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Today's entry reports on the sudden bringing into force of
the general power of competence for local authorities.
The flag on the flagship of the Localism Act 2011 is the
'general power of competence'. The power, contained in the
very first section of the Act, reverses the presumption that a
council can only do what an Act of Parliament says it can do, to
mean that a council can do anything that is not prohibited by
statute.
The Secretary of State for Communities and Local Government,
Eric Pickles MP, has brought the power into force early, in
response to a court case about prayers at council meetings.
He signed a commencement order on Saturday, as reported in this press release
The commencement order was published in PDF form yesterday and
can be found here.
The case, reported here, was brought by the National Secular
Society and a member of Bideford Town Council in
Devon (pronounced 'biddiford'), who successfully
argued that the holding of prayers at the start of a council
meeting was not lawful because there is no statutory power
permitting it. Apparently the town council is to appeal the
decision.
Ironically, the power will not apply to Bideford Town Council
until it was going to come into force anyway, because a separate
order is needed to apply the power to parish councils (a town
council is a type of parish council). This has also been laid
and can be found here but cannot come into force for 40 days
because of the procedure it is subject to - in the Localism Act.
That will take it beyond 1 April, which is when the
power was originally planned to come into force.
Even when the separate order does come into force there are
three criteria that would have to apply to a parish council before
the general power could apply to it. At least three
quarters of the parish councillors have to be in post (parish
councils can quite often have empty seats), its clerk has to
hold one of a list of four qualifications (which Bideford's
Town Clerk does
have), and have had training as set out by the National Association of
Local Councils (NALC).
So in summary, Saturday's move to allow every local
authority in England to do anything it likes so that Bideford Town
Council can hold prayers is a sledgehammer to crack a nut -
that missed.
Implications
The main effect is that 345 councils in England have woken up
this morning (since they can now do whatever individuals can do) to
find that they have a general power of competence six weeks
early. They can now throw off their statutory shackles and be
creative. Let 345 flowers bloom! Because councils can't
use the general power to avoid existing procedures, the scope for
creativity is greater in areas that councils do not currently
operate in.
The coming into force of the power has implications for
infrastructure projects too. Since the power is phrased so that
local authorities are able to do anything individuals can do,
aside from more creative interpretations of this power (getting
married comes to mind - or would it be a civil partnership?)
it could mean that local authorities do more to help projects they
are in favour of - and hinder those they are opposed to. I
can't immediately think of a concrete example, it must be said,
but it is a new addition to the arsenal of available weapons in
this area.
I wonder whether the general power might affect the concept of
Wednesbury unreasonableness. This is the principle enshrined
in a 1947 court
case concerning the council of Wednesbury in Staffordshire - it
was held that it could not act so unreasonably that no
sensible person would have acted in that way (ironically it
was not itself 'Wednesbury unreasonable' in the case in
question). Presumably individuals do not have to act
sensibly, so does the general power of competence demolish this
concept? Maybe the courts will decide that an individual in
this case is always a reasonable individual. No doubt we
shall find out in due course; it will certainly do some damage
to the concept of 'ultra vires'.
Finally, for completeness, a couple more pieces of secondary
legislation affecting the Localism Act have been published.
The first is a set of consequential amendments (still in draft, like
the parish council order) and the second is a commencement order
affecting Wales that came into force on 31 January.
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