Local authority general power of competence: consultation analysis

Background

Currently, local authorities may only operate and deliver services where statute empowers them to do so. Operating beyond that framework is ultra vires (exceeding their legal scope).

A General Power of Competence is commonly defined as a statutory power to do “anything that individuals may generally do”, providing freedom for local authorities to act without reference to specific enabling legislation and is currently available to local authorities in England, Wales, and Northern Ireland.

Representations were made to the Scottish Government from COSLA and council leaders seeking the introduction of a General Power of Competence for local authorities in Scotland, to align with legislative provisions in England, Wales, and Northern Ireland. The Scottish Government provided a commitment to explore this request in partnership with COSLA.

Why local authorities want a General Power of Competence

The Power to Advance Wellbeing, introduced by section 20 of the Local Government in Scotland Act 2003^[1] is a wide-ranging power designed to allow a local authority to “do anything which it considers is likely to promote or improve the well-being of its area and/or persons within that area”. This was intended to be used as a power of first resort, however, in practice local authorities have sometimes been unwilling to rely on this power due to the lack of clarity as to the scope of the power and potential for narrow interpretation by the courts.

A key element of this consultation was to consider the extent to which existing powers, including the Power to Advance Wellbeing, are sufficient to meet the needs of local services. When local authorities were asked what they are unable to do under existing powers and how a General Power of Competence would be utilised, responses focused largely around:

• Aspirations in terms of charging for goods and services (and current limitations to the legislative powers to trade contained in the Local Authority Goods and Services Act 1970.
• Aspirations to deliver wider public services that do not relate to a statutory function, such as health services where demand exceeds NHS resources and the local authority is well placed to meet the excess demand.
• Aspirations to resolve gaps in services to the public resulting from market failure which adversely impact the local area or residents.
• Aspirations to deliver shared services.
• Aspirations to operate commercially to generate revenue to support local service delivery.
• Aspirations to introduce levies and charges.
• Aspirations to provide loans and mortgages to local enterprise and individuals.

In order to provide further clarity on these matters, a 12-week public consultation was launched from 6^th January to 31^st March 2025 which sought to clearly establish:

1. The perceived barriers, risks and limitations of existing legislative powers.

2. What functions, beyond those already conferred by statute, local authorities in Scotland wish to pursue and whether new legislation or amendments to existing legislation would best deliver those additional functions.

3. The continuing reluctance in England, Wales and Northern Ireland to rely on a General Power of Competence and how best to ensure the effective framing of similar legislative powers in Scotland to provide clarity and confidence to local authorities in the use of such powers.

4. How best to ensure that legislation contains the right balance of flexibility and control to mitigate risks arising from greater financial freedoms.

Respondents were invited to respond either directly to Scottish Government or to upload their response on Citizen Space, where the consultation questionnaire can be viewed. Where permission was provided, responses to the consultation have also been published.