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Localism Act 2011

Part 1: Local Government

Chapter 1: General powers of authorities
Section 1: Local authority’s general power of competence

10.Section 1 provides a general power of competence for local authorities in England. It gives these authorities the same power to act that an individual generally has and provides that the power may be used in innovative ways, that is, in doing things that are unlike anything that a local authority - or any other public body - has done before, or may currently do. The section defines the meaning of an ‘individual’ so as to avoid referring to the reduced powers exercised by for example a child. Subsections (4), (5) & (6) further define the extent of the power. Where the authority can do something under the power, the starting point is that there are to be no limits as to how the power can be exercised. For example, the power does not need to be exercised for the benefit of any particular place or group, and can be exercised anywhere and in any way. Subsection (7) gives effect to Schedule 1, which makes consequential amendments. The amendments to the Local Government Act 2000 mean that the well-being power provided in section 2 of that Act will no longer apply to English local authorities.

Section 2: Boundaries of the general power

11.Section 2 sets out the boundaries of the general power, requiring local authorities to act in accordance with statutory limitations or restrictions. Restrictions that apply to existing powers that are overlapped by the general power are applied to the general power. So for instance if an existing power requires a particular procedure to be followed, the same procedure will apply to the use of the general power to do the same thing. It also applies any express prohibitions, restrictions and limitations within primary or secondary legislation, to the use of the general power. A distinction is drawn between restrictions in pre-commencement legislation, and those in post-commencement legislation. Restrictions in post-commencement legislation will only apply to the general power where they are expressed to do so.

12.Subsection (3) provides that the general power does not give local authorities power to delegate or contract out of their functions, nor to alter governance arrangements. These matters remain subject to separate provision.

Section 3: Limits on charging in exercise of the general power

13.Section 3 restricts the ability of a local authority to charge for providing a service to a person using the general power, or where they are using an overlapped power, for non-commercial purposes. If no specific charging power exists, local authorities can charge up to full cost recovery for discretionary services - that is those that they are not required to provide to a person, where that person has agreed to their being provided. This is in line with the charging powers in section 93 of the Local Government Act 2003. Charging for commercial purposes is subject to the provisions of section 4.

Section 4: Limits on doing things for commercial purpose in exercise of the general power

14.Section 4 restricts the ability of a local authority to do things for a commercial purpose using the general power. The power does not authorise authorities to trade in a service with a person to whom they are already statutorily obliged to provide it. They must also only trade commercially through a company. These provisions reflect the trading powers in section 95 of the Local Government Act 2003

Section 5: Powers to make supplemental provision

15.Subsection (1) provides the Secretary of State with powers to remove or change statutory provisions that prevent or restrict the legal capacity of local authorities to use the general power in section 1 to do things that an ordinary individual can do. Subsection (2) allows the Secretary of State to remove overlaps between the general power and existing powers. Subsections (3) and (4) allow the Secretary of State to restrict what a local authority may do under the general power or to make its use subject to conditions. Subsection (7) provides that the Secretary of State must consult before exercising any of these powers, which would usually include consultation with any person, or their representatives, substantially affected by the proposal. This duty to consult does not apply to orders made under section 5(3) or (4) that only amend an earlier order so as to apply it to further authorities or disapply it in relation to a particular authority or authorities – see section 7(5). Subsection (8) requires the Secretary of State to consult the Welsh Ministers if an order made under section 5(1) is to have effect in Wales.

Section 6: Limits on power under section 5(1)

16.Subsection (1) requires the Secretary of State to consider whether certain conditions set out in subsection (2) have been met before exercising the power to remove restrictions in section 5(1).

17.These conditions are: that the effect of the provision made by the order is proportionate to its policy objective, in other words that the minister considers that there is an appropriate relationship between the policy aim and the means chosen to achieve it; that the provision made by the order, taken as a whole, strikes a fair balance between the public interest and the interests of the persons adversely affected by the order, including any new or increased burdens; that the provision does not remove any necessary protection such as protections in the areas of civil liberties, health and safety, the environment or national heritage; the provision will not prevent any person from continuing to exercise any right or freedom which the person might reasonably expect to continue to exercise such as, for example, rights conferred by the European Convention on Human Rights; and that the provision is not constitutionally significant. This last condition would allow orders to amend enactments which are considered to be constitutionally significant, but only if the amendments are not themselves constitutionally significant.

18.Subsections (3) and (4) prevent any orders under section 5(1) from being used to delegate or transfer legislative powers. Subsection (5) prohibits an order made under section 5(1) from abolishing or varying any tax.

19.The Secretary of State is required to set out in the explanatory document, to be laid before Parliament under section 7(2), the reasons why the conditions are considered to be met.

Section 7: Procedure for orders under section 5

20.Section 7 sets out the parliamentary procedure to be followed for orders made under section 5. The procedure for orders under section 5(1) is modelled on that set out in the Legislative and Regulatory Reform Act 2006 for a Legislative Reform Order. This means that the procedure to be followed (negative, affirmative or super-affirmative) is ultimately determined by Parliament.

21.Subsection (4) allows provision under sections 5(1) and 5(2) to be combined in the same order, and applies the section 7 procedure in these circumstances. Other orders under this section are subject to an “affirmative” procedure (see section 235), other than orders under section 5(2) which do not amend primary legislation and orders under section 5(3) and (4) that disapply provisions contained in existing orders and orders that impose conditions on doing things for a commercial purpose, which are subject to the “negative” parliamentary procedure.

Section 8: Interpretation of Chapter

22.Section 8 defines local authorities for the purposes of the Chapter. These are the bodies that will have the new power. This list does not include local authorities in Wales. By restricting the definition to ‘eligible’ parish councils, the section provides power for the Secretary of State to set conditions by order (subject to the affirmative procedure) as to which to parish councils will have the general power.

Chapter 2: Fire and rescue authorities
Section 9: General powers of certain fire and rescue authorities

23.Subsection (1) inserts new sections 5A to 5L into the Fire and Rescue Services Act 2004 providing new broad general powers to do things related to their purposes to metropolitan county fire and rescue authorities, the London Fire and Emergency Planning Authority and combined fire and rescue authorities in England or Wales. County councils that are fire and rescue authorities are not included, as they are provided with the general power of competence by Chapter 1 of this Part of the Localism Act.

24.New section 5A provides a power for the authority to do (a) anything it considers appropriate for the carrying out of any of its functions, (b) anything it considers appropriate for purposes incidental to the carrying out of any of its functions (whether directly or indirectly incidental) or (c) anything it considers to be connected with (a) or (b).

25.New section 5B sets out the limits on the power under new section 5A. Express prohibitions, restrictions and limitations within primary or secondary legislation are applied to the new power, and, as with section 2 of the Localism Act, a distinction is drawn between restrictions in pre and post-commencement legislation. The new section 5A power does not enable authorities to borrow money, to do things they are statutorily obliged to do for a commercial purpose, or to do things for a commercial purpose other than through a company or co-operative society. The power does not enable them to charge for services for non-commercial purposes (but see section 10 of the Localism Act below).

26.New section 5C provides the Secretary of State or Welsh Ministers with powers, equivalent to those provided to the Secretary of State in relation to the general power of competence by section 5 of the Localism Act, to remove limitations and restrictions and overlapped powers, and to prevent fire and rescue authorities from doing something under the new power, or to make its use subject to conditions. New section 5C(6) and (7) set out the consultation requirements. Consultation is not required if the order in question is simply to extend or disapply provisions contained in an existing order.

27.New section 5D sets out the conditions for the use of the power in new section 5C(1). These are the same as those in section 6 of the Localism Act in relation to the power in section 5(1) of that Act. New section 5E sets out the procedure for making such orders in England and new sections 5F to 5L in Wales. These are equivalent to the procedure in section 7 of the Localism Act in relation to the powers in section 5(1) and (2) of that Act. Other orders are, with the same exceptions as set out in relation to orders under section 5 of the Localism Act, subject to an “affirmative” procedure as a result of amendments made to the Fire and Rescue Services Act 2004 by section 9(3) to (6) of the Localism Act.

28.Subsections (2) and (8) remove existing incidental powers from combined authorities, as these are replaced by the new power.

Section 10: Fire and rescue authorities: charging

29.Section 10 inserts new section 18A to 18C into the Fire and Rescue Services Act 2004. New section 18A gives fire and rescue authorities, in England and Wales, power to charge for action, on a cost recovery basis and subject to local consultation.

30.New sections 18B and 18C set limits on charging, preventing charging for “core” fire and rescue services. These limits are applied to the commercial activities of fire and rescue authorities by new section 5B(7).

Chapter 3: Other Authorities

31.This chapter provides Integrated Transport Authorities, Passenger Transport Executives, economic prosperity boards and combined authorities with broad general powers to do things related to their functions, similar to the powers provided to Fire and Rescue Authorities by Chapter 2 of this Part. The general powers replace their existing incidental powers (except in the case of Passenger Transport Authorities) and allow them to do things beyond their geographic boundaries.

Section 11: Integrated Transport Authorities

32.Section 11 inserts a new Chapter 4 into Part 5 of the Local Transport Act 2008 comprising new sections 102B, 102C and 102D.

33.New section 102B contains the new broader general power for Integrated Transport Authorities, specifically it gives powers to an authority to do (a) anything it considers appropriate to its functions, (b) anything incidental to those functions, (c) anything indirectly incidental (however indirectly incidental that might be) and (d) anything it considers to be connected with its functions or anything it may do under (a), (b) or (c). It also confirms in paragraph (e) that anything that it now has the power to do for a non-commercial purpose, it may also do for a commercial purpose. It also provides that the new powers are not limited by geography or by the other powers of Integrated Transport Authorities. New section 102B(4) and (5) provide that the Integrated Transport Authority may delegate the taking of action under new section 102B(1) to a Passenger Transport Executive, but not the function of determining what action to take.

34.New section 102C sets the boundaries to the new power. As with the new powers of local authorities and fire and rescue authorities provided by this Part of the Localism Act, the new power is subject to pre-existing limitations and express post commencement limitations. Similarly restrictions that apply to existing powers that are overlapped by the new power are applied to the new power. New section 102C (3) and (4) provide that the new power does not authorise Integrated Transport Authorities to borrow money or to charge (other than for a commercial purpose). This does not affect the Integrated Transport Authorities’ powers to charge under section 93 of the Local Government Act 2003. New section 102C(5) states that the new power does not allow an Integrated Transport Authority to do things for a commercial purpose that it is obliged by statute to do, and new section 102C(6) requires that the Integrated Transport Authority must conduct commercial activities through a company or co-operative society.

35.New section 102D gives the Secretary of State power to by order to prevent Integrated Transport Authorities from doing something under the new power, or to make its use subject to conditions. Subsection (4) of the new section sets out the consultation requirements that the Secretary of State must comply with prior to making an order under section 102D. New section 102D(5) states that the Secretary of State need not consult if the order in question is simply to extend or disapply provisions contained in an existing order. Subsections (7), (8) and (9) of the new section provide that orders under section 102D are subject to an “affirmative” parliamentary procedure, except orders that disapply provisions contained in existing orders or orders that impose conditions on doing things for a commercial purpose, which are subject to the “negative” parliamentary procedure.

Section 12: Passenger Transport Executives

36.Subsection (1) inserts in Part 2 of the Transport Act 1968 new sections 10A, 10B and 10C.

37.New section 10A contains the new broader general power for Passenger Transport Executives. It follows the drafting of new section 102B(1) to (3) of the Local Transport Act 2008, inserted by section 11 of the Localism Act.

38.New section 10B sets boundaries limiting the further powers given to Passenger Transport Executives. It follows the drafting of new section 102C of the Local Transport Act 2008, inserted by section 11 of the Localism Act. New section 10B(4) provides that the restriction on charging (other than for a commercial purpose) does not apply to the Passenger Transport Executives’ other powers to charge.

39.New section 10C gives the Secretary of State power by order to prevent Passenger Transport Executive(s) from doing something under the new power or to place conditions on its use. This section follows the drafting of new section 102D inserted by section 11 of the Localism Act, with appropriate modification. The new section also provides for the parliamentary procedure to be followed for the making of such orders – again this is in line with section 102D. Existing procedural rules are disapplied by section 12(3).

40.Subsection (2) amends section 10(1) of the Transport Act 1968 (powers of a Passenger Transport Executive) allowing Passenger Transport Executives to invest “their money” rather than the existing wording that limits Passenger Transport Executives’ power to invest only sums not immediately needed.

41.Subsection (4) amends section 93(9) of the Local Government Act 2003 to provide Passenger Transport Executives power to charge for discretionary services. Section 12(5) amends the definition of “relevant authority” in section 95(7) of the Local Government Act 2003, to include Passenger Transport Executives in the list of bodies that can be given (where they do not already have it) power to do for commercial purposes things that they can do for non-commercial purposes.

Section 13: Economic prosperity boards and combined authorities

42.Economic prosperity boards and combined authorities are statutory bodies that may be established by order under Part 6 of the Local Democracy, Economic Development and Construction Act 2009. Subsection (1) inserts new sections 113A, 113B, 113C into the 2009 Act.

43.New section 113A provides new broader powers for economic prosperity boards and combined authorities, in line with those provided for Integrated Transport Authorities by section 11 of the Localism Act (see above).

44.New section 113B sets out the boundaries to the new powers. These are the same as those set out in section 11 of the Localism Act in relation to Integrated Transport Authorities.

45.New section 113C gives the Secretary of State power by order to prevent economic prosperity boards or combined authorities from doing something under the new section 113A powers, or to impose conditions on the exercise of those powers. Again these provisions mirror the provisions of section 11 of the Localism Act in relation to Integrated Transport Authorities, with appropriate modifications.

46.Subsection (2) amends section 117 of the 2009 Act, to provide orders that under new section 113C are to be subject to an affirmative procedure in Parliament, except orders made in order to disapply provisions contained in existing orders and orders made only in order to impose conditions on doing things for a commercial purpose.

Section 14: Further Amendments

47.Subsection (1) amends the Local Government Act 1972 to disapply section 111 (subsidiary powers of local authorities) of that Act to Integrated Transport Authorities, economic prosperity boards and combined authorities, as the incidental powers provided by that section are replaced by the new general powers.

48.Subsection (2) amends section 93 of the Local Government Act 2003 to provide that the restrictions on charging under the new powers (and under section 100(2) of the Local Transport Act 2008) do not amount to prohibitions on charging for the purposes of section 93. This ensures that the power to charge for discretionary services extends to discretionary services provided under the new powers.

Chapter 4: Transfer and delegation of functions to certain authorities
Section 15: Power to transfer local public functions to permitted authorities

49.Section 15 allows the Secretary of State by order to transfer a local public function to a “permitted authority”. Subsections (2), (3) and (4) allow for such an order to modify enactments for the purpose of making the transfer. Under subsection (5) the Secretary of State can only make an order if he or she considers that it is likely to promote economic development or wealth creation or increase local accountability in relation to each local public function transferred. Also, the Secretary of State can only make an order if he or she considers that the relevant local public function can be appropriately exercised by the permitted authority and the permitted authority has consented to the transfer. The Secretary of State must consult such persons as he or she considers appropriate before making an order.

Section 16: Delegation of functions by Ministers to permitted authorities

50.This section allows a Minister of the Crown to delegate to a permitted authority any of his or her eligible functions, subject to such conditions as the Minister thinks fit. A function is eligible for these purposes as long as it does not consist of a power to make regulations or other instruments of a legislative character or a power to fix fees or charges and the Minister considers that it can be appropriately exercised by the permitted authority. No delegation to a permitted authority, or variation of a delegation, can be made without the agreement of the permitted authority. Before delegating a function the Minister must consult such persons as he or she considers appropriate. A delegation could be revoked at any time by a Minister of the Crown.

Section 17: Transfer schemes

51.Subsection (1) allows the Secretary of State to make a scheme for the transfer of property, rights or liabilities to a permitted authority from a body or person from whom a relevant local public function has been transferred through an order under section 15. Subsections (2) allows a Minister to make a scheme for the transfer from the Crown to a permitted authority of property, rights or liabilities as a consequence of a delegation, or variation of a delegation, to a permitted authority under section 16. A Minister of the Crown may also make a scheme for the transfer of property, rights or liabilities from a permitted authority to the Crown as a consequence of variation or revocation of a delegation under section 16.

Section 18: Duty to consider proposals for exercise of powers under sections 15 and 17

52.Section 18 places a duty on the Secretary of State to consider a proposal from a permitted authority for the transfer of local public functions and the transfer of property, rights or liabilities under sections 15 and 17 respectively. The Secretary of State is required to notify the permitted authority of what, if any, action he or she intends to take in relation to the proposal. Subsection (2) allows the Secretary of State to set out in regulations the criteria to which he or she should have regard in considering any relevant proposal. Before making such regulations the Secretary of State must consult such persons as he or she considers appropriate.

Section 19: Orders under section 15: procedure

53.This section sets out the procedure for Parliamentary consideration before an order under section 15 for the transfer of local public functions to a permitted authority can be made. Following appropriate consultation, the order must be laid in draft for 60 days, during which time formal representations may be made, and either House, or a committee charged with consideration of the order, can effectively block it. After this the order must be approved by a resolution of each House before it can be made.

Section 20: Interpretation of Chapter

54.This section defines terms used throughout Chapter 4 of Part 1. A “permitted authority” is defined as a county council in England, a district council, an economic prosperity board (established under section 88 of the Local Democracy, Economic Development and Construction Act 2009) or a combined authority (established under section 103 of the same Act). Only functions that fall within the definition of “local public function” may be subject to a transfer order under section 15. This is defined in section 20, in relation to a permitted authority, as a function of a public authority in so far as it relates to the permitted authority’s area or persons living, working or carrying on activities in that area, and which does not consist of a power to make regulations or other instruments of a legislative character. For these purposes, “public authority” includes a Minister of the Crown or a government department.

Chapter 5: Governance
Section 21: New arrangements with respect to governance of English local authorities

55.Section 21 gives effect to Schedule 2. Part 1 of Schedule 2 inserts new Part 1A into the Local Government Act 2000. New Part 1A makes provision in relation to local authority governance arrangements in England. Part 2 of Schedule 2 inserts the sections of new Schedule A1 into the 2000 Act to make further provision in relation to executive arrangements in England. Part 2 of the 2000 Act is restricted, in its application, to Wales by the amendments to the 2000 Act made by Schedule 3 (see below).

Schedule 2 Part 1: New Part 1A of the Local Government Act 2000– Arrangements with respect to local authority governance in EnglandChapter 1: Permitted forms of governanceNew section 9B: Permitted forms of governance for local authorities in England.

56.New section 9B specifies the forms of governance a local authority in England can operate. These are executive arrangements, a committee system, or prescribed arrangements.

New section 9BA: Power of Secretary of State to prescribe additional permitted governance arrangements.

57.New section 9BA provides that the Secretary of State may make regulations prescribing arrangements that local authorities in England may operate. It provides that the Secretary of State must have regard to any proposals received from a local authority when the Secretary of State considers whether or how to make regulations under this section. Under new section 9BA(5) a local authority can put forward a proposal asking the Secretary of State to make regulations under this section as long as the local authority:

a)

considers that the conditions set out in subsection (6) are met;

b)

can explain why those conditions have been met; and

c)

describes the provision that it thinks the regulations should make in respect of the way functions of the authority should be discharged and/or delegated under its proposal.

Chapter 2: Executive arrangementsNew section 9C: Local authority executives

58.New section 9C provides that an executive of a local authority in England must take the form of either:

a)

a directly elected mayor together with two or more councillors of the authority appointed to the executive by the mayor, or

b)

an executive leader, elected by full council from among the councillors, together with two or more councillors of the authority appointed to the executive by the leader.

It also prevents the chairman or vice-chairman of the authority from being a member of the executive, and limits the number of councillors who can be on the executive to 10 (unless a different maximum number is specified in regulations).

New sections 9D and 9DA: Functions which are the responsibility of an executive

59.New Sections 9D and 9DA provide the mechanism for determining which local authority functions are to be the responsibility of the executive. Section 9D allows the Secretary of State to make regulations to specify those functions which may, but need not, be the responsibility of the executive, and those functions which must not be the responsibility of the executive. The presumption is that all functions of the authority are to be the responsibility of the executive unless specified in regulations made under this section or specified in any enactment passed or made after the Local Government Act 2000 was passed. New section 9DA makes further provision about the discharge of executive functions in a local authority.

New sections 9E to 9EB: Discharge of functions

60.These sections set out in greater detail how decision-making is to be undertaken under executive arrangements and provide for the mayor or leader, as the senior executive member, to determine how functions which are the responsibility of the executive should be carried out.

New sections 9F to 9FE: Overview and scrutiny committees

61.New section 9F requires local authorities, which are operating executive arrangements, to set up overview and scrutiny committees.

62.Executive arrangements must ensure that these committees have power to make reports and recommendations, either to the executive or authority, on any aspect of council business. They must also have the power to make reports and recommendations on other matters which affect the authority’s area or its inhabitants.

63.Where an overview and scrutiny committee reviews or scrutinises an executive decision which has been made but not implemented, subsection (4) provides that it may recommend that it is reconsidered by those responsible, or else arrange for the authority to review the decision and, where necessary, ask those responsible for the decision to reconsider.

64.New section 9FA describes in detail how overview and scrutiny committees may carry out their functions, giving them the power to appoint sub-committees and make arrangements for these sub-committees to discharge any functions of the overview and scrutiny committee. It also allows an overview and scrutiny committee to require officers of the authority and members of the executive to appear before it and invite any other person to appear before it. Neither the overview and scrutiny committee nor any of its sub-committees may include any member of the authority’s executive, but can include people who are not members of the authority.

65.Overview and scrutiny committees are able to co-opt people who are not members of the authority. However, in general, such co-optees will not have voting rights unless they are permitted to vote under paragraphs 11 and 12 of new Schedule A1. The restriction on voting rights is also subject to provision made by or under paragraphs 6 to 8 of Schedule A1 or section 20(6) of the Police and Justice Act 2006. New section 9FA(6) provides that Part 5A of the Local Government Act 1972 on access to meetings and documents of certain authorities, committees and sub-committees, and Section 15 of the Local Government and Housing Act 1989 on the duty to allocate seats to political groups will apply to overview and scrutiny committees.

66.New section 9FB provides that local authorities (except those district councils for an area for which there is a county council) must designate one of their officers as scrutiny officer to perform the functions set out in this section. New section 9FB(4) provides that the local authority may not designate its head of paid service, monitoring officer or chief finance officer as its scrutiny officer.

67.New section 9FC provides that a local authority’s executive arrangements must make provision to enable members of an overview and scrutiny committee, including a sub-committee of such a committee, to refer matters to the committee or sub-committee. It also stipulates that such local authorities must make arrangements to enable councillors who are not members of either the committee or sub-committee to refer any matters, which are not local crime and disorder matters (within the meaning of section 19 of the Police and Justice Act 2006), or specified as excluded matters in an order, to overview and scrutiny committees. A person is treated as enabled to refer a matter if that person is able to ensure that the matter is put on the agenda and discussed at a meeting of the committee or sub-committee.

68.New section 9FD makes further provision in relation to references of matters to overview and scrutiny committees by a member of a local authority who is not also a member of the committee. It specifies certain factors that the committee may have regard to when considering whether to exercise its powers to review and scrutinise matters which have been referred by such a non-member.

69.New section 9FE makes further provision about reports and recommendations of overview and scrutiny committees. It provides that overview and scrutiny committees may publish reports and recommendations and must, in writing, require the authority or executive to take steps set out in new section 9FE(3). Subsections (4) to (6) of the new section describe how the local authority or executive must comply with notices made under subsection (3).

New section 9FF: Reports and recommendations of overview and scrutiny committees: duties of certain partner authorities

70.New section 9FF applies where an overview and scrutiny committee or sub-committee makes a report or recommendations to an authority or an executive and the report or recommendations relate to the functions of a relevant partner authority that are exercised in the authority’s area or affect the people in that area. It does not apply where the report or recommendations are made by a crime and disorder committee by virtue of section 19(1)(b) or (3)(a) of the Police and Justice Act 2006.

71.The overview and scrutiny committee or sub-committee may give the relevant partner authority notice in writing requiring them to have regard to the report or recommendations in exercising their functions. A relevant partner authority which is a health service body i.e. a National Health Service Trust, an NHS Foundation Trust or a Primary Care Trust cannot be required to have regard to a report or recommendations made to that body under regulations made under section 244 of the National Health Service Act 2006. Alternatively, a health service body cannot be required to have regard to a report or recommendations made to it by a committee of a non-unitary district council. The relevant partner authority has a duty to comply with the requirement specified in the notice.

New section 9FG: Publication etc of reports, recommendation and responses: confidential and exempt information

72.New section 9FG makes provision in relation to an overview and scrutiny committee or a local authority excluding “confidential information” and “relevant exempt information” when publishing a document or providing a copy of it to a relevant partner authority. “Confidential information” is defined in new section 9FG(8) and has the meaning given by section 100A(3) of the Local Government Act 1972. “Exempt information” is also defined in that subsection and has the meaning given by section 100I of the 1972 Act but also includes exempt information under section 246 of the National Health Service Act 2006.

New section 9FH: Overview and scrutiny committees: flood risk management

73.New section 9FH requires lead local flood authorities to make arrangements for overview and scrutiny committees to review and scrutinise risk management authorities. Risk management authorities are placed under a duty to comply with a request made by an overview and scrutiny committee for information or a response to a report in relation to its flood or coastal erosion risk management functions. New section 9FH(4) provides for the Secretary of State to make regulations about this duty.

New section 9FI: Overview and scrutiny committees: provision of information etc by certain partner authorities

74.New section 9FI enables the Secretary of State to make regulations which determine what information relevant partner authorities must provide to a relevant committee or may not disclose to such a committee. This does not apply to information in relation to which provision can be made regarding the supply or non-disclosure of information under the power conferred by section 20(5)(c) or (d) of the Police and Justice Act 2006 or section 244(2)(d) or (e) of the National Health Service Act 2006.

New Sections 9G and 9GA: Meetings and access to information etc

75.New sections 9G and 9GA allow the Secretary of State to specify in regulations the circumstances in which meetings of the executive or its committees must be open to the public and which must be held in private. Other than where specified in regulations, it will be for the executive to choose whether to meet in private or in public. Written records of prescribed decisions made at meetings of the executive held in private or by individual members of the executive must be kept, including reasons for the decisions. These records, together with such reports and background papers as may be prescribed, must be made available to the public. Regulations could ensure that failure by the executive to cause to have such a record made and failure by the proper officer of the authority to make the record public would be criminal offences.

76.Regulations under these sections would also be able to apply provisions of Part 5A of the Local Government Act 1972, with or without modifications, to meetings of the executive and its committees, whether held in public or in private. The regulations may make provision requiring prescribed information about prescribed decisions to be made publicly available, and may also make provision about access to meetings of joint committees which are discharging functions which are the responsibility of the executive.

77.New section 9GB gives effect to Schedule A1.

78.New section 9GC provides that section 15 of the Local Government and Housing Act 1989, which is about the duty to allocate seats to political groups, does not apply to a local authority executive or a committee of an executive.

New section 9H: Elected mayors etc

79.New section 9H provides that an “elected mayor” means an individual elected to that post by local government electors in the authority’s area. The section provides that references in any enactment to a member or councillor of a local authority do not include the elected mayor, unless the Secretary of State has provided in regulations that an elected mayor is to be treated as a member or councillor for the purpose of an enactment, or contrary intention appears in an enactment.

80.The section also provides that subject to regulations made under new sections 9HB or 9HE the elections of mayors are to take place on the same day as council elections, and that an elected mayor’s term of office is four years.

New section 9HA: Election as elected mayor and councillor

81.New section 9HA provides that no one may be the elected mayor and a councillor for the same authority. It also makes provision in relation to circumstances where an individual elected as mayor is already a councillor of the authority or stands for election as both mayor and councillor at the same elections.

New section 9HB to 9HE: Mayoral elections

82.New section 9HB enables the Secretary of State to make regulations providing for the timing of mayoral elections. It also empowers the Secretary of State to make provision by regulations in relation to the term of office of elected mayors and the filling of vacancies in the office of elected mayor.

83.New section 9HC and Schedule 2 to the 2000 Act describe the method for electing a directly elected mayor. This will normally be by a supplementary vote system unless there are fewer than three candidates where it will be by simple majority (first past the post). Section 9HD provides that entitlement to vote at elections of elected mayors is the same as the electoral franchise for local government elections.

84.New section 9HE provides for the Secretary of State to make regulations regarding the conduct of elections for elected mayors. This includes a power to apply or modify any statutory provision relating to the conduct of elections. Before making any regulations under this section, the Secretary of State must consult the Electoral Commission.

New section 9I: Election and term of office of leader

85.This section provides what executive arrangements by a local authority operating a leader and cabinet executive may and must include with respect to the election of a leader and their term of office.

New section 9IA: Removal of leader

86.This section provides that executive arrangements by a local authority operating a leader and cabinet executive must include provision for the council to remove the executive leader by resolution. If such a resolution is passed then a new leader must be elected at the meeting where the leader is removed from office or at a subsequent meeting.

New section 9IB: Leader to continue to hold office as councillor

87.This section provides that the person who is the executive leader of a leader and cabinet executive remains a member of the council during the period that they are the leader. While they remain executive leader any enactment which provides for their early retirement as a councillor does not apply. This section does not affect anything by which the executive leader may cease to be a councillor otherwise than by retirement.

New section 9IC: No other means of removing leader

88.This section applies to a local authority which operates a leader and cabinet executive. An executive leader may not be removed from office except in accordance with new section 9IA or regulations under new section 9ID.

New section 9ID: Regulations

89.This section allows the Secretary of State by regulations to make provision in relation to the election and removal from office of executive leaders, their terms of office and the filling of vacancies in the office of executive leader of a leader and cabinet executive.

Chapter 3: The committee systemNew section 9J: Secretary of State’s power to prohibit delegation of functions etc

90.New section 9J provides that the Secretary of State may by regulations specify or describe those functions or actions of a committee system local authority that are to be non-delegable functions or actions and specify or describe cases or circumstances in which any specified or described function or action is to be non-delegable. If these functions or actions are non-delegable then they must by carried out by the local authority and section 101 of the Local Government Act 1972 does not apply to them.

New section 9JA: Overview and scrutiny committees

91.New section 9JA states that a committee system local authority may by resolution appoint one or more committees as its overview and scrutiny committee or committees. There is, however, no statutory requirement for such local authorities to appoint an overview and scrutiny committee.

92.Under this section the Secretary of State may by regulations make provision about the functions, composition and procedure of a committee that has been appointed as an overview and scrutiny committee and also the appointment by committee system local authorities of joint committees and sub-committees as overview and scrutiny committees. Regulations made by the Secretary of State may include provision which applies or reproduces any provision of, or made under, new sections 9F to 9FI or paragraphs 6 to 13 of Schedule A1.

New section 9JB: Overview and scrutiny: flood risk management

93.New section 9JB makes provision for committee system local authorities that are lead local flood authorities to review and scrutinise the exercise by risk management authorities of flood risk management or coastal erosion risk management functions which may affect the local authority’s area.

Chapter 4: Changing governance arrangementsNew sections 9K and 9KA: Changing from one form of governance to another or from one form of executive to another

94.These sections make provision for local authorities to change their forms of governance, or to vary their executive arrangements so that they provide for a different form of executive, if they wish to.

New section 9KB: Executive arrangements: other variation of arrangements

95.This section makes provision for local authorities that operate executive arrangements to vary these if they wish to so that they differ from the existing arrangements in any respect but still provide for the same form of executive.

New section 9KC: Resolution of local authority

96.New section 9KC provides that a local authority must make a resolution if it wants to change its governance arrangements and outlines the steps that the local authority needs to undertake once a resolution to change governance arrangements has been passed.

97.This section also provides that a local authority which passes a resolution to change its governance arrangements, in the manner set out in new sections 9K and 9KA (‘Resolution A’), cannot pass another resolution (‘Resolution B’) that makes such a change until 5 years have elapsed since Resolution A was passed. This is unless Resolution B is approved in a referendum held in accordance with this Chapter.

98.New section 9KC(5) provides that the section does not apply in relation to a change to a mayor and cabinet executive as a result of an order made by Secretary of State under new section 9N.

New section 9L: Implementation: change in form of governance or change in form of executive

99.This section provides that if a local authority passes a resolution which makes a change in governance arrangements of the kind set out in new sections 9K or 9KA, at a ‘relevant change time’ the local authority must cease operating the old form of governance and start operating the new form of governance. It provides that a local authority may take steps to prepare for or implement its change in governance arrangements. ‘Relevant change time’ is defined according to the form of governance that is currently in operation and the form that is proposed.

New section 9M: Cases in which change is subject to approval in a referendum in accordance with sections 9MA and 9MB

100.This section provides that a where a local authority proposes to change its governance arrangements by resolution, that change is subject to a referendum where either the proposed change is of a kind set out in new sections 9K or 9KA and the implementation of the local authority’s existing form of governance or executive was approved in a referendum under this Chapter, or where the authority resolves that the proposed change is to be subject to approval in a referendum.

New sections 9MA and 9MB: Referendums

101.These sections apply to a local authority that wishes to make a change in governance arrangements that is subject to approval in a referendum and outlines what a local authority must do in such an event.

New sections 9MC to 9ME: Referendum following petition, direction or order

102.New section 9MC gives the Secretary of State a power to make regulations concerning public petitions in relation to whether a local authority should operate a certain form of governance arrangements. It provides that regulations made under this section could require a local authority to hold a referendum where it has received a petition signed by at least 5% of local electors. Regulations may specify matters such as the form of petitions (including electronic petitions), their verification, the timing of referendums, the action to be taken by a local authority on receipt of a petition, and the manner in which and times at which the number of electors required to sign the petition is to be calculated and publicised. Regulations may also vary the 5% threshold for petitions.

103.New section 9MD allows the Secretary of State to make regulations specifying circumstances in which the Secretary of State may direct a local authority to hold a referendum on whether to adopt a particular form of governance. The regulations may include provision as to the timing of the referendum and the action to be taken by the authority in relation to it.

104.New section 9ME enables the Secretary of State, by order, to require all local authorities, or all authorities of a particular description, to hold a referendum on a particular form of governance arrangements.

New section 9MF: Further provision with respect to referendums

105.New section 9MF provides that if a local authority holds a referendum (Referendum A), it may not hold, or be required to hold, another referendum (Referendum B) for ten years, except in the following circumstances:

a)

where Referendum A was held by virtue of an order under section 9N and the proposal to operate a mayor and cabinet executive was rejected; or

b)

Referendum B is required by virtue of an order made by the Secretary of State under new section 9N.

New section 9MG: Voting in and conduct of referendums

106.New section 9MG provides that entitlement to vote at referendums is the same as the electoral franchise for local government elections. This section gives the Secretary of State the power, by regulations, to make provision for the conduct of referendums. This includes a power to apply or modify any statutory provision relating to the conduct of elections or referendums. Before making any regulations under this section that include provision as to the question to be asked in a referendum, the Secretary of State must consult the Electoral Commission.

New section 9N: Requiring a referendum on change to mayor and cabinet executive

107.This section gives the Secretary of State the power by order to require a specified local authority to hold a referendum on whether the authority should operate the mayor and cabinet executive. An order made under this section may make provision as to the date of the referendum.

New section 9NA: Effect of section 9N order

108.This section provides that should local people vote in favour of the mayor and cabinet executive at a referendum instigated by an order under new section 9N, then the local authority may not move away from that governance model.

New section 9NB: Variation of mayoral executive

109.New section 9NB provides that a local authority may not resolve to vary its existing mayor and cabinet executive arrangements without the written consent of the elected mayor. This provision only applies to proposals to vary existing arrangements, and not to proposals for changes from one form of governance arrangements to another.

New section 9O: General

110.This section provides that a local authority may not cease operating a form of governance arrangements, or vary executive arrangements, other than in accordance with this Chapter.

Chapter 5: SupplementaryNew section 9P: Local authority constitution

111.New section 9P requires a local authority to maintain a constitution and ensure that it is available for inspection by members of the public. The authority will have to supply a copy to anybody who requests one, upon payment of a reasonable fee. The constitution is to include the standing orders, a copy of the authority’s code of conduct, such information as the Secretary of State may direct and such other information as the authority considers appropriate. In the case of a local authority operating the committee system the constitution must also contain a statement as to whether it has an overview and scrutiny committee.

Section 9Q: Guidance

112.Section 9Q provides that a local authority must have regard to any guidance issued by the Secretary of State for the purposes of Part 1A of the Local Government Act 2000.

Schedule 2 Part 2: New Schedule A1 to the Local Government Act 2000 - Executive arrangements in England: further provision

113.New Schedule A1 sets out further details of the working of executive governance arrangements and makes provision about the role of church and parent governors on overview and scrutiny committees.

114.For a mayor and cabinet executive, the arrangements must allow the mayor to determine the size of the executive (subject to a maximum of 10 members - unless a different maximum is specified under new section 9C(5)). These arrangements must also require the mayor to appoint his or her own deputy mayor from amongst the executive.

115.For a leader and cabinet executive, the arrangements must allow the leader to determine the size of the executive (subject to a maximum of 10 members – unless a different maximum is specified under new section 9C(5)). The arrangements must also require the leader to appoint his or her own deputy leader from amongst the executive.

116.The Schedule permits executive arrangements to cover such matters as the conduct of meetings, and similar matters in relation to meetings of committees of the executive. It also enables the Secretary of State to make regulations for appointment of an assistant for the mayor.

117.The Schedule also makes detailed provision about the appointment of church and parent governor representatives to overview and scrutiny committees.

Section 22 - New local authority governance arrangements: amendments

118.Section 22 gives effect to Schedule 3 which makes amendments which are consequential upon the provisions of section 21 and Schedule 2.

Section 23 - Changes to local authority governance in England: transitional provision etc

119.Section 23 allows the Secretary of State, by order, to make such transitional, transitory or saving provisions as he or she considers appropriate in connection with the coming into force of sections 21 and 22 and Schedules 2 and 3.

Section 24 – Timetables for changing English district councils’ electoral schemes

120.Section 24 amends the Local Government and Public Involvement in Health Act 2007, and the Local Democracy, Economic Development and Construction Act 2009, in relation to electoral schemes in district councils. A district council in England may resolve at any time to change its scheme of elections, rather than being restricted to making this resolution during a permitted resolution period, as was previously the case. Where a district council has passed a resolution to change electoral schemes, it may not pass another such resolution for five years beginning with the day on which the first resolution is passed. Where a district council resolves to move to a scheme of whole council elections, it must also specify, in its resolution, the year in which it will hold its first whole-council election. The only restriction is that district councils in two tier areas are prevented from specifying a year in which the county council in its area holds an election (a “fallow” year). Once the district council has held its first whole-council election it will then hold whole-council elections in every fourth year afterwards. Provision is also made to provide that after a district council has passed a resolution it will continue to hold elections under its previous electoral scheme until the date it specifies as its first year of whole-council elections.

Chapter 6: Predetermination
Section 25 - Prior indications as to view of a matter not to amount to predetermination

121.Section 25 clarifies how the common law concept of "predetermination" applies to councillors in England and Wales. Predetermination occurs where someone has a closed mind, with the effect that they are unable to apply their judgment fully and properly to an issue requiring a decision. Decisions made by councillors later judged to have predetermined views have been quashed. The section makes it clear that if a councillor has given a view on an issue, this does not show that the councillor has a closed mind on that issue, so that that if a councillor has campaigned on an issue or made public statements about their approach to an item of council business, he or she will be able to participate in discussion of that issue in the council and to vote on it if it arises in an item of council business requiring a decision.

122.Section 25 applies to members of all councils in England and Wales to which there are direct elections - although it applies both to elected and to co-opted members of those councils, and also to members of National Parks Authorities and the Broads Authority.

Chapter 7: Standards
Section 26: Amendments of existing provisions

123.Section 26, and Schedule 4 which it introduces, abolish the Standards Board regime, which consists of the Standards Board for England, standards committees of local authorities, the jurisdiction of the First-tier Tribunal in relation to local government standards in England, and model codes of conduct for councillors. The abolition of the Standards Board for England and revocation of the model code of conduct will take place on a date appointed by the Secretary of State. None of the functions of the Standards Board for England are to be preserved. The power for the Secretary of State to issue a model code of conduct and to specify principles to govern the conduct of members of relevant authorities (see section 27(6)) is removed together with the requirement for relevant authorities to establish standards committees. The First-tier Tribunal loses its jurisdiction over councillor conduct issues.

124.Schedule 4 contains provision for the Secretary of State to make an order regarding the transfer of the assets and liabilities from the Standards Board for England. It also makes provision for the Secretary of State to issue directions in connection with the abolition, including directions about information held by the Standards Board for England, and makes provision for the final statement of accounts for the Standards Board for England to be prepared by the Secretary of State.

Section 27: Duty to promote and maintain high standards of conduct

125.Section 27 places a duty on a relevant authority to ensure that its members and co-opted members maintain high standards of conduct and requires such authorities to adopt a code of conduct for their members. “Relevant authority is defined by subsection (6). Section 27 provides for a parish council to adopt the code adopted by its principal authority if it wishes. In the case of the Greater London Authority, it provides that the standards functions are to be discharged jointly by the Mayor and Assembly. It also defines what a ‘co-opted member’ is and what a relevant authority is for the purpose of this Chapter.

Section 28: Codes of conduct

126.Section 28 requires a relevant authority to adopt a code whose contents must be consistent with the seven ‘Nolan’ principles of standards in public life (selflessness, integrity, objectivity, accountability, openness, honesty and leadership), and must set out the rules that the authority wants to put in place with regard to requiring members to register and disclose pecuniary and non-pecuniary interests. It requires an authority to put in place arrangements under which it can investigate an allegation of a breach of a code made in writing and, if it is considered that an investigation is warranted, requires the authority to appoint at least one independent person whose views must be sought after it has made an investigation and before it takes a decision. It allows members who have had an allegation made against them to seek the views of the independent person if they wish. The section prevents councillors, officers or their relatives or friends from being appointed as independent persons and provides for the appointment process to be publicised and transparent.

Section 29: Register of interests

127.Section 29 requires monitoring officers of relevant authorities to establish and maintain a register of members’ and co-opted members’ interests, to make the register available for inspection and to publish it on their authority’s website. It also requires the monitoring officer of a principle council to make the register of members’ interests for parish councils in its area available for inspection and to publish it on the website of the principal council. In addition, parish councils are required to publish the register on their own website, if they have one.

Section 30: Disclosure of pecuniary interests on taking office

128.Section 30 requires members of relevant authorities to notify the monitoring officer of any disclosable pecuniary interests of them or a spouse or civil partner they live with, within 28 days of taking up office. The section allows the Secretary of State to make regulations defining a “disclosable pecuniary interest”, and requires the monitoring officer to enter any notified disclosable pecuniary interest in the authority’s register, as well as any other interest notified to them, whether or not it is pecuniary.

Section 31: Pecuniary interests in matters considered at meetings or by a single member

129.Section 31 requires a member of a relevant authority to disclose a disclosable pecuniary interest that they are aware of (apart from a sensitive interest – see section 32), at a meeting or if acting alone, where any matter to be considered relates to their interest. If the interest is not already registered, it requires members to register it within 28 days. The monitoring officer must then enter the interest in the authority’s register. It prohibits a member from participating in discussion or voting on any matter relating to their interest or, if acting alone, from taking any steps in relation to the matter (subject to any dispensations – see section 33). Local authorities may also, should they so wish, amend their standing orders to require a member to leave the room when a matter in which they have a disclosable pecuniary interest is debated or voted on.

Section 32: Sensitive interests

130.Section 32 provides for details about a registered interest to be excluded from versions of the register that are available for public inspection or published where a member and monitoring officer agree that the disclosure of these details could lead to harm or intimidation of the member or their family. It provides for members to disclose only the fact that they have a disclosable pecuniary interest in the matter concerned at meetings or when acting alone.

Section 33: Dispensations from section 31(4)

131.Section 33 empowers a relevant authority, on receipt of a written request, to grant dispensations for up to four years for a member to be able to participate in or vote at meetings where they have a disclosable pecuniary interest. Authorities may grant dispensations if they consider that by not granting a dispensation, the business of the authority or committee is likely to be impeded; or that the political balance of the committee or authority is so upset as to alter the outcome of a vote; or that granting the dispensation is in the interests of residents; or that all members of the executive are unable to participate in business to be carried out by the executive; or that they consider it appropriate to grant a dispensation for other reasons.

Section 34: Offences

132.Section 34 makes it a criminal offence if a member or co-opted member fails, without reasonable excuse, to comply with requirements under section 30 or 31 to register or declare disclosable pecuniary interests, or take part in council business at meetings or when acting alone when prevented from doing so. It empowers the magistrates` court, upon conviction, to impose a fine of up to level 5 (currently £5,000), and an order disqualifying the person from being a member of a relevant authority for up to five years. It extends the time for bringing a prosecution for the offence by allowing a prosecution to be brought within 12 months of the prosecuting authorities having the evidence to warrant prosecution, but any prosecution must be brought within 3 years of the commission of the offence and only by or on behalf of the Director of Public Prosecutions.

Section 35: Delegation of functions by Greater London Authority

133.Section 35 empowers the London Assembly and the Mayor of London, acting jointly, to delegate standards functions to a committee or member of staff. This mirrors the powers local authorities have to delegate these functions to a committee or member of staff.

Section 36: Amendment of section 27 following abolition of police authorities

134.Section 36 removes police authorities from the list of “relevant authorities” in section 27(6). The Police Reform and Social Responsibility Act 2011 contains provision for the abolition of police authorities and for their replacement with police and crime commissioners. The section will be commenced when police authorities cease to exist.

Section 37: Transitional provision

135.Section 37 gives particulars of the Secretary of State’s power to make transitional provision in relation to the abolition of the Standards Board regime. Allegations of misconduct can be brought against a member up to the date when section 57A of the Local Government Act 2000 is repealed. The transitional provisions mentioned in this section could make provision for any such allegations to be transferred from the Standards Board for England to local authority standards committees, and could make provision for the penalties which can be imposed by those committees, and rights of appeal, to be modified.

Chapter 8: Pay Accountability
Section 38: Pay policy statements

136.Section 38 places a requirement on a relevant authority (being a local authority or fire authority, as defined by section 43(1)) to prepare, annually, a statement setting out the authority’s policies on the remuneration of its chief officers, the remuneration of its lowest paid employees and the relationship between the remuneration of its chief officers and the remuneration of its employees who are not chief officers. Chief officers are the most senior officers of the authority. Authorities are required to state the definition of lowest paid employees they have adopted in the statement, and explain the reasons for adopting that particular definition. The statement may also set out the authority’s policies relating to other terms and conditions applying to chief officers. In preparing its statement, the authority must have regard to any guidance issued or approved by the Secretary of State (if an English authority) or Welsh Ministers (if a Welsh authority) (see section 40).

Section 39: Supplementary provisions relating to pay policy statements

137.Section 39 requires the pay policy statement to be approved by, and allows the statement to be amended by, resolution of the authority. The statement may be amended even during the financial year to which it applies. The statement must be published. The authority must have regard to any guidance issued or approved by the Secretary of State (if an English authority) or Welsh Ministers (if a Welsh authority) when performing its functions under this section (see section 40).

Section 41: Determinations relating to remuneration

138.Section 41 requires the relevant authority to comply with its pay policy statement for the relevant financial year when making a determination that relates to the remuneration, or other terms and conditions, of a chief officer of the authority.

Section 42: Exercise of functions

139.Section 42 prevents the functions in this Chapter from being exercised by the executive of the authority, and prevents the passing of a resolution under this Chapter from being delegated by the authority to a committee or an individual officer.

Chapter 9: Commission for Local Administration in England
Section 44: Arrangements for provision of services and discharge of functions

140.Section 44 allows the Commission for Local Administration in England (known as the Local Government Ombudsman service) to make arrangements with the Parliamentary and Health Service Ombudsman, and a housing ombudsman to share administrative services; and also makes express provision for delegation of administrative functions by the Commission to individuals such as employees of the Commission.

Chapter 10: Miscellaneous Repeals
Section 45: Repeal of duties relating to promotion of democracy

141.This section removes the requirements for principal local authorities, in England and Wales, to provide information to people about how local governance systems work, including information on the role of the council, councillors, other relevant public bodies and civic roles such as magistrates, and how people can get involved.

Section 46: Repeal of provisions about petitions to local authorities

142.This section removes the requirements for principal local authorities in England and Wales to make, publish and comply with a scheme for the handling of petitions made to the authority, and to provide a facility for making petitions in electronic form to the authority. It also removes the powers of the Secretary of State and Welsh Ministers to make provision by order in relation to petitions schemes.

Section 47: Schemes to encourage domestic waste reduction by payments and charges

143.This section removes sections 71 to 75 of and Schedule 5 to the Climate Change Act 2008 and so removes the powers for local authorities to pilot charge-and-reward waste reduction schemes. Local Authorities will still be free to introduce schemes which reward householders for waste reduction, under their well-being powers or general powers of competence, as appropriate, but will no longer need to complete the processes required under the Climate Change Act 2008.

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