2 August 2012
Dr Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law. He is also Communications Officer for the Association of Council Secretaries and Solicitors.
Long ago there was a cartoon popularly called ‘Stop the Pigeon' (but actually titled ‘Dastardly and Muttley in their flying machines'). This featured the ever-failing efforts of fiendish aviator Dick Dastardly and his cynical canine accomplice, Muttley, to catch a secret message-carrying pigeon in flight. The doughty dove would inevitably escape the duo's increasingly surreal flying traps, leaving Dastardly and dog careering crashingly down to earth, to the sardonic accompaniment of Muttley's wheezy chortling.
Reminiscent, you might think, of the epic competence power saga which has been playing since at least the 1969 Redcliffe-Maud report. For this recommended that (as well as existing local authority powers and duties) councils be given a ‘general competence' to do whatever they considered to be in the interests of their area or inhabitants. This was provided the power didn't encroach on the duties of other governmental bodies and would be subject to ‘appropriate safeguards' to protect public and private interests.
However, the competence power pigeon escaped easily at this point, since the fragile aircraft which emerged (section 137 of the 1972 Local Government Act – power of local authorities to incur expenditure for certain purposes not otherwise authorised) was never a match for it. And although the 1983 Labour Party manifesto did promise ‘a power of general competence to all local authorities to carry out whatever activities are not expressly forbidden by statute', this never got off the runway.
True, the wellbeing power in Part 1 of the Local Government Act 2000 did actually make it into the air and flew reasonably well on its few outings. However, it was always painfully short of passengers and fuel since many authorities were nervous wellbeing travellers and, in June 2009, the power got shot down big time by the Court of Appeal as the LAML (London Authorities Mutual) judgment was handed down. And down with LAML went also any remaining council confidence in the power.
This time though the pigeon might just have been stopped! For Part 1 of the Localism Act 2011 now bends over backwards to emphasise the power's breadth and innovation – even outside the UK or (unlike wellbeing) for an authority's own benefit. While the new power is subject to existing and specific future legislative restrictions and established legal principles on the proper use of public power (and should of course be used responsibly in the light of a sound and prudent ‘business case') the power should provide a rocket boost to local authority energy and creativity. For the question now is no longer can we do it but rather how will we do it. It's local government, Jim, but not as we know it.
For further information see my essay for the LGA.
9 August 2012