Localism Bill
Memorandum submitted by Colin Crawford (L 03)
1.
The proposed power is a step forward from the well-being power in that it does not confuse matters by allowing confusion to arise as to the meaning of ‘well-being’.
2.
Equally, the proposed power is a step forward from the well-being power in that it does not confuse matters by allowing confusion to arise as to the beneficiaries or width of benefit to be obtained by the exercise of the power.
3.
It is also welcome that the new power carries across only express restrictions from the normal statute book, as I has always advised and had been adopted in the Scottish legislation.
4.
It is also helpful that the distinction is drawn between pre-existing limitations and subsequent ones.
However, on the negative side
5.
I am not sure why the phrase "general power of competence’ is used rather than the well understood ‘power of general competence’. This may seem to be semantics but in my opinion it could provide support for some judges to adopt a narrower interpretation because ‘the widely accepted formulation was not used so it must have been intended to be different’.
6.
That leads into one main criticism which is that Part 1 Chapter 1 is couched in terms of providing just another power of uncertain width, rather than making it clear that this represent a major change in the way statutory powers of local authorities should be viewed. That is important because as we have seen in the LAML case, the judges ignored the clear intention that the well-being power was to be a move away from the restrictive and problematic interpretations of s.111 of the 1972 Act, and it was held explicitly that these interpretations applied to s.2 of the 2000 Act. What is needed to eliminate this possibility is a clear statement of principle as to how all powers should be interpreted, or that they must be interpreted to support a wide purpose of local government rather be construed as simply technical powers.
7.
Such a statement could of course be made by the Minister in the debates, but as the experience of the well-being power shows, while such statements and indeed adopted guidance can be helpful and assist the court, it is not as helpful as making the aim explicit in the statute itself.
8.
My second main criticism is that the power in clause 5(1), to permit the Secretary of State to remove limitations, is not sufficiently robust. When the 2000 Act was passed, it was envisaged that an application by an authority would be responded to within 21days, with a further 21 days for the necessary SI to be laid if the application was accepted. That would allow authorities to respond promptly to new situations. However, partly as a result of LGA concern, we moved to a situation where there would be delay by wide consultation and only one or two such orders a year. Authorities therefore saw this as a waste of time in terms of removing legal uncertainty and allowing innovative action, given that it could be at least 12 months before the relevant power was amended. No such orders were made and in my experience authorities considered the power amend to be a waste of time.
By formalising this in the Bill, in my opinion the result will be that it will not achieve its intended purpose since authorities will again not seek to use the power. Given that the power may, under clause 5(5) apply to only one authority, and may be time limited, under clause 5(6), I fail to see why there must be consultation so widely before a determination is given. This may be appropriate where there is to be permanent change in the law for all authorities, but the present formulation inhibits experimentation and innovation by individual authorities for a limited period, from which local government more generally could learn.
January 2011
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