Local authority general power of competence: consultation analysis

Overview of consultation responses

Summary of responses

The consultation elicited a wide range of views and did not ultimately deliver a definitive preference for the next steps.

Amendments to existing legislative powers or introduction of a General Power of Competence

Of the 34 respondents, 13 supported the introduction of a General Power of Competence, a further seven respondents appeared to be supportive of or open to either amendments to existing legislation or to the introduction of a General Power of Competence and two expressed support for amendments to existing legislation in place of a General Power of Competence. Nine respondents did not support either amendments to existing legislation or the introduction of a General Power of Competence and the remaining three respondents provided general observations rather than a conclusive position either way.

Proponents of a General Power of Competence, typically local authorities and professional stakeholders, highlighted the limitations of current statutory arrangements and did not consider that these limitations would be successfully addressed by amending existing statutory powers. In particular, the narrow judicial interpretation of the wellbeing power by the courts and adherence to the ultra vires principle, that councils may do only what they are specifically permitted to do in law, was frequently highlighted as a barrier to innovation. However, this was also noted several times by respondents in reference to perceived restrictions of the General Power of Competence in place in other UK administrations.

Those who were unsupportive of legislative amendments or the introduction of a General Power of Competence, typically individual respondents or professional bodies, raised concerns in relation to public accountability, increased risk to the limited resources of the Scottish budget, lack of alignment with the development of the wider public sector reform agenda and potential for statutory services to suffer as a consequence of the pursuit of revenue generation agendas. In particular, the fixed budget of the Scottish Government was highlighted as of significant concern in terms of the resulting risk to the Scottish budget of offering greater financial freedoms to local authorities, as was the lack of the fiscal levers available to the UK Government to “bail out” a local authority in financial difficulty. In a small number of cases, where a local authority in England, often through excessive commercialisation, has been unable to service its financial commitments, the UK Government has permitted the local authority to increase borrowing to bridge the gap, thereby protecting other government spending programmes. The Scottish Government does not have this power and therefore the liabilities and financial risks arising from local authority commercialisation may have direct consequences for the Scottish budget and its spending programmes.

Six local authorities and one professional stakeholder felt that expansion of the existing Power to Advance Wellbeing could provide an effective alternative to a General Power of Competence but appeared to support either proposal.

Two local authorities felt that greater specific powers rather than a General Power of Competence would best serve the public interest whilst providing the flexibility and greater certainty sought by local authorities to pursue innovation without fear of legal challenge. One respondent noted that “an explicit amendment to existing legislation would be easier to argue as an extension of local authority powers than a completely new provision. It would be a more concrete reflection of parliamentary intention to broaden the vires principle, and [provide a] more clearly defined concept of 'wellbeing' [which] could reduce legal uncertainties and give local authorities more confidence to act without fear of overstepping their legal boundaries.”

Note: Individual respondents were unsupportive of either amendments to existing legislation or to the introduction of a General Power of Competence.