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Nicholas Dobson presentation - LGiU general power of competence seminar
 

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    Nicholas Dobson presentation - LGiU general power of competence seminar Nicholas Dobson presentation - LGiU general power of competence seminar Presentation Transcript

    • www.pannone.com LGIU Localism Series The General Power of Competence Nicholas Dobson 6 October 2011
    • The Basics
      • Ultra Vires rule: local authorities statutory creatures and can do nothing save expressly or impliedly authorised by statute;
      • However, LA legal powers now plentiful and in particular well-being in Part 1 LGA 2000 which (despite the confidence knock from LAML) remains a broad and useful power pending ‘Competence’ (see below )
      • ‘ Competence’ though will not abolish ultra vires
    • Important but subliminal public law underlay. . .
      • Local authority must use its primary powers:
        • reasonably;
        • fairly;
        • in compliance with the relevant statutory purpose
        • consistently with its fiduciary duty.
      • A local authority must also:
        • comply with any statutory or other procedural requirements
        • act compatibly with rights under the European Convention of Human Rights as detailed in the Human Rights Act 1998.
        • Meet its Equalities duties.
      • An authority may delegate the discharge of their functions only so far as authorised by statute
    • Human Rights: Absolute and Qualified Convention Rights
      • Some Convention rights are absolute (e.g. Article 3 (prohibition of torture and inhuman or degrading treatment) and Article 4(1) 'No one shall be held in slavery or servitude');
      • Others are subject to specified exceptions or qualifications (e.g. Article 4(2) and (3) (prohibition of forced or compulsory labour) and Article 5(1) (right to liberty and security).
      • Qualified rights include Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression). In addition to other qualifications these all include the need for any departure to be in accordance with or prescribed by the law and to be ‘necessary in a democratic society’.
    • Article 8 - Respect for Private and family life – Qualified right
      • Article 8(1) provides that everyone has the right to respect for his private and family life, his home and his correspondence;
      • Per Article 8(2)) there shall be no interference by a public authority with the exercise of this right:
        • ‘ . . . except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.
    • Proportionality
      • Proportionality refers to the principle imported from European Convention on Human Rights jurisprudence
      • This is essentially that: restrictions on individual Convention rights are proportionate to the legitimate public aim pursued and that the reasons advanced for the proportionality of the restriction are ‘relevant and sufficient’.
      • In considering matters whereby the qualified Convention rights of individuals may be affected, a fair balance must be struck between the competing interests of the individual and of the community as a whole.
    • Public authority duty Section 6 HRA 1998
      • Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act incompatibly with a convention right.
      • By section 6(3)(b), a ‘public authority’ includes ‘any person certain of whose functions are functions of a public nature’.
      • However, per section 6(5), ‘in relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’.
    • Equalities increasingly important and pervasive
    • Public Sector Equality Duty – Section 149(1) Equality Act 2010
      • (1)     A public authority must, in the exercise of its functions, have due regard to the need to—
      • (a)     eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
      • (b)     advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
      • (c)     foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
      • N.B. Duty to be exercised in substance before and at the time of the decision
    • Protected Characteristics
      • Age
      • Disability
      • Gender reassignment
      • Pregnancy and maternity
      • Race (including ethnic or national origins, colour or nationality)
      • Religion or belief (including lack of belief),
      • Sex and sexual orientation.
    • General power of competence Clause 1 Localism Bill
      • Authority to have power to do anything in any way whatever that individuals of full capacity generally may do;
      • Power includes things unlike anything ‘in nature, extent or otherwise’ that local authorities or other public bodies may do;
      • Also includes power to do things ‘anywhere in the United Kingdom or elsewhere’ ;
      • Generality of power not limited by existence of any other overlapping power.
    • Boundaries of competence Clauses 2 - 5
      • Existing statutory restrictions will apply;
      • But those coming into force after the Localism Act (post-commencement limitations) will limit the competence power only if expressed accordingly;
      • Clause 2(3) sets other functional boundaries and clause 2(4) defines both pre-commencement and post-commencement limitations.
      • Powers to charge for discretionary services (clause 3) and to trade through a company (clause 4) in line generally with the provisions in sections 93 and 95 of the Local Government Act 2003.
      • various powers reserved to the Secretary of State in clause 5 include power: to remove any existing statutory restrictions which impede the exercise of the competence power; to prevent authorities from doing specified things and to impose general or specific conditions on the application of the competence power.
    • Clause 5(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.
      • Government amendments introduced on 10 May 2011 imposing conditions on Secretary of State’s exercise of this power.
    • Conditions governing SoS Clause 5(1) powers
      • The effect of the provision is proportionate to the policy objective intended to be secured by the provision;
      • The provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it;
      • The provision does not remove any necessary protection;
      • 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;
      • The provision is not of constitutional significance.
      • No abolition or variation of any tax
    • Some points from 21 March 2011 letter from Eric Pickles to Chair of CLG Committee
      • Important that Competence power should not only increase LA powers but also the confidence of LA officers and members in scope of powers;
      • Company vehicle for trading so LAs will not be able to use their public status to gain commercial advantage of private sector;
      • Pre-authorisation not appropriate: policy to reduce LG dependence on central government and give authorities the confidence to act;
      • Clause 5 not intended to be used lightly – will require full consultation and Parliamentary scrutiny before approval;
      • Separate from constitutional review of local government – Constitutional Reform Select Committee currently considering potential codification of the relationship between central and LG.
      • No ‘one size fits all’ competence power for all public bodies. Horses for courses and partly cultural.
    • Extent of Competence Power
      • The competence power applies only to English local authorities;
      • The well-being power will therefore be restricted to authorities in Wales when competence goes live;
      • The Welsh Assembly Government will no doubt be considering whether to continue with well-being or whether to make similar provision to the competence power.
    • Fire and Rescue Authorities Chapter 2 of Part 1
      • Analogous powers for fire and rescue not included within the competence power (metropolitan county fire and rescue authorities, the London Fire and Emergency Planning Authority and combined authorities under sections 2 and 4 of the Fire and Rescue Services Act 2004).
      • There are also in clause 9 detailed provisions for charging by English fire and rescue authorities (by inserting into the 2004 Act new sections 18A, 18B and 18C).
      • LG Minister Bob Neill has indicated that the charging provisions will not apply to domestic premises.
    • How Radical?
    • CLG Committee Report
      • Cllr Stephen Houghton, Leader of Barnsley Council, expressed some scepticism about the extent to which the general power of competence would represent a significant expansion of local authorities' horizons :
      • From our perspective, we need to see what the detail of that means. At the moment we have got the power of economic, social and environmental wellbeing. If it does not take it much further than that, there is probably little added value, so the devil is in the detail. [...] I have never particularly had a huge problem with powers. Very often it has been a lack of resources with which we have struggled to get things done. But with environmental wellbeing or the new powers that may be coming, in the end we still need a good lawyer to interpret that for us and see how far we are able to do it. [...] Does the general power of competence that may come out mean we can do what we want with education, adult social care or other services? Clearly, the answer to that is no because Government has its own agenda for that.
    • CLG Committee Report
      • ‘ . . .local authorities will have a new general power of competence and new responsibilities for public health. The Government must decide what it wants the role of local authorities to be and how it should develop, what powers they will have and how they will exercise them in relation to other bodies. We recommend that each department set out how it will devolve further powers to local government, and we look forward to seeing clear evidence of this in the Minister for Decentralisation's progress report.
      • We recommend that the Government work with the Local Government Association to set out examples of specific ways in which the general power of competence will enable local authorities to extend their role beyond that conferred by the well-being powers. In particular, it is unclear what activities currently carried out by central government might be taken over by local authorities using the new power.
      • We recommend also that the Government undertake an assessment of the extent to which exercise of the general power of competence will be restricted by existing regulation and statute. If there is in practice little room for local government to expand into, the power is likely to have very minimal impact.’
    • CLG Response on Competence Power
      • The general power of competence will turn the current situation on its head. Rather than looking to Whitehall to hand down specific powers, the new power is drafted on the basis that local authorities will be able to do anything that an individual with full capacity (a ‘natural person’) might do, whereas the well-being power was a power to do specified things.
      • it is not for Government to make specific suggestions as to how the power might be used – how councils choose to use the power is up to them.
      • The impact of the general power does not just depend on local government finding space to expand into. It is more about looking at different ways of taking action, without – as at present – needing a specific power to do so.
    • Some strands from CLG report and Government response
      • Major criticism by CLG Committee is lack of strategic cohesion and cogent vision for local government;
      • Tension between localism where it suits central government and interventionist approach where it doesn’t;
      • Cultural tendency for civil service to hold their ‘turf’ by keeping things centralised;
      • Lukewarm or non-existent commitment by (or ignorance on the part of) Government Departments on community budgeting;
      • Open Public Services White Paper sets out clear framework in which services are to be opened up
      • White Paper acknowledges central intervention needs careful design to avoid returning to the default of top-down prescription.
      • The Government agrees that the civil service will need to adapt to the new, decentralised landscape.
      • All Whitehall is on board and taking practical steps to explore a very radical approach to Community Budgets.
    • Some strands from CLG report and Government response
      • Conundrum – raising expectation of local choice in age of public sector financial austerity;
      • CLG Committee: ‘The litmus test of localism will be the government’s reaction to local decisions with which it disagrees’;
      • Baroness Eaton: ‘The Committee is spot on to remind ministers they cannot have it both ways, devolving powers but telling councils how to use them’.
      • Government has already transferred substantial power to local government and is taking further steps to transfer more power.
      • Reforms will leave local government freer from central control than in the past and more able to focus on the needs and priorities of the local communities to whom they are accountable.
      • Whilst local government will be freer of central control, this does not mean that Ministers, as nationally elected politicians, should be denied the right to express their opinion on matters which affect public life, including decisions made by local authorities - sign of a healthy democracy, in which all participants – including local government – have a voice.
    • Will Competence power really add anything?
      • Makes explicit will of Parliament that local government vires should be widely interpreted;
      • Therefore, leaves less room for restrictive judicial interpretation;
      • Also with the ‘confidence’ problem that seemed to hamstring creative use of the well-being power.
    • Administrative Law
      • Clearly whilst the competence power will be subject to the usual administrative law constraints (including the need to exercise statutory discretion reasonably, fairly, with due regard to the fiduciary duty and in compliance with any applicable Convention rights) it is clearly intended to be broad and is framed accordingly.
      • Whilst administrative law will prevent foolhardy use of public monies, the proposed new power does seem well-positioned to give authorities the confidence to be innovative.
      • But it is unlikely to change the local government world!
    • Questions posed for the Conference
      • How does the General Power of Competence differ from the Power of Wellbeing?
      • How can it promote innovation at a local level?
      • How does it affect the role of leadership within a council?
      • What are the implications for local partnership working?
      • What forms of commercial activity will be opened up by the new powers?
    • How does the General Power of Competence differ from the Power of Wellbeing?
      • Positive expression of the will of Parliament that (subject to relevant statutory restrictions) a local authority has power to do anything that individuals generally may do and is intended to be broad;
      • No need to show connection between relevant element of well-being;
      • No need to have regard to the authority’s sustainable community strategy;
      • Free from confidence spectres raised by the LAML case.
    • How can the competence power promote innovation at a local level? How does the competence power affect the role of leadership within a council?
      • Subject to public law considerations, the power should give authorities and their members and officers the confidence to unleash and try out creative ideas tailored to authority needs;
      • It should also facilitate joint working with other public bodies.
      • But the power does not enable changes in governance (see proposed new Part 1A of the LGA 2000) or arrangements for discharge of functions (per Part 6 of LGA 1972).
    • What are the implications of the competence power for local partnership working?
      • Gives local authorities a lot more flexibility in the way they approach and structure partnerships and partnership relationships;
      • Subject of course to public law and corporate governance considerations (see my article Governance and LEPs – Meaning Business on the Local Government Lawyer website (www.localgovernmentlawyer.co.uk).
    • What forms of commercial activity will be opened up by the new powers?
      • Similar to LGA 2003, Clause 4 of Localism Bill enables authorities through a company to carry out discretionary activities for a commercial purpose;
      • Clause 4 presumably not in itself subject to the requirements of the Local Government (Best Value Authorities) (Power to Trade) (England) Order 2009 (S.I. 2009 No. 2393) which requires the authority to prepare and approve a business case, i.e. a comprehensive statement as to:
        • The business objectives;
        • Requisite investment and other resources;
        • The business risks and how significant they are;
        • Expected financial results and other outcomes.
      • However, prudential governance would probably require an authority to do so in any event.
    • Summary
      • True, authorities will still need to act within public law and other limitations (e.g. equalities and human rights);
      • Less scope for powers challenge – positive expression of the will of Parliament;
      • Not magic, but competence power an important new measure that should deliver increased confidence, enable innovation and unlock creativity.
      • Make it clear where appropriate in decisions that the competence power is the relevant power relied on;
      • It is what you and yours will make of it!
    • Questions Questions?
    • www.pannone.com EXCELLENCE AND ENERGY IN ALL THAT WE DO [email_address]