FI16640
Request
- Is devolution & local government reorganisation mandatory?
- If yes, please quote the relevant authority or
- If not, was the non acceptance option presented as an option at any meetings of your Full Council or Cabinet where the matter of reorganisation or devolution participation was discussed or approved.
Response
- Yes.
- Information can be found here: https://www.kent.gov.uk/about-the-council/local-government-reorganisation-and-devolution.
- Not applicable.
Internal Review Documents
Internal Review Request:
In response to the question: “Is devolution & local government reorganisation mandatory?” The Council answered: “Yes.”
When asked to quote the relevant authority, the Council provided a hyperlink to a Kent County Council webpage.
This does not constitute identification of statutory authority.
Under section 1 of the Freedom of Information Act 2000, a public authority is required to provide recorded information it holds. Where a public authority asserts that a legal obligation exists, it must be capable of identifying the legislative basis for that assertion.
I therefore request that the internal review address the following points:
Please identify the specific statutory provision under which Dover District Council considers participation in devolution and/or local government reorganisation to be mandatory.
If the Council relies upon a direction or order issued under the Local Government and Public Involvement in Health Act 2007 (or any other enactment), please provide the reference number and date of such direction or order.
If no such statutory direction exists, please clarify whether the original response intended “mandatory” in a legal sense or merely as a matter of policy expectation.
Please confirm whether any recorded legal advice is held by the Council stating that non-participation would be unlawful.
The provision of a webpage link does not satisfy the requirement to identify the legal authority for a claim of statutory compulsion.
This request seeks clarification of the legal basis for the Council’s assertion.
Internal Review Response:
Statutory framework for single tier Local Government.
Local Government and Public Involvement in Health Act 2007
The 2007 Act has a procedure for creating a single tier of local government in areas which were previously comprised of two tiers.
The first stage of the procedure under section 2 or the 2007 Act is that the Secretary of State may invite any “principal authority” (defined in section 1(1) as a county or district council) to make a proposal for a single tier of government in an area which currently has two tiers of local government. The second stage under section 3 of the Act is the submission of a proposal by a local authority in response to an invitation.
When the Secretary of State receives a proposal in response to an invitation under section 2, he may request the Local Government Boundary Commission to advise him: s. 4(2). That advice may recommend that the Secretary of State implement the proposal without modification; that he does not implement it; or that an alternative proposal be implemented: ss. 5(3)(a)-(c). Before making an alternative proposal, the commission must publish a draft of the proposal, invite representations and take them into account: ss. 6(4)-(5). Representations on a commission proposal may be made to the Secretary of State: ss. 6(6)-(The third stage of the procedure is implementation, provided for in section 7. When the Secretary of State has received a proposal in response to an invitation under section 2 he may under section 7(1)(a) implement the proposal by order with or without modification; under section 7(1)(b) if he has received an alternative proposal from the Commission under section 5, implement by order that alternative proposal with or without modification; or under section 7(1)(c) decide to take no action. Before implementing a proposal under section 7(1)(a) he must consult every authority affected by the proposal, except the authority or authorities which made it, and such other persons as he considers appropriate: s. 7(3). This does not apply if the proposal was made jointly by every authority affected by it: s. 7(5).
Under section 11, the order to implement a proposal or recommendation may deal with the wide range of matters set out. There is further provision for implementation orders to address incidental, consequential, transitional or supplementary provisions in sections 13 (1) and section 14 (1). Section 15(1) sets out a list of matters to which the references to “incidental, consequential, transitional or supplementary provision” in sections 13 and 14 relate. These include matters such as the transfer of functions, property and rights between local authorities.
Section 15(2)-(3) then contains powers, enabling the Secretary of State to amend Acts by secondary legislation.
Section 21 provides for what are termed “pre-commencement invitations” which the Secretary of State made to local authorities before the commencement of the power in section 2. These are treated as if made under the Act.
The English Devolution White Paper sets out an expectation that all two-tier areas such as Kent will develop proposals for LGR.
Following on from this, the Sectary of State invited the Leaders of all fourteen councils in Kent and Medway to submit proposals for a single tier of local government under Part 1 of the Local Government and Public Involvement in Health Act 2007 (‘the 2007 Act’).
As above, the 2007 Act has procedures for creating a single tier of local government in areas which were previously comprised of two tiers.
Following the consultation described above, if the Secretary of State decides to proceed with one of the reorganisation proposals (with or without modifications), then a detailed Structural Change Order dealing with the transfers of powers, property, assets, and staff, as well as any boundary and electoral changes necessary to give effect to the reorganisation will need to be laid in Parliament. This will also set out a timescale for implementation of the new structures and set out interim arrangements.
In terms of what is Mandatory, once the Secretary of State decides to proceed with a proposal, all authorities must implement what is set out in the Structural Charges Order, within the timelines proposed.