2003 Chapter 10

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     These notes refer to the Regional Assemblies (Preparations) Act 2003 (c.10) which received Royal Assent on 8 May 2003     

REGIONAL ASSEMBLIES (PREPARATIONS) ACT 2003

     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Regional Assemblies (Preparations) Act 2003 which received Royal Assent on 8 May 2003. They have been prepared by the Office of the Deputy Prime Minister in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none has been given.

SUMMARY

3.     The Act extends only to England and Wales.

4.     This Act provides the Secretary of State with the power to order referendums on the establishment of elected regional assemblies ("assembly referendums"), in any of the eight English regions outside Greater London. If an assembly referendum is to be held in a region, the Act also requires the Secretary of State to hold "local government referendums" in areas with two tiers of local authorities about the Government's proposed options for single-tier local government in those areas. The assembly referendum and associated local government referendums in a region are to be held on the same date.

5.     Before ordering an assembly referendum, the Act requires the Secretary of State to have received recommendations from the Boundary Committee for England ("the Boundary Committee") as to the restructuring of local government in the two-tier areas of the region into a single tier. So the Act provides him with the power to direct the Boundary Committee to carry out a local government review of a region to produce such recommendations, if he is considering holding an assembly referendum there.

6.     In carrying out a review the Boundary Committee must recommend at least two options for single-tier local government for each part of the region that currently has both a county council and district councils - referred to by the Act as a "county area". The Act also requires the Secretary of State to seek the Electoral Commission's advice on such matters as the electoral areas for a regional assembly, following the holding of an assembly referendum. And it creates a new power for funding the existing regional chambers.

7.     This Act is the first step towards implementing the proposals in the White Paper Your Region, Your Choice: Revitalising the English Regions ("the White Paper"), which was published on 9 May 2002 and set out how the Government proposes to deliver the Labour Party's 2001 manifesto commitment that:

"provision should be made for directly elected regional government to go ahead in regions where people decided in a referendum to support it and where predominantly unitary local government is established."

BACKGROUND

8.     The White Paper set out the Government's policy to enable elected regional assemblies to be established in regions (outside London) where the inhabitants of a region vote for one in a referendum. The decision on where a referendum will be held will be largely based on whether the Secretary of State considers that there is sufficient public interest in a region in holding one. So it may be that referendums on the establishment of a regional assembly are not held in all eight regions at one time. Indeed, it may be that in the first instance only one, two or three are held. The Act (additionally to what was proposed in the White Paper) further requires separate referendums to be held, in areas with two tiers of local government, about options for the reorganisation of local government into a single tier in the event of an elected assembly being established.

9.     The White Paper proposed that, before a referendum on an elected assembly is to be held in a region, the Boundary Committee must first conduct a review of local government in that region. In areas that currently have a county council and district councils, a regional assembly would add a third tier of elected government below the national level, increasing the layers of government.

10.     Under the Act, the Boundary Committee is required to review local government in a region before the holding of an assembly referendum there. However, in addition to what was set out in the White Paper on local government reviews, the Boundary Committee is to recommend at least two options for a single tier of local government in those parts of the region that currently have two tiers.

11.     Between 1974 and 1986 a two-tier system of local government operated throughout the United Kingdom. Under a two-tier system, county councils are responsible for social services, strategic planning, education, refuse disposal, traffic, highways, libraries, fire and consumer protection. District councils are responsible for local planning, housing, leisure services and parks, markets and fairs, cemeteries and crematoria, tourism, electoral registration, environmental health and refuse collection.

12.     In 1986, the Greater London Council and the six metropolitan county councils were abolished. Since then the London boroughs (in the capital) and metropolitan districts (in the six major conurbations of Tyne & Wear, West Yorkshire, South Yorkshire, Greater Manchester, Merseyside and the West Midlands) have formed a unitary tier of local government.

13.     In the early 1990s, the Local Government Commission for England looked at the case for replacing the two-tier structure of local government with a unitary structure in the rest of England. As a result, a mixed system was established whereby some urban areas moved away from the two-tier system to a unitary structure, with one body responsible for all the local government functions previously carried out by district and county councils; other areas remained under the two-tier system. Around the same time, following public consultation in Scotland and an independent review in Wales, a unitary system was introduced in those nations.

Other relevant legislation

14.     The Local Government Act 1992 ("the 1992 Act") and the Political Parties, Elections and Referendums Act 2000 ("the PPER Act") are both relevant for the purposes of this Act and this Act should be read alongside them.

15.     The 1992 Act established the Local Government Commission for England to carry out reviews of local government structure, boundaries and electoral areas in England and to recommend changes, when so directed by the Secretary of State. In April 2002 these functions of the Local Government Commission for England were transferred, with some modifications, to the Electoral Commission by the Local Government Commission for England (Transfer of Functions) Order 2001 (SI 2001/3962). A number of the Secretary of State's powers were also transferred to the Electoral Commission, including the responsibility for initiating electoral reviews. Structural, boundary and electoral reviews are now undertaken by the Boundary Committee under direction by the Electoral Commission. Many of the provisions in the 1992 Act are relevant to local government reviews by the Boundary Committee under this Act.

16.     The PPER Act established the Electoral Commission (as well as the Boundary Committee). Among other things, the PPER Act sets out the legal framework within which national and regional referendums will be held in future (see Part 7 of that Act). These provisions apply to assembly referendums (and to local government referendums to the extent that they are applied by an order under section 2(9) of this Act). The key provisions as regards assembly referendums are:

• the Electoral Commission is required to publish a statement of its views as to the intelligibility of the referendum question (section 104(2)) (the Commission commented under this provision on the wording of the assembly referendum question and preamble on 25 November 2002, and, in addition on 16 April 2003);

• the Commission is responsible for appointing the Chief Counting Officer for a referendum, who then appoints counting officers for local authority areas in the region (section 128). These officers are responsible for conducting a referendum;

• 'permitted participants' (political parties, campaign groups and other similar bodies) in a referendum must be registered with the Electoral Commission. The Commission is able to decide to designate a group to represent the 'yes' campaign and a group to represent the 'no' campaign at any referendum. If it does so, these groups will be entitled to financial support and other assistance (such as the distribution of a 'referendum address' free of charge and the use of rooms free of charge for public meetings) (see sections 108 to 110 and Schedule 12);

• the Secretary of State may, after consulting the Electoral Commission, make an order capping the amount that a permitted participant can spend (see section 118 and paragraph 2 of Schedule 14);

• expenditure by other bodies and individuals at a referendum is also regulated (see Chapter II of Part 7);

• there are statutory stages in the run-up to a referendum vote, including a period for permitted participants to register with the Commission;

• there are restrictions on the promotional material which central and local government can issue in the 28-day period before the referendum date (see section 125).

17.     The eight English regions (outside London) to which this Act applies are those specified in Schedule 1 to the Regional Development Agencies Act 1998 ("the RDA Act"). They are the North West, North East, Yorkshire and the Humber, East Midlands, East of England, West Midlands, South East and South West. The Government Offices for the regions (created in 1994) and other parts of central government also operate to these boundaries.

Regional chambers

18.     Regional chambers (designated under section 8(1) of the RDA Act) contribute to the regional economic strategies produced by Regional Development Agencies and scrutinise their delivery. In most regions they also advise the Secretary of State on the content of regional planning guidance prepared by him under section 31(6) of the Town and Country Planning Act 1990. The intention of Ministers, as stated in the White Paper, is that all eight regional chambers should carry out this role, in the absence of an elected regional assembly. Where an elected regional assembly is established, the assembly will carry out this function. A new power is provided so that the Government can make arrangements for funding, amongst other things, the regional planning activities of the chambers.

OVERVIEW

19.     This Act:

• makes provision enabling the Secretary of State to order referendums (assembly referendums) on the establishment of elected regional assemblies to be held in any of the English regions outside London, including conditions to be satisfied before the making of such an order;

• requires the Secretary of State to order referendums (local government referendums) to be held in each "county area" of a region where an assembly referendum is being held, on the same date as that referendum, about the Government's proposals for the unitary structure of local government in such areas;

• sets out, in respect of both assembly and local government referendums, the referendum questions and the statements to precede them on the ballot paper, and who is entitled to vote in the referendums. It also sets out the frequency of any subsequent assembly referendum following a 'no' vote (Part 1);

• provides the Secretary of State with power to direct the Boundary Committee to carry out a local government review in any of the English regions outside London to consider structural change to existing two-tier local authorities. Structural change must lead to a wholly unitary local government structure in the region. The Secretary of State must have received recommendations from the Boundary Committee with respect to a region before ordering an assembly referendum to be held in the region. The criteria for deciding in which region(s) reviews should be carried out, the procedure for reviews and the implementation of local government reorganisations are provided for in Part 2;

• requires the Secretary of State (once certain preconditions have been satisfied) to seek the Electoral Commission's advice on one or more matters relating to the electoral areas for, or the total number of members of, an assembly (Part 3);

• creates a new power for funding the activities of existing regional chambers (Part 4);

• authorises expenditure relating to the matters referred to above and the preparatory work to be undertaken in connection with regional assemblies (Part 5).

Territorial application: Wales

20.     This Act concerns only the English regions (excluding London). It does not affect the functions of the National Assembly for Wales.

COMMENTARY ON SECTIONS

Part 1: Referendums

Section 1: Assembly referendums

21.     Section 1 gives the Secretary of State the power to order a referendum to be held in a region on the establishment of a regional assembly there. Such an order must specify the date of the referendum.

22.     Two preconditions need to be satisfied before the Secretary of State can make an order for the holding of an assembly referendum. The first precondition is that he must consider the level of interest in the region in holding such a referendum (subsection (4)). However, subsection (6) means that the Secretary of State does not, in fact, need to consider the level of interest in subsection (4) if certain requirements are met. These are, first, that the order is made within two years of a direction to the Boundary Committee to conduct a local government review of the region concerned (prior to which he will have already considered the level of interest in the holding of an assembly referendum). Secondly, that, before making the order, he has no cause to think that the level of interest in holding a referendum in the region has changed materially since giving the direction.

23.     What constitutes a material change is defined in subsection (7). In effect, the Secretary of State is required to cast himself back to the time when he gave a direction to the Boundary Committee in relation to the region. He must then ask himself whether he would have given that direction if the level of interest which he thinks exists now (when he is considering making an order for the holding of an assembly referendum) had been the same when he gave the direction.

24.     If the conditions in subsection (6) are not satisfied the Secretary of State has to consider the level of interest. In this connection subsection (8) requires him to consider views expressed, information provided to him, and any published material he thinks appropriate.

25.     The second precondition to the making of an order for a referendum is that the Boundary Committee have made recommendations arising out of their review of the local government structure of the region (subsection (5)).

Section 2: Local government referendums

26.     Where the Secretary of State makes an order causing an assembly referendum to be held, subsection (2) of section 2 requires him to make an order causing a referendum to be held in each county area in the region about the Government's proposals for the structure of local government in that area. That is to say, he must also hold local government referendums in the region.

27.     Subsection (5) provides that the options to be put to the voters in each county area are such of the recommendations for structural change of the Boundary Committee as the Secretary of State thinks appropriate (subject to any modifications that he makes to those recommendations). There must be at least two options for structural change for each county area in the region.

28.     "County area" is defined in subsection (3) as the area of an existing county council where there are both county and district councils. But if one or more of the options for structural change is for a unitary authority with an area crossing the county boundary, the "county area" is the combined areas of the county councils in question (subsection (4)).

29.      Subsection (6) means that a local government referendum under subsection (2) must be held on the same day as the assembly referendum for the region.

30.     Subsection (7) prevents the Secretary of State from making an order for the holding of a local government referendum until six weeks after he has received the recommendations of the Boundary Committee.

31.     Subsection (8) gives the Secretary of State a power to vary (subject to Parliamentary approval) an order for a local government referendum. This permits, for example, minor corrections to the description of the options for a county area.

32.     But the Secretary of State cannot revoke an order for a local government referendum unless he also revokes the order for the assembly referendum (in which event he is obliged to revoke the order for a local government referendum). This prevents him from cancelling the local government referendum(s) while proceeding with the assembly one.

33.     Subsection (9) provides a Minister of the Crown with a wide power to make provision, by order, in connection with local government referendums. For instance, this allows provision to be made regulating the conduct of such referendums; requiring the Electoral Commission to report on how they are administered; and prescribing rules about the publication of information relating to them. The power in subsection (9) includes power to apply any enactment relating to elections or referendums, to modify provisions made under the PPER Act in relation to an assembly referendum and to provide for the creation of offences.

Section 3: Referendum questions

34.     Section 3 sets out the question to be asked in assembly referendums and the first part of the question to be asked in local government referendums. It also sets out brief preambles about the purpose of each referendum (which must precede each question on the ballot paper).

35.     The section contains two versions of the preamble for a local government referendum, depending on whether there is a single ballot paper or two separate ballot papers. The Government's aim, where possible, is to have a single ballot paper where an assembly referendum is held simultaneously with a local government referendum. But it might be necessary to have separate ballot papers, for example where the local government options are numerous or particularly complex and would render a single ballot paper unwieldy.

36.     An order under section 2(2) causing a local government referendum to be held must set out the text of the options that will appear in the referendum question and any explanatory material about the options that will be made available to voters when voting. Subsection (7) requires the Secretary of State to consult the Electoral Commission on these things. When laying an order he must report to each House of Parliament the Commission's response as to the intelligibility of the text of the options and any views they express on the explanatory material.

Section 4: Entitlement to vote

37.     Section 4 provides for who is entitled to vote at each type of referendum under the Act. So under subsection (1), a person is entitled to vote in an assembly referendum if, on the date of the referendum, he is entitled to vote at the election of councillors for any electoral area in the region.

38.     Similarly, under subsection (2), a person is entitled to vote in a local government referendum if, on the date of the referendum, he is entitled to vote at the election of councillors for any electoral area in the county area where the referendum is being held. Those living in existing unitary areas are not entitled to vote in a local government referendum.

39.      Subsections (3) and (4) provide a regulation-making power that allows provision to be made qualifying the basic entitlement to vote set out in the preceding subsections. Thus provision may be made so that alterations to a register of electors are to be ignored if made after a specified date. So, for example, if a referendum is to be combined with a local government election, it may be desirable to ensure that alterations to a register of electors for the purposes of entitlement to vote in a referendum can be made no later than they could be made for the election.

Section 5: Referendum period

40.     Section 5 requires the Secretary of State to set, by order, the referendum period for each assembly referendum. This relates to provisions in Part 7 of the PPER Act which impose limits on expenditure and controls on the publication of referendum-related material during the referendum period. This period will generally need to be a minimum of 10 weeks (by virtue of sections 103 and 109 of the PPER Act).

Section 6: Further referendums

41.     Section 6 provides that, where an assembly referendum in a region has resulted in a 'no' vote, a second or subsequent assembly referendum cannot be ordered for at least another seven years.

42.     Subsection (4) enables the Secretary of State to cause a local government referendum to be repeated (independently of an assembly referendum) where the result of a prior local government referendum is declared or held to be invalid by a court. Subsections (5) and (6) apply provisions in section 2 of the Act to any such repeat referendum as if it is a local government referendum ordered under section 2(2). But no further local government referendums are required to be held in a county area where the result is not invalid.

43.     Subsection (7) has the effect that the Secretary of State is only required to consult the Electoral Commission on the wording of the question or explanatory material for any such repeat referendum where that wording or material differs from the first local government referendum.

Section 7: Combination of polls

44.     Section 7 enables provision to be made by order for the polls at an assembly or local government referendum to be combined with one another or with other polls for any election or at referendums held under Part 2 of the Local Government Act 2000.

45.     Subsection (2) expressly provides for the order-making power to cover the making of provision in connection with the combination of polls, the creation of criminal offences and the application of enactments relating to referendums or elections.

46.     Examples of what such an order might provide are: a requirement for the same polling station to be used; for different coloured ballot papers to be used; and the application (with or without modifications) of provision made under section 129(1) of the PPER Act.

Section 9: Provision of information to voters

47.     Under section 108 of the PPER Act, the Electoral Commission has the power to designate one "permitted participant" (such as a political party or a campaign group) as a campaign representative for each possible outcome of an assembly referendum. The benefits of such a designation are outlined in paragraph 16 above.

48.     But if, for whatever reason, the Electoral Commission do not act under section 108, section 9 gives the Commission the power to make available to those entitled to vote in an assembly referendum information aimed at promoting awareness about the arguments for and against each answer to the referendum question.

49.     Subsection (6) similarly enables the Electoral Commission to provide information for persons entitled to vote at a local government referendum in order to promote awareness about the arguments relating to the options proposed for unitary local government. This power is not subject to the procedural requirements that apply to the power to provide information to voters in assembly referendums.

Section 10: Expenditure

50.     Section 10 enables provision to be made, amongst other things, for payment by the Electoral Commission of counting officers' charges in connection with referendums held under Part 1 of the Act.

Section 11: Legal challenge

51.     Section 11 circumscribes the circumstances under which the formal result of a referendum under the Act may be challenged in legal proceedings. It does this by prohibiting the courts from considering any challenge to a certificate of the number of ballot papers or votes cast (as produced by a Chief Counting Officer or counting officer or person with the equivalent role) unless the challenge is brought by way of judicial review. In addition, the proceedings for such a challenge must be commenced within six weeks of the date of the relevant certificate. A six week period ensures that the process of establishing an elected assembly is not unduly delayed, whilst allowing sufficient time for challenge.