Commentary Part 1: Local Government Chapter 1: General powers of authorities 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.