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Byelaws (Alternative Procedure) (England) Regulations 2015

Volume 765: debated on Tuesday 27 October 2015

Motion to Consider

Moved by

That the Grand Committee do consider the Byelaws (Alternative Procedure) (England) Regulations 2015.

Relevant document: 3rd Report from the Joint Committee on Statutory Instruments

My Lords, I beg to move consideration of these regulations, which were laid before the House on 27 July. These regulations would put in place new localist arrangements for revoking by-laws, and a new decentralised process under a largely local process for making certain by-laws. This is part of the Government’s commitment to driving deregulation. The regulations reinforce and reflect the principles of localism, and that local authorities are best placed to determine by-laws for their community, in close engagement with interested and affected parties to help shape and inform the by-laws made.

It is worth summarising the key features of the new arrangements, if only to confirm the significant changes these new arrangements will put in place. The arrangements will involve the following: the local authority preparing a draft of the proposed by-law in consultation with affected and interested parties; the local authority undertaking a deregulatory assessment of the impact of the proposed by-law on businesses and citizens; the local authority preparing and publishing a deregulatory statement and submitting it to the Secretary of State; the Secretary of State having regard to the deregulatory statement and to any burdens resulting from increased regulation as part of giving consideration on giving leave to make the by-law; the local authority advertising and consulting on the proposed by-law; the local authority considering any representations received; the local authority deciding whether to make the by-law; and then, finally, making and publicising the by-law which would come into force one month after being made by the local authority.

Where a local authority wishes simply to revoke a by-law, it will be able to do so under an entirely local process, involving: making an assessment of the need for the by-law, on the basis of which it resolves to make the necessary by-law; preparing a draft of the proposed revoking by-law; advertising and consulting on the draft revoking by-law, including advertising in a local paper operating in the vicinity; considering any representations received; and then deciding within six months of the end of the consultation period whether to make the revoking by-law. Finally, it will then revoke the by-law.

By-laws are one way in which a local authority can address the concerns of local people and tackle problems in its area. These new arrangements will allow local authorities to take a more local approach to the process of making and revoking by-laws.

These regulations include safeguards against councils imposing unnecessary, excessive or burdensome by-laws. The safeguards also ensure that once local authorities have decided to make by-laws they implement them within six months of the end of the consultation. This will ensure that local authority by-laws are informed by up-to-date consultation and engagement with the public.

Part 6 of the Local Government and Public Involvement in Health Act 2007 gave the Secretary of State power to make regulations to put in place alternative arrangements for making by-laws. These provisions, inserted into the Local Government Act 1972, make provision about the procedure for the making, coming into force and revocation of certain by-laws. A by-law is a law made by a body, such as a local authority, under an enabling power established by an Act of Parliament and which has been confirmed by the Secretary of State. If validly made, by-laws have the force of law in the areas to which they apply.

I now turn to two points raised by the Secondary Legislation Scrutiny Committee: the delay in making these regulations, and that the Explanatory Memorandum makes no reference to these regulations having been withdrawn and subsequently relaid. We withdrew and relaid the regulations because we considered that they could be improved and refined, including making changes such as removing a requirement for a local authority to advertise the by-law after it had been made, which, on reflection, we considered burdensome.

On the delay in making the regulations, by-laws are important. On that basis it is important that any new arrangements are considered carefully. It was right that we took time to consider carefully the arrangements for making certain by-laws—by-laws that have a real, lasting and, we hope, positive impact on people.

I also take this opportunity to address concerns raised regarding the continued role of the Secretary of State in the new arrangements. The checks and balances in the new framework are there to ensure that by-laws do not create unnecessary or excessive burdens on the citizen, the community or local businesses. This will safeguard local authorities making by-laws that could be challenged in the courts on the basis that they are unreasonable. This is particularly important for those smaller town and parish councils that may not necessarily have access to legal resources that larger local authorities would have access to when drafting their by-laws.

If local authorities make by-laws that are proportionate and reasonable, this role will be a very light-touch one. The new framework contains the right arrangements to make proportionate by-laws for the benefit of the community. But let me be clear: the new arrangements that place the decision for making the by-laws with the local authority will allow the local authority, which knows its local area, to determine the significance of objections from people affected by the proposed by-law.

The new arrangements recognise that it will be local authorities, not the Secretary of State, that confirm new by-laws, recognising that local authorities are best placed to determine by-laws for their local community. The new arrangements no longer require a rubber stamp from central government to scrap outdated by-laws, reducing the current bureaucracy associated with a local authority wishing to revoke out-of-date by-laws. The new arrangements ensure that proportionate and robust by-laws are shaped and informed by engagement and consultation with the local community, recognising that where there are objections the local authority is best placed to consider representations from its community. I commend the regulations to the Committee.

I am grateful to the Minister, who must have laboured long and hard, burning the midnight oil to prepare the speech with which she launched this momentous set of regulations.

The Explanatory Memorandum deals with the impact of the regulations on business, charities and voluntary bodies and describes the impact as “negligible”. That is the judgment that I would make on the impact of the regulations on local government and communities: it is negligible. The noble Baroness rightly said that matters were set on foot in 2008. I have a vision of armies of civil servants in the Department for Communities and Local Government labouring over seven years to produce this momentous change in practice and in law, and I am tempted to echo the sentiments of Winston Churchill in remarking on the fact that probably never in the history of secondary legislative endeavour has so much labour been employed for so long and to such little effect—for very little changes under these regulations.

It is particularly important that the Government continue to reserve a role for the Secretary of State. My honourable friend Steven Reed in the debates in the Commons pointed out that the Welsh Assembly Government have dispensed with the role of the Minister and the Secretary of State in Wales. Curiously, Her Majesty’s Government went to court over these matters; they are usually critical of those who seek to take the decisions of Governments to court, but they took the Welsh Government to court and I am pleased to say that they lost over that decision to leave the Minister out of the picture altogether. True localism, I suggest, would make that course much the more desirable.

There is another issue that arises from the Explanatory Memorandum, which is that by-laws are not only made under the auspices of this department: there are other government departments which have responsibilities for by-laws. One might have thought that across government there would be some discussion about having a uniform system for by-laws. No attempt appears to have been made to do that. So we have at least a binary system, where one or more other government departments will still require the procedure for by-laws made under the local government legislation which these regulations are changing. Has it never occurred to Ministers that they should look across government and provide a uniform system? I have already indicated that this change does not amount to much, but it is surely better to have a uniform system, whatever its character, than to have two apparently parallel systems running side by side. Perhaps the noble Baroness would agree to take back this aspect at least, and try to ensure that there is a common approach across government.

Of course the Opposition are not opposed to this very modest change. In fairness, I do not think that it was envisaged to be all that ambitious when it was initiated by the original legislation, so I am not claiming this as a party point. It does seem sad, however, that it has taken this long to produce such a feeble change in the system, and perhaps we can have assurance that any further change will be made with a great deal more expedition.

I thank the noble Lord for his comments. I thought that he was going to say at the beginning of his speech that he congratulated me for saying “by-laws” so many times in one speech, because it seemed like I was saying it constantly.

One of the questions that he asked, quite reasonably, was why it has taken so long for the regulations to come into force, given that this was first discussed in 2007 and 2008. I understand that we have been refining the new by-law arrangements, including the deregulatory framework, to ensure that the by-laws made by local authorities do not curtail civil liberties or increase regulation disproportionately. Of course they are local laws and can result in a criminal offence.

He also makes the pertinent point about other government departments. What other government departments do is a matter for them, but hopefully where CLG starts, others may follow, so that we may see a flood of by-laws from other government departments in due course. But I will certainly take back the comment about other government departments.

He talked about Wales. The Local Government Byelaws (Wales) Act 2012 required that local authorities have regard to any guidance issued by the Welsh Government, and that guidance has been issued. In short, local authorities in Wales are very much required to make their by-laws in a prescribed manner.

The noble Baroness referred to the possibility of other regulations coming back. Would it not be possible for a single regulation to apply across the whole of government rather than individual departments drafting their own regulations, presumably on similar lines and submitting them to this process?

Perhaps I did not articulate that correctly, but as I have said I will take back the comment about a common framework for government. With that, I commend the regulations.

Motion agreed.