Local authority general power of competence: consultation analysis

Annex B: Consultation questions

Theme 1: Current legislative barriers/ limitations

Four questions were asked in this section to understand the perceived barriers and risks to using existing statutory powers and the limitations of those powers.

Question 1

• What are the perceived barriers and risks to fully exploring the scope of the ‘Power to Advance Wellbeing’ contained in section 20 of the Local Government in Scotland Act 2003? - Please provide examples.

Question 2

• What are the limitations of the Power to Advance Wellbeing and how do these limitations restrict the aspirations of local authorities, for example, to explore new and innovative ways of delivering public services? - Please provide examples.

Question 4

• Are there any further existing legislative barriers to the delivery of public services and to a broader range of activity that local authorities would wish to undertake? - Please provide examples.

Question 7

• Does the provision within the 2003 Act, which states that the Power to Advance Wellbeing cannot be used to unreasonably duplicate the functions of another person, restrict a local authority’s pursuit of service transformation, other income generating activity or any other activity? - Please provide examples.

Theme 2: Amendments to existing legislative powers

Five questions were asked in this section, proposing legislative amendments to provide certainty to local authorities and therefore greater confidence in the use of such powers.

Question 3

• Would the removal of the restriction imposed by paragraph 7 of section 22 of the Local Government in Scotland Act 2003 (which states expressly that the Power to Advance Wellbeing under section 20 of the Act does not enable a local authority to do anything for the purposes of raising money, whether by levying or imposing any form of tax or charge, by borrowing or otherwise. Only the specific power in the 1970 Act can be relied upon to generate revenue through the supply of goods and services) facilitate the aspirations of local authorities to increase local revenue generating powers?

Question 5

• Would a broadening of the scope and meaning of ‘wellbeing’ contained in the 2003 Act (see note below) provide an effective alternative to a General Power of Competence?

Question 6

• Would the provision of specific greater powers within the 2003 Act (see note below) provide an effective alternative to a General Power of Competence?

Question 8

• Would the removal of the restriction on duplication of functions, contained within section 22 of the Local Government in Scotland Act, provide an effective alternative to a General Power of Competence?

Question 10

• Would the removal of the requirement to gain Ministerial consent to pursue income through the supply of goods and services deliver the aspirations of local authorities?

Question 24

• Would similar provisions to those provided by the Island (Scotland) Act 2018 provide an effective alternative to a General Power of Competence for mainland authorities?

Theme 3: Introduction of a General Power of Competence

Eight questions were asked in this section to understand:

a) how a General Power of Competence would be utilised to benefit the local area and its residents and,

b) in relation to other UK administrations, to understand the continued reluctance to rely on their existing General Power of Competence and therefore how to articulate effective enabling legislation in which local authorities have confidence.

Question 9

• What trading activity would local authorities wish to pursue beyond the current power to provide goods and services, contained in the Local Authorities (Goods and Services) Act 1970? - Please provide examples

Question 11

• What further activity would local authorities wish to undertake, beyond providing goods and services to the local area and/or persons within that area? - Please provide examples

Question 13

• What type of commercial activity would local authorities wish to pursue, utilising a General Power of Competence?

Question 17

• What further investment powers do local authorities envisage requiring beyond those already conferred by statute and statutory guidance? - Please provide examples of how such powers would be utilised to benefit the local area and people living within the local area.

Question 19

• How would a General Power of Competence be used to improve the delivery of public services, ensure greater efficiency in the use of available resources and maximise outcomes for the local area and persons within the local area?

Question 20

• How could we better articulate a General Power of Competence in Scotland to mitigate concerns and provide greater assurance both for local authorities and those they engage with?

Question 21

• Since the General Power was introduced in England, Wales and Northern Ireland how has this been used to benefit the local area?

Question 22

• What are the perceived barriers and/or limitations of the General Power of Competence in place in England, Wales and Northern Ireland?

Theme 4: Greater controls

Six questions were asked in this section to seek views on greater controls to accompany any legislative amendments to mitigate risk and ensure transparency and public accountability.

Question 12

• Should the introduction of greater local authority legislative powers continue to constrain the types of goods and services a local authority can provide? - Please provide examples

Question 14

• "Should greater legislative powers continue to constrain the types of commercial activity that a local authority can undertake?

Question 15

• Should greater legislative powers continue to constrain a local authority from engaging in commercial activity or any other activity beyond the local area? - Please provide reasons.

Question 16

• What greater financial controls or limitations, particularly in relation to borrowing and investments, should accompany a General Power of Competence in Scotland to protect core services? - Please explain your answer

Question 18

• Should there be greater reporting/disclosure requirements to ensure transparency in the use of public funds for borrowing and investment purposes and how these activities directly benefit the local area? - Please explain your answer.

Question 23

• Should a local authority’s use of a General Power of Competence be required to align to local regeneration or other demonstrable local area well-being enhancement? - Please explain your answer.