Localism Bill

Session 2010 - 11
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Other Bills before Parliament

Localism Bill

Localism Bill
Part 1 — Local Government
Chapter 1 — General powers of authorities
1

A
Bill
[AS AMENDED IN PUBLIC BILL COMMITTEE]
To
Make provision about the functions and procedures of local and certain other
authorities; to make provision about the functions of the Local Commission
for Administration in England; to enable the recovery of financial sanctions
imposed by the Court of Justice of the European Union on the United
Kingdom from local and public authorities; to make provision about local
government finance; to make provision about town and country planning, the
Community Infrastructure Levy and the authorisation of nationally significant
infrastructure projects; to make provision about social and other housing; to
make provision about regeneration in London; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Local Government
Chapter 1
General powers of authorities
1
Local authority’s general power of competence
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(1)
A 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.
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(3)
In this section “individual” means an individual with full capacity.

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Localism Bill
Part 1 — Local Government
Chapter 1 — General powers of authorities
2

(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)
power to do it for a commercial purpose or otherwise for a charge, or
5
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”)
is not limited by the existence of any other power of the authority which (to any
10
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
Boundaries of the general power
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(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)
anything which the authority is unable to do by virtue of a pre-
20
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)
to all of the authority’s powers, or
25
(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
of the Local Government Act 1972 (arrangements for discharge of
30
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)
make or alter any contracting-out arrangements, or other arrangements
35
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
limitation expressly imposed by a statutory provision that—
40
(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;
“pre-commencement limitation” means a prohibition, restriction or other
45
limitation expressly imposed by a statutory provision that—

Localism Bill
Part 1 — Local Government
Chapter 1 — General powers of authorities
3

(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;
“pre-commencement power” means power conferred by a statutory
5
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
into force before the commencement of section 1.
10
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)
its providing the service to the person is done, or could be done, in
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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
to provide to the person,
20
(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
with another, the income from charges allowed by subsection (2) does not
25
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)
The general power confers power on a local authority to do things for a
30
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)
A local authority may not, in exercise of the general power, do things for a
35
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
Act 2006, or
40
(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.

Localism Bill
Part 1 — Local Government
Chapter 1 — General powers of authorities
4

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
provision.
5
(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)
The Secretary of State may by order make provision preventing local
10
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
relation to doing anything specified, or of a description specified, in the order.
15
(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)
The power under subsection (1) or (2) to amend or disapply a statutory
20
provision includes power to amend or disapply a statutory provision for a
particular period.
(7)
Before making an order under section (1), (2), (3) or (4) the Secretary of State
must (whether before or after the passing of this Act) consult—
(a)
such local authorities,
25
(b)
such representatives of local government, and
(c)
such other persons (if any),

as the Secretary of State considers appropriate.
6
Procedure for orders under section 5
(1)
If, as a result of any consultation required by section 5(7) with respect to a
30
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
proposals, the Secretary of State must (whether before or after the passing of
this Act) undertake such further consultation with respect to the changes as the
Secretary of State considers appropriate.
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(2)
If, after the conclusion of the consultation required by section 5(7) 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
Parliament—
(a)
a draft of the order, and
40
(b)
an explanatory document explaining the proposals and giving details
of—
(i)
any consultation undertaken under section 5(7) and subsection
(1),
(ii)
any representations received as a result of the consultation, and
45
(iii)
the changes (if any) made as a result of those representations.

Localism Bill
Part 1 — Local Government
Chapter 2 — Fire and rescue authorities
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(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)
section 18(11) of that Act were omitted,
5
(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
subsection (2) and, if it is, the explanatory document laid with the draft order
10
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)
so as to extend the earlier order, or any provision of the earlier order, to
15
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.
7
Interpretation of Chapter
20
(1)
In this Chapter—
“the general power” means the power conferred by section 1(1);
“local authority” means—
(a)
a county council in England,
(b)
a district council,
25
(c)
a London borough council,
(d)
the Common Council of the City of London in its capacity as a
local authority,
(e)
the Council of the Isles of Scilly, or
(f)
an eligible parish council;
30
“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
meets the conditions prescribed by the Secretary of State by order for the
purposes of this section.
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Chapter 2
Fire and rescue authorities
8
General powers of certain fire and rescue authorities
(1)
In Part 1 of the Fire and Rescue Services Act 2004 (fire and rescue authorities)
after section 5 insert—
40
“5A
Powers of certain fire and rescue authorities in England
(1)
A relevant fire and rescue authority may do—

Localism Bill
Part 1 — Local Government
Chapter 2 — Fire and rescue authorities
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(a)
anything it considers appropriate for the purposes of the
carrying-out of any of its functions (its “functional purposes”),
(b)
anything it considers appropriate for purposes incidental to its
functional purposes,
(c)
anything it considers appropriate for purposes indirectly
5
incidental to its functional purposes through any number of
removes,
(d)
anything it considers to be connected with—
(i)
any of its functions, or
(ii)
anything it may do under paragraph (a), (b) or (c), and
10
(e)
for a commercial purpose anything which it may do under any
of paragraphs (a) to (d) otherwise than for a commercial
purpose.
(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.
15
(3)
In this section “relevant fire and rescue authority” means a fire and
rescue authority in England that is—
(a)
a metropolitan county fire and rescue authority,
(b)
the London Fire and Emergency Planning Authority,
(c)
constituted by a scheme under section 2, or
20
(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)
anything which the authority is unable to do by virtue of a pre-
25
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)
to all of the authority’s powers, or
30
(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
exercise of the power conferred on the authority by section 5A(1) so far
35
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
Companies Act 2006, or
40
(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)
Section 5A(1) does not authorise a relevant fire and rescue authority to
45
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.

Localism Bill
Part 1 — Local Government
Chapter 2 — Fire and rescue authorities
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(5)
Section 5A(1) does not authorise a relevant fire and rescue authority to
borrow 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).
5
(7)
Section 18B(1) to (6) apply in relation to charging for things done for a
commercial 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—
“post-commencement limitation” means a prohibition, restriction
10
or other limitation imposed by a statutory provision that—
(a)
is contained in an Act passed after 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 on or after the commencement of
15
section 8(1) of that Act;
“pre-commencement limitation” means a prohibition, restriction
or 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
20
(b)
is contained in an instrument made under an Act and
comes into force before the commencement of section
8(1) of that Act;
“pre-commencement power” means power conferred by a
statutory provision that—
25
(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
8(1) of that Act;
30
“relevant fire and rescue authority” has meaning given by section
5A(3);
“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
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(1)
If the Secretary of State thinks that a statutory provision (whenever
passed or made) prevents or restricts relevant fire and rescue
authorities from exercising power conferred by section 5A(1), the
Secretary of State may by order amend, repeal, revoke or disapply that
provision.
40
(2)
If the Secretary of State thinks that the power conferred by section 5A(1)
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).
45
(3)
The Secretary of State may by order make provision preventing
relevant fire and rescue authorities from doing under section 5A(1)
anything which is specified, or is of a description specified, in the order.