Localism Bill (HL Bill 100)

Part 1 Local Government

CHAPTER 1 General powers of authorities

1 Local authority’s general power of competence

(1) 5A local authority has power to do anything that individuals generally may do.

(2) Subsection (1) applies to things that an individual may do even though they are
in nature, extent or otherwise—

(a) unlike anything the authority may do apart from subsection (1), or

(b) unlike anything that other public bodies may do.

(3) 10In this section “individual” means an individual with full capacity.

(4) Where subsection (1) confers power on the authority to do something, it
confers power (subject to sections 2 to 4) to do it in any way whatever,
including—

(a) power to do it anywhere in the United Kingdom or elsewhere,

(b) 5power to do it for a commercial purpose or otherwise for a charge, or
without charge, and

(c) power to do it for, or otherwise than for, the benefit of the authority, its
area or persons resident or present in its area.

(5) The generality of the power conferred by subsection (1) (“the general power”)
10is not limited by the existence of any other power of the authority which (to any
extent) overlaps the general power.

(6) Any such other power is not limited by the existence of the general power (but
see section 5(2)).

(7) Schedule 1 (consequential amendments) has effect.

2 15Boundaries of the general power

(1) If exercise of a pre-commencement power of a local authority is subject to
restrictions, those restrictions apply also to exercise of the general power so far
as it is overlapped by the pre-commencement power.

(2) The general power does not enable a local authority to do—

(a) 20anything which the authority is unable to do by virtue of a pre-
commencement limitation, or

(b) anything which the authority is unable to do by virtue of a post-
commencement limitation which is expressed to apply—

(i) to the general power,

(ii) 25to all of the authority’s powers, or

(iii) to all of the authority’s powers but with exceptions that do not
include the general power.

(3) The general power does not confer power to—

(a) make or alter arrangements of a kind which may be made under Part 6
30of the Local Government Act 1972 (arrangements for discharge of
authority’s functions by committees, joint committees, officers etc);

(b) make or alter arrangements of a kind which are made, or may be made,
by or under Part 1A of the Local Government Act 2000 (arrangements
for local authority governance in England);

(c) 35make or alter any contracting-out arrangements, or other arrangements
within neither of paragraphs (a) and (b), that authorise a person to
exercise a function of a local authority.

(4) In this section—

• “post-commencement limitation” means a prohibition, restriction or other
  40limitation expressly imposed by a statutory provision that—

  (a)

  is contained in an Act passed after the end of the Session in
  which this Act is passed, or

  (b)

  is contained in an instrument made under an Act and comes
  into force on or after the commencement of section 1;

• 45“pre-commencement limitation” means a prohibition, restriction or other
  limitation expressly imposed by a statutory provision that—

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  (a)

  is contained in this Act, or in any other Act passed no later than
  the end of the Session in which this Act is passed, or

  (b)

  is contained in an instrument made under an Act and comes
  into force before the commencement of section 1;

• 5“pre-commencement power” means power conferred by a statutory
  provision that—

  (a)

  is contained in this Act, or in any other Act passed no later than
  the end of the Session in which this Act is passed, or

  (b)

  is contained in an instrument made under an Act and comes
  10into force before the commencement of section 1.

3 Limits on charging in exercise of general power

(1) Subsection (2) applies where—

(a) a local authority provides a service to a person otherwise than for a
commercial purpose, and

(b) 15its providing the service to the person is done, or could be done, in
exercise of the general power.

(2) The general power confers power to charge the person for providing the
service to the person only if—

(a) the service is not one that a statutory provision requires the authority
20to provide to the person,

(b) the person has agreed to its being provided, and

(c) ignoring this section and section 93 of the Local Government Act 2003,
the authority does not have power to charge for providing the service.

(3) The general power is subject to a duty to secure that, taking one financial year
25with another, the income from charges allowed by subsection (2) does not
exceed the costs of provision.

(4) The duty under subsection (3) applies separately in relation to each kind of
service.

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

(1) 30The general power confers power on a local authority to do things for a
commercial purpose only if they are things which the authority may, in
exercise of the general power, do otherwise than for a commercial purpose.

(2) Where, in exercise of the general power, a local authority does things for a
commercial purpose, the authority must do them through a company.

(3) 35A local authority may not, in exercise of the general power, do things for a
commercial purpose in relation to a person if a statutory provision requires the
authority to do those things in relation to the person.

(4) In this section “company” means—

(a) a company within the meaning given by section 1(1) of the Companies
40Act 2006, or

(b) a society registered or deemed to be registered under the Co-operative
and Community Benefit Societies and Credit Unions Act 1965 or the
Industrial and Provident Societies Act (Northern Ireland) 1969.

5 Powers to make supplemental provision

(1) If the Secretary of State thinks that a statutory provision (whenever passed or
made) prevents or restricts local authorities from exercising the general power,
the Secretary of State may by order amend, repeal, revoke or disapply that
5provision.

(2) If the Secretary of State thinks that the general power is overlapped (to any
extent) by another power then, for the purpose of removing or reducing that
overlap, the Secretary of State may by order amend, repeal, revoke or disapply
any statutory provision (whenever passed or made).

(3) 10The Secretary of State may by order make provision preventing local
authorities from doing, in exercise of the general power, anything which is
specified, or is of a description specified, in the order.

(4) The Secretary of State may by order provide for the exercise of the general
power by local authorities to be subject to conditions, whether generally or in
15relation to doing anything specified, or of a description specified, in the order.

(5) The power under subsection (1), (2), (3) or (4) may be exercised in relation to—

(a) all local authorities,

(b) particular local authorities, or

(c) particular descriptions of local authority.

(6) 20The power under subsection (1) or (2) to amend or disapply a statutory
provision includes power to amend or disapply a statutory provision for a
particular period.

(7) Before making an order under subsection (1), (2), (3) or (4) the Secretary of State
must consult—

(a) 25such local authorities,

(b) such representatives of local government, and

(c) such other persons (if any),

as the Secretary of State considers appropriate.

(8) Before making an order under subsection (1) that has effect in relation to Wales,
30the Secretary of State must consult the Welsh Ministers.

6 Limits on power under section 5(1)

(1) The Secretary of State may not make provision under section 5(1) unless the
Secretary of State considers that the conditions in subsection (2), where
relevant, are satisfied in relation to that provision.

(2) 35Those conditions are that—

(a) the effect of the provision is proportionate to the policy objective
intended to be secured by the provision;

(b) the provision, taken as a whole, strikes a fair balance between the
public interest and the interests of any person adversely affected by it;

(c) 40the provision does not remove any necessary protection;

(d) the provision does not prevent any person from continuing to exercise
any right or freedom which that person might reasonably expect to
continue to exercise;

(e) the provision is not of constitutional significance.

(3) An order under section 5(1) may not make provision for the delegation or
transfer of any function of legislating.

(4) For the purposes of subsection (3) a “function of legislating” is a function of
legislating by order, rules, regulations or other subordinate instrument.

(5) 5An order under section 5(1) may not make provision to abolish or vary any tax.

7 Procedure for orders under section 5

(1) If, as a result of any consultation required by section 5(7) and (8) with respect
to a proposed order under section 5(1), it appears to the Secretary of State that
it is appropriate to change the whole or any part of the Secretary of State’s
10proposals, the Secretary of State must undertake such further consultation with
respect to the changes as the Secretary of State considers appropriate.

(2) If, after the conclusion of the consultation required by section 5(7) and (8) and
subsection (1), the Secretary of State considers it appropriate to proceed with
the making of an order under section 5(1), the Secretary of State must lay before
15Parliament—

(a) a draft of the order, and

(b) an explanatory document explaining the proposals and giving details
of—

(i) the Secretary of State’s reasons for considering that the
20conditions in section 6(2), where relevant, are satisfied in
relation to the proposals,

(ii) any consultation undertaken under section 5(7) and (8) and
subsection (1),

(iii) any representations received as a result of the consultation, and

(iv) 25the changes (if any) made as a result of those representations.

(3) Sections 15 to 19 of the Legislative and Regulatory Reform Act 2006 (choosing
between negative, affirmative and super-affirmative parliamentary procedure)
are to apply in relation to an explanatory document and draft order laid under
subsection (2) but as if—

(a) 30section 18(11) of that Act were omitted,

(b) references to section 14 of that Act were references to subsection (2),
and

(c) references to the Minister were references to the Secretary of State.

(4) Provision under section 5(2) may be included in a draft order laid under
35subsection (2) and, if it is, the explanatory document laid with the draft order
must also explain the proposals under section 5(2) and give details of any
consultation undertaken under section 5(7) with respect to those proposals.

(5) Section 5(7) does not apply to an order under section 5(3) or (4) which is made
only for the purpose of amending an earlier such order—

(a) 40so as to extend the earlier order, or any provision of the earlier order, to
a particular authority or to authorities of a particular description, or

(b) so that the earlier order, or any provision of the earlier order, ceases to
apply to a particular authority or to authorities of a particular
description.

8 Interpretation of Chapter

(1) In this Chapter—

• “the general power” means the power conferred by section 1(1);

• “local authority” means—

  (a)

  5a county council in England,

  (b)

  a district council,

  (c)

  a London borough council,

  (d)

  the Common Council of the City of London in its capacity as a
  local authority,

  (e)

  10the Council of the Isles of Scilly, or

  (f)

  an eligible parish council;

• “statutory provision” means a provision of an Act or of an instrument
  made under an Act.

(2) A parish council is “eligible” for the purposes of this Chapter if the council
15meets the conditions prescribed by the Secretary of State by order for the
purposes of this section.

CHAPTER 2 Fire and rescue authorities

9 General powers of certain fire and rescue authorities

(1) In Part 1 of the Fire and Rescue Services Act 2004 (fire and rescue authorities)
20after section 5 insert—

“5A Powers of certain fire and rescue authorities

(1) A relevant fire and rescue authority may do—

(a) anything it considers appropriate for the purposes of the
carrying-out of any of its functions (its “functional purposes”),

(b) 25anything it considers appropriate for purposes incidental to its
functional purposes,

(c) anything it considers appropriate for purposes indirectly
incidental to its functional purposes through any number of
removes,

(d) 30anything it considers to be connected with—

(i) any of its functions, or

(ii) anything it may do under paragraph (a), (b) or (c), and

(e) for a commercial purpose anything which it may do under any
of paragraphs (a) to (d) otherwise than for a commercial
35purpose.

(2) A relevant fire and rescue authority’s power under subsection (1) is in
addition to, and is not limited by, the other powers of the authority.

(3) In this section “relevant fire and rescue authority” means a fire and
rescue authority that is—

(a) 40a metropolitan county fire and rescue authority,

(b) the London Fire and Emergency Planning Authority,

(c) constituted by a scheme under section 2, or

(d) constituted by a scheme to which section 4 applies.

5B Boundaries of power under section 5A

(1) Section 5A(1) does not enable a relevant fire and rescue authority to
do—

(a) 5anything which the authority is unable to do by virtue of a pre-
commencement limitation, or

(b) anything which the authority is unable to do by virtue of a post-
commencement limitation which is expressed to apply—

(i) to its power under section 5A(1),

(ii) 10to all of the authority’s powers, or

(iii) to all of the authority’s powers but with exceptions that
do not include its power under section 5A(1).

(2) If exercise of a pre-commencement power of a relevant fire and rescue
authority is subject to restrictions, those restrictions apply also to
15exercise of the power conferred on the authority by section 5A(1) so far
as it is overlapped by the pre-commencement power.

(3) Where under section 5A(1) a relevant fire and rescue authority does
things for a commercial purpose, it must do them through—

(a) a company within the meaning given by section 1(1) of the
20Companies Act 2006, or

(b) a society registered or deemed to be registered under the Co-
operative and Community Benefit Societies and Credit Unions
Act 1965 or the Industrial and Provident Societies Act (Northern
Ireland) 1969.

(4) 25Section 5A(1) does not authorise a relevant fire and rescue authority to
do things for a commercial purpose in relation to a person if a statutory
provision requires the authority to do those things in relation to the
person.

(5) Section 5A(1) does not authorise a relevant fire and rescue authority to
30borrow money.

(6) Section 5A(1)(a) to (d) do not authorise a relevant fire and rescue
authority to charge a person for any action taken by the authority (but
see section 18A).

(7) Section 18B(1) to (8) apply in relation to charging for things done for a
35commercial purpose in exercise of power conferred by section 5A(1)(e)
as they apply in relation to charging under section 18A(1).

(8) In this section—

• “Act” (except in a reference to the Localism Act 2011) includes an
  Act, or Measure, of the National Assembly for Wales;

• 40“passed” in relation to an Act, or Measure, of the National
  Assembly for Wales means enacted;

• “post-commencement limitation” means a prohibition, restriction
  or other limitation imposed by a statutory provision that—

  (a)

  is contained in an Act passed after the end of the Session
  45in which the Localism Act 2011 is passed, or

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  (b)

  is contained in an instrument made under an Act and
  comes into force on or after the commencement of
  section 9(1) of that Act;

• “pre-commencement limitation” means a prohibition, restriction
  5or other limitation imposed by a statutory provision that—

  (a)

  is contained in an Act passed no later than the end of the
  Session in which the Localism Act 2011 is passed, or

  (b)

  is contained in an instrument made under an Act and
  comes into force before the commencement of section
  109(1) of that Act;

• “pre-commencement power” means power conferred by a
  statutory provision that—

  (a)

  is contained in an Act passed no later than the end of the
  Session in which the Localism Act 2011 is passed, or

  (b)

  15is contained in an instrument made under an Act and
  comes into force before the commencement of section
  9(1) of that Act;

• “relevant fire and rescue authority” has meaning given by section
  5A(3);

• 20“statutory provision” means a provision of an Act or of an
  instrument made under an Act.

5C Power to make provision supplemental to section 5A

(1) If the appropriate national authority thinks that a statutory provision
(whenever passed or made) prevents or restricts relevant fire and
25rescue authorities from exercising power conferred by section 5A(1),
the appropriate national authority may by order amend, repeal, revoke
or disapply that provision.

(2) If the appropriate national authority thinks that the power conferred by
section 5A(1) is overlapped (to any extent) by another power then, for
30the purpose of removing or reducing that overlap, the appropriate
national authority may by order amend, repeal, revoke or disapply any
statutory provision (whenever passed or made).

(3) The appropriate national authority may by order make provision
preventing relevant fire and rescue authorities from doing under
35section 5A(1) anything which is specified, or is of a description
specified, in the order.

(4) The appropriate national authority may by order provide for the
exercise by relevant fire and rescue authorities of power conferred by
section 5A(1) to be subject to conditions, whether generally or in
40relation to doing anything specified, or of a description specified, in the
order.

(5) The power under subsection (1), (2), (3) or (4) may be exercised in
relation to—

(a) all relevant fire and rescue authorities,

(b) 45particular relevant fire and rescue authorities, or

(c) particular descriptions of relevant fire and rescue authorities.

(6) Before making an order under subsection (1), (2), (3) or (4) the
appropriate national authority proposing to make the order must
consult—

(a) such relevant fire and rescue authorities,

(b) such representatives of relevant fire and rescue authorities, and

(c) such other persons (if any),

as that appropriate national authority considers appropriate.

(7) 5Subsection (6) does not apply to an order under subsection (3) or (4)
which is made only for the purpose of amending an earlier such
order—

(a) so as to extend the earlier order, or any provision of the earlier
order, to a particular authority or to authorities of a particular
10description, or

(b) so that the earlier order, or any provision of the earlier order,
ceases to apply to a particular authority or to authorities of a
particular description.

(8) The appropriate national authority’s power under subsection (1) or (2)
15is exercisable by the Welsh Ministers so far as it is power to make
provision that—

(a) would be within the legislative competence of the National
Assembly for Wales if it were contained in an Act of the
Assembly, and

(b) 20does not relate to a fire and rescue authority for an area in
England.

(9) The appropriate national authority’s power under subsection (1) or (2)
is exercisable by the Secretary of State so far as it is not exercisable by
the Welsh Ministers.

(10) 25The appropriate national authority’s power under subsection (3) or (4)
is exercisable—

(a) in relation to England by the Secretary of State, and

(b) in relation to Wales by the Welsh Ministers.

(11) In exercising power under subsection (1) or (2), the Secretary of State
30may make provision which has effect in relation to Wales only after
having consulted the Welsh Ministers.

(12) The Welsh Ministers may submit to the Secretary of State proposals
that power of the Secretary of State under subsection (1) or (2) in
relation to Wales should be exercised in accordance with the proposals.

(13) 35In subsections (1) and (2) “statutory provision” means a provision of—

(a) an Act, or

(b) an instrument made under an Act,

and in this subsection “Act” includes an Act, or Measure, of the
National Assembly for Wales.

(14) 40In this section “relevant fire and rescue authority” has the meaning
given by section 5A(3).

5D Limits on power under section 5C(1)

(1) Provision may not be made under section 5C(1) unless the appropriate
national authority making the provision considers that the conditions
45in subsection (2), where relevant, are satisfied in relation to that
provision.