The main piece of research on use of the wellbeing power was commissioned
by CLG and undertaken by INLOGOV at the University of Birmingham
and is at http://www.inlogov.bham.ac.uk/seminars/policy_practice/pdfs/well_being_power.pdf
The study explored awareness and use
of the power, through a variety of means. It acknowledges the
issue of 'under-recorded' use of the power, acknowledging that
in some authorities studied, the approach was 'we assume now
we can do things. We just get on with it'. I would
suggest as a practitioner (and former local government Monitoring
Officer) that such an approach (up until the LAML case) was much
more widespread than this and other research studies on use of
the power has shown. This is for several reasons:
· formal use of the power, to meet
the construction of the Act, requires a local authority to exhaust
all other possibilities of vires, and to then take a view on the
balance of economic, social, and environmental benefits to be
gained from the proposed action. This is a resource-intensive
and elaborate process.
· the idea that individual councils
retain the legal capacity to analyse every one of their decisions,
identify which legal powers provide vires and hence where the
wellbeing power is needed, no longer reflects reality (if it ever
did).
· for most councils, there may
once have been a time when administrative good practice meant
that every committee report and decision involved input from the
legal department, citing the relevant legislation. Those days
have long gone in many councils. Achieving such rigour requires
plentiful specialist legal advice on hand, with an encyclopedic
grasp of ever-changing legislation.
· Where clearly innovative activities
are involved, lawyers may become involved or alternatively, risks
taken. Where new activities make obvious good sense, and risks
of challenge are low, issues of vires may never be flagged up
or explored. Many local authorities ventured into economic development
and community safety activity in the 1970s and 1980s long before
the relevant legislation was on the statute book.
· the wellbeing power was launched
by Government as a 'power of first resort'. This naturally encouraged
councils to treat is as a 'comfort blanket', reducing the need
to analyse the legal basis for decisions or to identify precise
vires.
· When involved, local government
lawyers were more cautious, and pointed to the significant restrictions
that the wellbeing power retained. The LAML judgment has now
had a widespread impact in confirming this cautious view.
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