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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