Sections 112 to 122: Other
Section 112: Standards Board for England: delegation
336.This section gives the Standards Board for England the power to delegate any of its functions to:
an officer or servant of the Board;
a committee or sub-committee of the Board; or
an individual member of the Board.
337.The Standards Board is an independent body responsible for the promotion and maintenance of high standards of conduct by members and co-opted members of relevant authorities in England.
338.The Standards Board was set up and is governed by the Local Government Act 2000. The Board has a number of functions conferred by the Act, one of which is to consider a written allegation and decide whether the allegation should be referred to an ethical standards officer for investigation.
339.There is no provision in the Act which gives the Standards Board the ability to delegate functions. The number of complaints received by the Board and the ability to cope with the demands made by those complaints has led to the view that a power of delegation is required in order to allow Board members to fulfil their proper role of setting strategic guidance and direction.
Section 113 : Standards committees etc
340.This section enables local authority standards committees to appoint sub-committees. It also enables the monitoring officer of an authority to nominate another person to carry out duties when the monitoring officer believes he himself ought not to carry out those duties.
341.The Local Government Act 2000 required each relevant local authority to establish a standards committee. Standards committees have the general functions of promoting high standards of conduct, and of assisting members to observe the authority’s code of conduct.
342.The 2000 Act also envisages that standards committees could in certain circumstances consider reports of alleged misconduct by members of the authority and subsequently take actions against members found to have breached the code of conduct. This function of considering reports into misconduct allegations is to be provided for in regulations which the Secretary of State intends to make under section 66 of the 2000 Act. In order that standards committees will be able to regulate the number of members of the committee present when considering such cases, it is necessary to provide for the creation of sub-committees.
343.Regulations under section 66 of the 2000 Act will also provide for the investigation of misconduct allegations to be carried out by the monitoring officer of an authority. The 2000 Act gives this duty to the monitoring officer personally. However, there may be circumstances where it would be improper for the monitoring officer to conduct the investigation – for example if he or she (as the authority’s principal legal adviser) has previously given advice to the member concerned on the application of the code. This section will allow the monitoring officer to nominate another person to conduct the investigation. The nominated person could be another employee of the authority, or someone outside – for example the monitoring officer of a neighbouring authority.
Section 114: Paid time off for Councillors etc not to be political donations
344.Where any salary is paid to an employee by an employer in respect of time off taken in order to undertake duties as a local councillor, this section ensures that the value of the salary is not classified as a political donation under the Political Parties, Elections and Referendums Act 2000 (“PPERA”).
345.Schedule 7 to the PPERA controls donations made to a person in his or her capacity as a councillor in connection with his or her political activities. It was previously considered prior to the passing of the Local Government Act 2003, that where an employee was a councillor, and was allowed paid time off work to carry out council duties, the pay for the time off constituted a controlled donation. This ran counter to the Government’s intention that the provisions of the PPERA should not apply to the receipt by a councillor of paid time off for carrying out his or her duty as a councillor. This section provides that the value of any salary paid to an employee by an employer in respect of time taken off in order to undertake “qualifying business” as a local councillor is not a donation for the purposes of Schedule 7 to the PPERA.
346.“Qualifying business” relates to the business of the authority, whether conducted by the authority itself, its executive (or any committee or member of the executive) or any of its committees or sub-committees. Qualifying business also relates to any duties that a councillor may carry out for:
other bodies to which the councillor has been appointed or nominated by the council of which the councillor is a member, and
any public bodies to which the councillor has been appointed , whoever makes the appointment.
347.The time off for which pay does not count as a political donation is time off for a widely defined range of duties, including the doing of anything for carrying out the functions of the council to which a councillor has been elected and the doing of anything for carrying out any functions of another council where that other council has delegated the discharge of those functions to the councillor’s council.
348.The section applies retrospectively, so that any pay for time off which may have been granted to councillors since 16th February 2001, when the requirements of Schedule 7 to the PPERA came into force, is no longer considered a political donation.
349.The section extends (see section 129(5)) to England and Wales, and also to Northern Ireland and Scotland, but only partially in the latter case. For, although the section amends an earlier enactment that extends throughout the United Kingdom, a similar amendment has been made in Scotland by section 42 of the Local Government in Scotland Act 2003, which received Royal Assent on 11 February 2003. However, this Scottish Act is able to amend the earlier enactment only so far as it is part of the law of Scotland that can be amended by the Scottish Parliament. In particular, the Scottish Parliament cannot amend the law of Scotland to confer or remove functions exercisable otherwise than in or as regards Scotland. The earlier enactment, though, affects conduct throughout the United Kingdom. The section therefore amends the existing enactment, to the extent that it is part of the law of Scotland, only so far as the Scottish Parliament could not amend it. This means that the earlier enactment is fully amended throughout the United Kingdom.
Section 115: Overview and scrutiny committees: voting rights of co-opted members
350.Section 115 and paragraph 80 of Schedule 7 modify the Local Government Act 2000 so as to provide local authorities in England with a power to grant voting rights to members of overview and scrutiny committees who are not members of the authority. The purpose of the change is to meet a commitment given in the Local Government White Paper of December 2001 (Strong Local Leadership – Quality Public Services).
351.Section 115 inserts three paragraphs (paragraphs 12, 13 and 14) into Schedule 1 to the Local Government Act 2000.
352.Paragraph 12 allows a local authority to permit co-opted members of an overview and scrutiny committee, being members of the committee who are not members of the authority, to vote at meetings of that committee. Such a permission may only be given in accordance with a scheme made by the local authority. Such a scheme may include provision for the maximum or minimum numbers of co-opted members with voting rights.
353.Paragraph 13 grants the Secretary of State power to make regulations in relation to the exercise by authorities of the power to grant voting rights to co-opted members. It gives the Secretary of State:-
the power to make regulations requiring authorities to include certain provisions within their schemes;
the power to make regulations requiring local authorities to notify the Secretary of State of the making, variation or revocation of schemes; and
the power to direct a local authority to vary its scheme.
354.Paragraph 14 requires an authority to make copies of its scheme available for inspection by members of the public at its principal office. An authority must also publish a notice recording the making or variation of the scheme, the details of the scheme, and details of how the scheme may be inspected by the public, in one or more local newspapers. If the scheme is revoked an authority must publish a notice indicating this.
355.Paragraph 80 of Schedule 7 amends section 21(10) of the Local Government Act 2000 so that the provision in that section that members of an overview and scrutiny committee who are not members of the local authority may not vote is subject to paragraphs 12 to 14 of Schedule 1 to the Act, which are inserted by section 115.
Section 116: Local polls
356.This section confirms, by creation of an express power, the right of a local authority to conduct an advisory poll. There is no obligation on a local authority to hold such a poll, nor any requirement to act in accordance with the result of such a poll.
357.The extent of this express power is broadly drawn, allowing the local authority to hold a poll on any matter relating to the services for which it is responsible (including where these may be delivered by a third party), or the finance that it commits to those services, or any other matter that is one relating to the authority’s power under section 2 of the Local Government Act 2000 (authority’s power to promote well-being of its area).
358.The section also provides express freedom to a local authority in determining, for any poll it proposes to hold, who to poll and how the poll is to be conducted. The clause also provides for the Secretary of State in England and the National Assembly for Wales in Wales to be able to issue guidance, to which local authorities must have regard, on facilitating participation by disabled people in a local poll.
Section 117: Generally accepted accounting practice.
359.The Secretary of State and the National Assembly for Wales are empowered to amend legislation by order in the light of generally accepted accounting practice. For local government, the relevant practices are mainly those prescribed in the codes issued by the Chartered Institute of Public Finance and Accountancy. The power is likely to be used to update local government accounting arrangements in line with developments in national standards.
Section 118: Appropriate sum under section 137(4) of the Local Government Act 1972 :
360.Section 118 amends section 137(4) of the Local Government Act 1972. Section 137 permits parish and town councils in England, and community councils in Wales, to spend up to a given amount in a financial year on items that are of direct benefit to their area in relation to which no other powers of expenditure exist. The amount is found by multiplying the appropriate sum by the relevant population of the authority’s area. {The appropriate sum in England, which was set by section 137(4AA)(c), is £3.50 per elector, but this is due to be increased in advance of the Act, by statutory instrument, to £5.00 per elector in time for the financial year 2003/04. The appropriate sum is currebtly £5.00 per elector. This was set in England by the Local Authorities (Discretionary Expenditure Limits)(England) Order 2000 (SI 2002/2878) and in Wales by the Local Authorities (Discretionary Expenditure Limits) (Wales) Order 2000 (SI 2000/9000).
361.Section 118 provides for the appropriate sum to be determined in accordance with a new Schedule 12B to the 1972 Act.
362.The Schedule states that the appropriate sum for the financial year in which the Act comes into force, will be £5.00. It also specifies that the sum will automatically be increased for each financial year thereafter in line with the annual change in the retail prices index. This is achieved by multiplying the appropriate sum for the preceding financial year by the ratio between the retail prices index for September of the preceding financial year and the corresponding figure a year earlier.
363.The Schedule also permits the Secretary of State to specify, by order, an alternative appropriate sum to that calculated with reference to changes in the retail prices index for parish and town councils in England; and for the National Assembly for Wales to specify an alternative appropriate sum for community councils in Wales.
Section 119: Use of fixed penalties for leaving litter and dog fouling offences.
364.Section 119 makes provision in response to the commitment made in the Local Government White Paper of December 2001 (Strong Local Leadership – Quality Public Services). Subsection (1) of section 119 allows local authorities to retain any sums which they receive from fixed penalties for leaving litter and dog faeces; these fixed penalty receipts will no longer have to be paid to the Secretary of State (in relation to England) or the National Assembly for Wales (in relation to Wales). Under subsections (2) and (3)(a) & (b) of this section an authority will be able to use its fixed penalty receipts to pay for its statutory functions relating to litter and dog faeces, including the function of giving fixed penalty notices for leaving litter and failing to remove dog faeces.
365.The Secretary of State and the National Assembly for Wales are given the power to make regulations adding to the activities which an authority may finance using its fixed penalty receipts (see subsection (3)(c) of section 119). So, for example, an authority could be given the ability to spend its fixed penalty receipts on specified activities related to improving the local environment which are not carried out under the provisions mentioned in subsections (3)(a) and (b). However, the new regulation making power will be sufficiently wide to give an authority complete freedom as to how its spends its receipts (see subsection (4) of section 119). Note that the regulation making power is referred to in subsection (2)(f) of section 100 (exercise of powers by reference to English authorities’ performance categories).
Section 120: Regulation of cosmetic skin piercing and skin-colouring businesses
366.Section 120 amends section 15 of the Local Government (Miscellaneous Provisions) Act 1982 so that local authorities have powers to require persons carrying on the businesses of cosmetic piercing (referred to in the section as “cosmetic piercing”) and semi-permanent skin-colouring, including micropigmentation, semi-permanent make-up and temporary tattooing, to register themselves and their premises and to observe byelaws on hygiene and cleanliness. This amendment brings these businesses under the same regulatory framework that already exists in the 1982 Act for acupuncture, tattooing, ear piercing and electroysis. This section should be read in conjunction with Schedule 6 which contains transitional provisions.
Schedule 6: Regulation of cosmetic skin piercing and skin-colouring businesses
367.Schedule 6 introduces transitional provisions to accompany section 120. The Schedule provides that:
the amendment does not by itself alter the descriptions of persons and premises already registrable under section 15 of the Local Government (Miscellaneous Provisions) Act 1982 for tattooing, ear piercing and electrolysis.
the amendment does not affect pending local authority resolutions to apply section 15 of the 1982 Act in their area.
where a local authority has already resolved that section 15 of the 1982 Act should be brought into force in their area for tattooing, ear piercing and electrolysis the local authority will nevertheless be able to apply the registration and byelaws regime to cosmetic piercing and semi-permanent skin-colouring.
a person and business already registered for ear piercing shall be counted as registered for cosmetic piercing until cosmetic body piercing is subsequently provided when a new registration would be required.
Section 121: Fire brigade establishment schemes etc
368.Section 121 repeals sections 19(3) to (6) and 19(8) of the Fire Services Act 1947 (FSA 1947) and paragraph (a) of section 7(2) of the Fire Services Act 1959 (FSA 1959) in respect of England and Wales. It removes the requirement on a fire authority to provide information on its establishment scheme annually to the Secretary of State, and to obtain the Secretary of State’s approval before varying its establishment scheme by closing a fire station or reducing the number of fire appliances or firefighting posts. It also removes the Secretary of State’s powers in relation to the making of establishment schemes, and the powers to order public local inquiries for the purposes of his functions under section 19 Section 7(2)(a) of the FSA 1959 applies section 19 to combined fire authorities newly created by combination scheme orders made under sections 5 and 6 of the FSA 1947. Part 1 of Schedule 8 details the extent of the repeals in the FSA 1947 and the FSA 1959.
369.Section 19(3) of the FSA 1947 is unnecessary as fire authorities provide information on their establishments by a number of other means. The repeal of sections 19(4), (5) and (6) will leave decisions on an establishment scheme to be taken locally by the fire authority. The Secretary of State’s power under section 19(8) to hold a public local inquiry is also unnecessary; this power is retained under section 33(1) of the FSA 1947. (Section 19(1) and (2) of the FSA 1947 remain in force).
370.The repeal of section 19(3) to (6) and 19(8) of the FSA 1947 and section 7(2)(a) of the FSA 1959 is consistent with the approach on the removal of unnecessary requirements for consents set out in the Local Government White Paper “Strong Local Leadership – Quality Public Services” published in December 2001; and with the recommendation of the Independent Review of the Fire Service chaired by Professor Sir George Bain published in December 2002.
Section 122: Repeal of prohibition on promotion of homosexuality
371.Section 122 repeals section 2A of the Local Government Act 1986 which prohibited local authorities from intentionally promoting homosexuality or publishing material with the intention of doing so or from promoting teaching in schools of the acceptability of homosexuality. A series of consequential provisions are also included in the Act to repeal provisions in other legislation that refer to section 2A.