1. No category

House of Commons
Regulatory Reform Committee
Draft Legislative
Reform (Community
Governance Reviews)
Order 2015
Third Report of Session 2014–15
HC 969
House of Commons
Regulatory Reform Committee
Draft Legislative
Reform (Community
Governance Reviews)
Order 2015
Third Report of Session 2014–15
Report, together with formal minutes
Ordered by the House of Commons
to be printed 28 January 2015
HC 969
Published on 30 January 2015
by authority of the House of Commons
London: The Stationery Office Limited
£5.50
Regulatory Reform Committee
The Regulatory Reform Committee (previously the Deregulation and Regulatory
Reform Committee) is appointed to consider and report to the House on draft
Legislative Reform Orders under the Legislative and Regulatory Reform Act
2006. Its full remit is set out in S.O. No. 141, which was approved on 4 July 2007.
Current membership
Lee Scott MP (Conservative, Ilford North) (Chair)
Heidi Alexander MP (Labour, Lewisham East)
Mr David Anderson MP (Labour, Blaydon)
Andrew Bridgen MP (Conservative, North West Leicestershire)
Jack Dromey MP (Labour, Birmingham, Erdington)
Richard Fuller MP (Conservative, Bedford)
Lilian Greenwood MP (Labour, Nottingham South)
Rebecca Harris MP (Conservative, Castle Point)
Gordon Henderson MP (Conservative, Sittingbourne and Sheppey)
John Hemming MP (Liberal Democrats, Birmingham, Yardley)
Andrew Jones MP (Conservative, Harrogate and Knaresborough)
Ian Lavery MP (Labour, Wansbeck)
Andrew Percy MP (Conservative, Brigg and Goole)
Valerie Vaz MP (Labour, Walsall South)
The following members were also members of the committee during the
parliament:
James Duddridge MP (Conservative, Rochford and Southend East)
Ben Gummer MP (Conservative, Ipswich)
Brandon Lewis MP (Conservative, Great Yarmouth)
Mr Robert Syms MP (Conservative, Poole)
Criteria against which the Committee considers each draft legislative reform
order
Paragraph (3) of Standing Order No.141 requires us to consider any draft
legislative reform order against the following criteria:
… whether the draft legislative reform order —
(a) appears to make an inappropriate use of delegated legislation;
(b) serves the purpose of removing or reducing a burden, or the overall burdens,
resulting directly or indirectly for any person from any legislation (in respect of a
draft Order under section 1 of the Act);
(c) serves the purpose of securing that regulatory functions are exercised so as to
comply with the regulatory principles, as set out in section 2(3) of the Act (in
respect of a draft Order under section 2 of the Act);
(d) secures a policy objective which could not be satisfactorily secured by nonlegislative means;
(e) has an effect which is proportionate to the policy objective;
(f) strikes a fair balance between the public interest and the interests of any
person adversely affected by it;
(g) does not remove any necessary protection;
(h) does not prevent any person from continuing to exercise any right or
freedom which that person might reasonably expect to continue to exercise;
(i) is not of constitutional significance;
(j) makes the law more accessible or more easily understood (in the case of
provisions restating enactments);
(k) has been the subject of, and takes appropriate account of, adequate
consultation;
(l) gives rise to an issue under such criteria for consideration of statutory
instruments laid down in paragraph (1) of Standing Order No 151 (Statutory
Instruments (Joint Committee)) as are relevant;
(m) appears to be incompatible with any obligation resulting from membership
of the European Union.
Publications
The Reports and evidence of the Committee are published by The Stationery
Office by Order of the House. All publications of the Committee (including press
notices) are on the internet at www.parliament.uk/regrefcom. A list of Reports
of the Committee in the present Parliament is at the back of this volume.
Committee staff
The current staff of the Committee are James Davies (Clerk), Jessica Montgomery
(Second Clerk), Sonia Draper (Senior Committee Assistant) and Pam Morris
(Committee Assistant).
Contacts
All correspondence should be addressed to the Clerk of the Regulatory Reform
Committee, House of Commons, 14 Tothill Street, London SW1H 9NB. The
telephone number for general enquiries is 020 7219 5469; the Committee’s email
address is [email protected]
Draft Legislative Reform (Community Governance Reviews) Order 2015 1
Contents
Report
Page
1
Introduction
3
2
Description of the draft Order
3
3
Assessment of the draft Order
5
A: Appropriate use of delegated legislation
B: Removal of a burden
C: Better regulation
D: Legislative need
E: Proportionality
F: Public and private interests
G: Necessary protection
H: Existing rights and freedoms
I: Constitutional significance
J: Accessibilty of the law
K: Consultation
L: Issues relating to statutory instruments
M: Compatibilty with membership of the European Union
4
5
5
6
6
6
6
7
7
7
7
7
7
8
Conclusion
8
Formal Minutes
9
List of Reports from the Committee during the current Parliament
10
2 Draft Legislative Reform (Community Governance Reviews) Order 2015
Draft Legislative Reform (Community Governance Reviews) Order 2015 3
1
Introduction
1. Draft Legislative Reform (Community Governance Reviews) Order 2015 (the ‘draft
Order’) and Explanatory Document were laid before Parliament on 11 December 2014 by
the Department for Communities and Local Government (the ‘Department’).
2. The Minister has recommended that the draft Order be subject to the affirmative
procedure.1
2
Description of the draft Order
Background
3. The draft Order would amend the Local Government and Public Involvement in Health
Act 2007 (the “2007 Act”), which requires all local authorities in England to comply with
regulations covering community governance reviews—the process that allows for the
creation of new town and parish councils. According to the Department, the intention of
the draft Order is to “remove the bureaucracy that frustrates and hinders many local
campaigners” in calling for such reviews while retaining “the elements of the legislation
that currently prevent the risk of councils being set up where there is insufficient support”. 2
4. The draft Order would make three changes to the 2007 Act.
Lowering the threshold of signatures required to make a valid petition
from 10 per cent to 7.5 per cent; 3
5. Lowering the threshold would reduce the percentage of local government electors
required to sign the community governance petition, to trigger a review. The Department’s
original consultation proposed a reduction from 10 per cent to 5 per cent. However, in
light of the responses to that consultation, the Department now proposes a 7.5 per cent
threshold. The Department has concluded that this modification would provide a better
balance between “improving local democracy” and “maintaining the necessary
protections”.4 In terms of the protections, the Department is clear that the existing
safeguards in the 2007 Act would be retained.5 In particular, it highlights the fact that
provisions under section 79 of the Act 2007—which establish the local authority’s role in
making the final decision on whether a parish council should be established—are
unaffected by the draft Order.6
1
Explanatory Document, para 47
2
Explanatory Document, para 2
3
Explanatory Document, page 6
4
Explanatory Document, para 18
5
Explanatory Document, para 19
6
Explanatory Document, para 19
4 Draft Legislative Reform (Community Governance Reviews) Order 2015
Shortening the amount of time the local authority can take to complete a
community governance review 7
6. At present, the principal council must complete a review within 12 months of the day
that the review begins. The draft Order proposes to reduce this to 12 months from the date
of receipt of the petition or application.8 The intention is to “speed up the process and
grant a degree of certainty for local campaigners”.9
7. The Department argues that the new timetable provides both local authorities and local
campaigners with a “clearly defined timeline”10 and that local campaigners would have the
assurance needed to coordinate effective and sustainable campaigns. Furthermore, the
Department asserts that the time limit proposed is “realistic to allow for local authorities to
complete even the most complex of reviews”.11
Allowing Neighbourhood Forums to trigger a community governance
review 12
8. At present, a Neighbourhood Forum set up under Regulations is required to obtain
signatories for a petition for a new council, even if the Forum has secured support for a
neighbourhood plan. The draft Order would enable a Neighbourhood Forum (which has
agreed a neighbourhood development plan), the right to submit an application for the
creation of a new parish. This power would remove the repetitive elements that require
campaigners to complete two separate consultation processes to evidence support for their
proposals for the future of the community.13
9. The Department argues that the proposed change recognises that “the current
requirement that forums with an agreed plan must still submit a petition to trigger a review
is onerous and unnecessary”.14 It goes on emphasize the fact that the change “only gives the
forum the ability to instigate a review if it achieves the required threshold” and did not “in
itself make the establishment of a town and parish inevitable”. 15
Other amendments
10. In order to support Local Government in the implementation of these changes, the
Department has undertaken to revise and strengthen the existing joint DCLG and Local
Government Boundary Commission guidance on Community Governance Reviews.
7
Explanatory Document, page 7
8
Explanatory Document, para 20
9
Explanatory Document, para 20
10
Explanatory Document, para 22
11
Explanatory Document, para 22
12
Explanatory Document, page 8
13
Explanatory Document, para 23
14
Explanatory Document, para 25
15
Explanatory Document, para 25
Draft Legislative Reform (Community Governance Reviews) Order 2015 5
11. DCLG and Local Government Boundary Commission Guidance are currently working
together to revise the guidance to set out the process for applying the new measures. This
will involve a “coordinated approach taken by DCLG and the Commission” to ensure that
the guidance is updated at appropriate milestones to reflect “future changes to
legislation”.16
Central Government support for New Burdens for local authority
community governance reviews
12. The Government has also committed to provide support for local authorities subject to
conducting community governance reviews as a result of the new measures. The provision
of the central fund will mean that local authorities subject to increased petitions will not
incur any additional costs as a result of the new measures. 17
3
Assessment of the draft Order
13. Our role is to assess whether the proposals meet the statutory conditions required of an
order under the Legislative and Regulatory Reform Act 2006 (the “2006 Act”), and to
examine the proposals against a number of tests. Standing Order No.141 sets out the
criteria under which the Committee makes that assessment. In this section we assess the
draft Order against those criteria.
A: Appears to make an inappropriate use of delegated legislation
14. The draft Order does not make an inappropriate use of delegated legislation and
therefore does not raise any issues in respect of this test.
B: Serves the purpose of removing or reducing a burden, or the overall
burdens, resulting directly or indirectly for any person from any legislation
(in respect of a draft order under section 1 of the Act)
15. A burden is defined in s1(3) of the 2006 Act as any of the following: a financial cost; an
administrative inconvenience; an obstacle to efficiency, productivity or profitability; or a
sanction, criminal or otherwise, which affects the carrying on of any lawful activity.
16. In its Explanatory Document, the Department sets out the process by which either a
local authority or local campaigners can trigger a review in order to create a new town or
parish council.18 The Cabinet Office White Paper Open Public Services had found that the
16
Explanatory Document, para 27
17
Explanatory Document, para 28
18
Explanatory Document, paras 5–9
6 Draft Legislative Reform (Community Governance Reviews) Order 2015
existing legislation for triggering a review “placed unnecessary burdens on campaigners”,19
and the Department argues that the current requirements:
•
were too demanding for campaigners to meet the “unrealistically high” requisite
number of electorate signatures required to demonstrate support to trigger a
review;
•
that the timetable allowed for the principal councils to complete the review was too
long and made it difficult for campaigners to “maintain the momentum necessary
to sustain support over a prolonged period of time”; and
•
that it failed to recognise the status Neighbourhood Forums have within their
communities, particularly where the forum has had its neighbourhood
development plan passed by the community in a referendum. 20
17. The Department argues that the removal of these burdens would “improve the
experience for local communities and campaigners alike, making it easier for them to take
the first steps towards setting up a town or parish council”. 21
18. While we accept the Government’s position that these represent burdens as set out in
the 2006 Act, we note that the House of Lords Delegated Powers and Regulatory Reform
Committee has questioned the extent to which the Department’s explanatory document
has fully addressed the burdens test. In doing so, that Committee has recommended the
Super-affirmative procedure in order to give the Department time to further clarify its
position.
C: Serves the purpose of securing that regulatory functions are exercised
so as to comply with the regulatory principles, as set out in section 2(3) of
the Act (in respect of a draft order under section 2 of the Act)
19. The draft Order does not raise any issues in respect of this test.
D: Secures a policy objective which could not be satisfactorily secured by
non-legislative means
20. The Department states that “no non-legislative solution is possible”22 and that
amending the 2007 Act is therefore necessary. We conclude that this requirement has been
satisfied.
E: Has an effect which is proportionate to the policy objective
21. We agree that the effect is proportionate to the policy objective.
19
Explanatory Document, para 11
20
Explanatory Document, para 12
21
Explanatory Document, para 13
22
Explanatory Document, para 40
Draft Legislative Reform (Community Governance Reviews) Order 2015 7
F: Strikes a fair balance between the public interest and the interests of
any person adversely affected by it
22. We agree that this requirement has been satisfied.
G: Does not remove any necessary protection
23. The Department states that no protections will be removed as a result of the draft
Order:
In order to be valid, a petition or application for a community governance review will
still require a strong degree of local support. A council will still have an adequate time
period to consider all submitted proposals and conduct any review. No changes have
been made to the ability of a council to determine what recommendations to make in
the best interests of the community as a whole.23
24. We conclude that the draft Order does not remove any necessary protections.
H: Does not prevent any person from continuing to exercise any right or
freedom which that person might reasonably expect to continue to
exercise
25. The draft Order does not raise any issues in respect of this test.
I: Is not of constitutional significance
26. The Department confirms that the proposals are not of constitutional significance.
J: Makes the law more accessible or more easily understood (in the case of
provisions restating enactments)
27. The draft Order does not raise any issues in respect of this test.
K: Has been the subject of, and takes appropriate account of, adequate
consultation
28. The Department states that it has undertaken “extensive engagement throughout the
local government sector” regarding the proposals. A formal consultation ran from October
2012 to January 2013 which considered a wide number of proposals to amend the 2007
Act. This was followed by a further formal consultation which ran from March 2014 to
May 2014. That consultation contained proposals which had been modified in light of
responses to the previous consultation.24
29. We conclude that the draft Order has been subject to adequate consultation.
23
Explanatory Document, para 45
24
Explanatory Document, paras 53 and 54
8 Draft Legislative Reform (Community Governance Reviews) Order 2015
L: Gives rise to an issue under such criteria for consideration of statutory
instruments laid down in paragraph (1) of Standing Order No. 151
(Statutory Instruments (Joint Committee)) as are relevant
30. The draft Order does not raise any issues in respect of this test.
M: Appears to be incompatible with any obligation resulting from
membership of the European Union.
31. The draft Order does not raise any issues in respect of this test.
32. We conclude that the draft Order meets the required preconditions and tests.
4
Conclusion
33. We conclude that a satisfactory case has been made in favour of the proposals and
recommend that the draft Order be approved. However, the House of Lords Delegated
Powers and Regulatory Reform Committee has recommended the Super-Affirmative
procedure, and requested further information from the Department. The draft Order
therefore cannot be proceeded with until the Department has responded to the House
of Lords Committee’s request.
Draft Legislative Reform (Community Governance Reviews) Order 2015 9
Formal Minutes
Wednesday 28 January 2015
Members present:
Lee Scott, in the Chair
Rebecca Harris
Ian Lavery
Andrew Percy
Draft Report (Draft Legislative Reform (Community Governance Reviews) Order 2015), proposed by the Chair,
brought up and read.
Ordered, That the draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 33 read and agreed to.
Question put, That the Report be the Third Report of the Committee to the House.
Resolved, That the Report be the Third Report of the Committee to the House.
Ordered, That the Chair make the Report to the House.
[Adjourned till a date and time to be fixed by the Chair.
10 Draft Legislative Reform (Community Governance Reviews) Order 2015
List of Reports from the Committee during
the current Parliament
Session 2014–15
First Report
Draft Legislative Reform (Patents) Order 2014
HC 331
Second Report
Draft Legislative Reform (Entertainment Licensing)
Order 2014
HC 742
Third Report
Draft Legislative Reform (Community Governance
Reviews) Order 2015
HC 969
First Report
Draft Legislative Reform (Regulation of Providers of
Social Work Services)(England and Wales) Order 2013
HC 270
Second Report
Draft Legislative Reform (Payments by Parish
Councils, Community Councils and Charter Trustees)
(England and Wales) Order 2013
HC 929
Third Report
Draft Legislative Reform (Overseas Registration of
Births and Deaths) Order 2014
HC 1010
Fourth Report
The Harrogate Stray Act 1985 (Tour de France) Order
2014
HC 1197
Fifth Report
Draft Legislative Reform (Clinical Commissioning
Groups) order 2014
HC1224
First Report
Draft Legislative Reform (Annual Review of Local
Authorities) Order 2012
HC 158
Second Report
Draft Legislative Reform (Constitution of Veterinary
Surgeons Preliminary Investigation and Disciplinary
Committees) Order 2013
HC 824
First Report
Draft Legislative Reform (Civil Partnership) Order
2010
HC 595
Second Report
Draft Legislative Reform (Epping Forest) Order 2011
HC 963
Third Report
Draft Legislative Reform (Industrial and Provident
Societies and Credit Unions) Order 2011: Second
Stage
Session 2013–14
Session 2012–13
Session 2010–12
HC 1564