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