housing Act 1989 is not included in final draft of the order, although it was the subject of consultation. The repeal will still be carried out, however, as Section 71(2) is in Part V of that Act, and provision is made for the repeal of the whole of Part 5 in Part 12 of the Local Government and Public Involvement in Health Act 2007.

The committee reported on the draft order in its first report of this Session, and it made two principal recommendations for changes. The first was made in relation to the proposed amendments to the Cancer Act 1939, which requires a little detailed explanation. The amendments are made in Article 2 of the order. Article 2(a) repeals Section 4(6) of the Cancer Act 1939, which is the requirement for obtaining the Attorney-General’s consent before bringing proceedings. Article 2(b) goes on to substitute a new subsection (7) in Section 4, which says that any of the authorities listed may bring proceedings under that section.

One category of authority that is listed in new subsection (7) is a district council in England for an area without a county council—in other words, a metropolitan district council. Noble Lords will know that there are six metropolitan districts—Greater Manchester, Merseyside, South Yorkshire, Tyne and Wear, West Midlands and West Yorkshire—and 36 metropolitan district councils. At present, these councils have no duty at all to bring proceedings of this nature under the Cancer Act, even with the Attorney-General’s consent, because of the complicated interaction between this legislation and the Local Government Act 1985, which changed local government structures and abolished the metropolitan county councils but sadly did not transfer the duty of prosecuting under the Cancer Act to metropolitan district councils.

The draft order sought to address the issue by extending the power to prosecute to metropolitan district councils, too. I am pleased to say that the committee agreed that the changes proposed in Article 2 of the order remove a burden from local authorities and from the Attorney-General, because the amendments remove the requirement on local authorities to obtain his consent before instituting proceedings, and remove the burden on the Attorney-General to provide such consent. Instead, local authorities will exercise their own discretion whether to prosecute. We fully acknowledge that although the committee was convinced by the scope of the amendment, it did not feel that the power under the Legislative and Regulatory Reform Act 2006 to extend those changes to metropolitan district councils existed legally.

To explain further, my department and the Department of Health, which has primary responsibility for Cancer Act legislation, took the view that the extension of powers to metropolitan district councils could roughly be analysed as the removal of an administrative inconvenience for the purposes of Section 1(3)(b) of the Legislative and Regulatory Reform Act 2006. Under that section, the sort of burden that may be removed by a legislative reform order includes an administrative inconvenience.

The committee noted in paragraph 43 of its report that it may be sensible as a matter of policy to remove the small anomaly of the provisions not applying to metropolitan district councils. Sadly, perhaps, it did not agree that the absence of a power to prosecute was an administrative inconvenience within the definition of “burden” in the 2000 Act, and recommended that the draft order should be amended so that it did not extend the Cancer Act provisions to metropolitan district councils. My officials, and those in the Department of Health, which has primary responsibility for the Cancer Act legislation, have closely considered the committee's recommendation on that point, and are prepared to accept it on the basis that the Government will be able to address the issue relating to metropolitan district councils through another legislative vehicle.

I turn to the committee’s other recommendation. This was a change to the recitals in the draft order, the statements at the beginning of the order, where it was felt that the reference to consent of the National Assembly for Wales required some clarification in technical and legal terms. It is correct that the consent of that Assembly was obtained, as recited in the draft order. However, that Assembly as it was constituted prior to the Government of Wales Act no longer exists. The Government of Wales Act came into force in May 2007, as the Committee will be aware. It transferred some functions of the National Assembly for Wales, as it was constituted prior to the Act, to Wales Ministers and made related transitional and other provisions. That accounts for changes in the terminology used in the preparation of the order after May. There are also some additional legislative implications that are being addressed by the Welsh Assembly Government and by the National Assembly, as constituted following the Government of Wales Act 2006.

I am content to accept the recommendation that the recitals in the draft order be clarified in that respect. My officials are engaging fully with their Welsh colleagues in order to finalise that. In conclusion, I am content to accept the recommendations of the Delegated Powers and Regulatory Reform Committee and invite any further recommendations in relation to the draft order 2007 to be made. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Legislative Reform (Local Authority Consent Requirements) (England and Wales) Order 2007. First Report from the Regulatory Reform Committee.—(Baroness Andrews.)

I am very pleased to hear the reactions of the Minister and the statement of the Government's intentions. I very much welcome them. I still want to speak for a few minutes in this debate in my capacity as chairman of the Select Committee on Delegated Powers and Regulatory Reform. I do so with the approval of the committee and am very pleased to see two members of the committee present this afternoon in what is otherwise a rather thin audience.

This is the first legislative reform order made under the Legislative and Regulatory Reform Act 2006—something of a tongue-twister; I will in future refer to it as the 2006 Act. It is appropriate for me to put on record and explain to the Committee how the Delegated Powers and Regulatory Reform Committee intends to exercise its powers, and to explain how the general principles apply to the order. I do not expect that there will be a need for the chairman or another representative of the DPRR Committee to speak often on future occasions.

The first step for the committee is to decide which of the three procedures available under the 2006 Act it considers appropriate for the draft order: the negative resolution procedure under Section 16; the affirmative resolution procedure under Section 17; or the super-affirmative procedure under Section 18. The committee is unlikely frequently to accept a proposal that the negative resolution procedure should be applied. That is because legislative reform orders—LROs—will almost always involve changes to primary legislation; that involves the exercise of the Henry VIII power. Also, it is a well established principle that Henry VIII powers that are conferred by secondary legislation normally need the affirmative resolution procedure. There are occasional exceptions to this; no doubt there will be occasional cases in which a negative resolution procedure would be appropriate under the 2006 Act.

The affirmative resolution procedure is likely to be the standard procedure where the LRO is straightforward and is not likely to need or call for amendment. Where the committee believes that an amendment to the order may be required—as in this case—or that the House may wish to have an opportunity to amend the order, even if the committee does not press for that, it is likely to recommend the super-affirmative procedure.

In this case, as the Minister pointed out, the order involves amendments to four unconnected Acts: the Cancer Act 1939, the Local Government Act 1972, the Local Government (Overseas Assistance )Act 1993 and the Education Act 1996. The Cancer Act involved two distinct points: the removal of the need for the consent of the Attorney-General for a prosecution, which does not, in our view, raise any difficulties; and the extension of the Act to areas in which there is currently no power for a local authority to prosecute. I do not know how many prosecutions are brought under this Act; I suspect not very many.

The committee needs to be satisfied, under Section 1 of the 2006 Act, first, that the purpose of the draft order is to remove burdens—or a burden or to reduce a burden—and, secondly, that the conditions specified in Section 3(2) can reasonably be regarded as being satisfied. When the draft came before the committee, we were concerned that some of the tests under subsection (2) might not be satisfied and we were concerned about the point about the Cancer Act 1939, which has already been mentioned. We therefore called, under Section 15(6) of the 2006 Act, for the super-affirmative procedure.

Following further correspondence with the department, the committee was satisfied on all but one substantial point. I do not deal with the point about the amendment to the recitals, which is a minor and highly technical point. The only outstanding point of significance was whether the proposal about local authorities that do not now have the power of prosecution under the Cancer Act 1939 involved the removal of a burden.

The background to that has been explained. At the time of the 1939 Act, all parts of England and Wales were within either county councils or county borough councils. In 1985, following the abolition of metropolitan county councils by the Local Government Act 1985, that ceased to be the case. As a result of what was plainly an unintended oversight, powers under the Cancer Act were not transferred to the metropolitan district councils, so no power to prosecute for a crime under that Act can be prosecuted in that district.

Under the Regulatory Reform Act 2001, which was repealed by the 2006 Act, there was a power by order not only to remove a burden but to correct an anomaly. The absence of the power, in some cases, to prosecute breaches of the Cancer Act was plainly an anomaly which could have been corrected under the 2001 Act had it still been in force. Unfortunately, however, there is no reference to anomalies in the 2006 Act, perhaps because the need for such a reference was overlooked in the course of making the extensive amendments to its Bill in its late stages.

The Government have therefore argued that the extension of the Cancer Act to operation in areas where it cannot now be operated could be the removal or reduction of a burden. A “burden” is defined in Section 1(3) of the 2006 Act, which says:

“In this section “burden” means any of the following—

(a) a financial cost;

(b) an administrative inconvenience;

(c) an obstacle to efficiency, productivity or profitability; or

(d) a sanction, criminal or otherwise, which affects the carrying on of any lawful activity”.

The committee felt that the absence of a power for a local authority to do something which might confer a benefit on the residents but would involve additional work and expense for the local authority itself could not reasonably be regarded as a “burden” within the meaning of Section 1(3); nor could the creation of that power be regarded as a removal of the burden. Indeed, if the absence of a power to do something you would like to do is an “administrative inconvenience”, that would greatly expand the operation of the Bill—which was the subject of considerable debate and substantial amendment, as I have already said.

Faced with this situation, the committee had options. One would have been to allow the draft order to go forward as it stood, leaving it for a judge to decide in future whether the amendment to Section 4(7) of the Cancer Act—which extends the power of prosecution—was intra vires. Leaving the decision ultimately to be taken by the judge might be a reasonable course of action in a case where there is doubt as to the vires of the changes to be made by the order but a good or at least reasonable chance that they would be held to be valid. In this case, the committee felt that it would be unlikely that an amendment to Section 4(7) could be regarded as the removal or reduction of a burden. We also had in mind that other courses of action appear available to correct this anomaly, particularly through the use of existing powers under the Local Government Act 1985 to make consequential amendments.

We therefore decided to recommend that the order should be amended to remove the extension of powers to prosecute under the Cancer Act. We do not question that an extension is desirable. However, that does not justify putting an unreasonably wide definition on the word “burden”. We are, as I originally said, grateful to the Government for accepting this view. We look forward to them duly correcting this anomaly by other means.

I congratulate the Minister and her department on being the first to come forward with an order under the Legislative and Regulatory Reform Act 2006, and welcome the start of the process of removing some of the consent requirements from local authorities. It says something about the centralised state in which we live that we regard removing the need to have the Secretary of State’s approval for hackney carriage licence changes as a step for devolution.

We must accept that the four changes proposed here are a fairly modest start. I would like to say that amending Section 1 of the Local Government (Overseas Assistance) Act 1993 is a hot topic in the pubs of Needham Market, but it is not. It is interesting to reflect on the fact that when you ask why on earth this is in statute, it was a reflection of a real concern at the time: that local authorities were spending vast quantities of taxpayers’ money swanning around all over the world. It was felt necessary to curb them by having primary legislation. I do not agree with that view, but nevertheless it is interesting to reflect that there always was a reason why the burdens were there in the first place.

Although I am no longer a member of the Delegated Powers and Regulatory Reform Committee, I always feel comforted that it keeps a beady eye on these things to ensure that the original purpose is no longer required or that the matter is covered in some other way. Equally, I agree with my noble friend that it is important as a matter of principle that changes to primary legislation should be made by affirmative or super-affirmative procedure because many of these will have been hotly debated on the Floor of the House when the original legislation was going through. It is extraordinary that we can make changes with virtually no one being interested.

I wonder whether the noble Baroness can say something about the process. While I have no comments on the issues here—certainly all the responses I have read have been in favour of these changes—I am interested in how long it will take to work through the 84 that have been identified. I recognise that that is difficult because some of them will come through as amendments to primary legislation, and some will be taken through this procedure. Can she say how long it might take?

Can she also say something about the process of the Government responding to other consent regimes which people bring to their attention? I note from the responses that local authorities have raised other parts of legislation that might helpfully be removed.

Finally—I say this more in hope than expectation—I wonder whether we are as confident as we can be that when new legislation is passed we are not stacking up work for the successor of my noble friend, Lord Goodhart. I can see that there is a strong tendency to introduce central control and central measures. I can understand why; there is an old proverb that says if you have a hammer all problems look like nails. We tend to get rather a lot of that and I suspect that much of what we hotly debate in your Lordships’ House now will be deregulated in a few years’ time. How much better it would be if we did not have it in the first place.

Not for the first time, I am grateful to the noble Baroness for her home-spun Suffolk wisdom. I am grateful that the noble Lord took the time and trouble to put the full reasoning of the committee on the record, because that is important. We have done this for the first time and it has shown in our department’s response as well. I note from the correspondence that has gone back and forth between the department and the committee that—I shall not say there was a certain acerbity, but it was an interesting process. As the process evolves, other departments will learn from our experience, which is as it should be.

The noble Lord raised the issue of the number of prosecutions, and I can confirm that there have been 11, which were not all successful, so he is right that there have been very few. He also referred to the potential of using other legislation to achieve the same effect, and mentioned the Local Government Act 1985. The jury is still out on which would be the best vehicle, so the department is looking at it closely.

The noble Baroness, Lady Scott, was tempted to have a much bigger debate. She opened the door just a crack on the issue of centralisation and burden. I am tempted to send her the 20 departmental simplification plans published on Tuesday 11 December—no one can say they are not up to date—showing how we can reduce burdens on business. For example, in the public sector there are 280 different ways with total net administrative savings of £800 million. The order is an important step forward as a proportionate response in managing change, but it is only one of a number of instruments at our disposal. There is a lot going on, as the noble Baroness said.

In terms of what happens next, of the 84, 62 consents have been deregulated so far: most of them have been removed. There is the one that we have been debating today and there are four that have completed their consultation and are expected to be introduced to Parliament this Session. Looking at them, it is interesting how wide is the range of issues. They include changes to the individual voluntary arrangement, insolvency services, merger of the Health and Safety Commission and the Health and Safety Executive and second insolvency and individual voluntary arrangements. We are working through that list. I do not think that any of us could hazard how long it will take to get through them all, but that gives us a good idea.

The noble Baroness also asked about other consent regimes. I cannot answer that; it is not within the scope of my extensive briefing; but I am happy to write to her with an answer on that.

I am very grateful to noble Lords, both for their welcome for the Government's response and for the rigorous, intense process, which is full of integrity. I am sure that it will help us to achieve better government.

On Question, Motion agreed to.