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

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.