Local authority general power of competence: consultation analysis

Consultation theme 2: amendments to existing legislation

The existing General Power of Competence in other UK administrations appears to be underutilised due to risks of judicial review and adverse interpretation by the courts. The consultation therefore proposed a number of potential amendments to existing legislative powers intended to provide greater freedoms through specific enhanced powers rather than a general power which may be similarly subject to the adverse judicial interpretation seen with the Power to Advance Wellbeing. 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. Annex B summarises the questions asked within this theme.

Specific greater powers/ broadening of the scope of the ‘wellbeing’ power

Overall, 27% of respondents supported specific greater powers or broadening of the scope of the ‘wellbeing’ power. 26% considered the proposals insufficient, and 13% did not support amendments to legislative powers. The remaining respondents either did not answer the question or provided general observations rather a conclusive position on the question asked.

Some respondents noted that specific well-defined legislation rather than a General Power of Competence would better overcome concerns as to potential judicial interpretation and also provide greater confidence and assurance to both local authorities and to the public. Those respondents suggested this would offer more appropriate balance between the greater financial freedoms that would enable local authorities to innovate for the benefit of their local area whilst providing public assurance that appropriate safeguards are in place to mitigate financial risk.

However, other respondents felt that the introduction of a General Power of Competence would more effectively resolve the current statutory restrictions and associated potential for narrow judicial interpretation, by providing a ‘blank slate’ for local authorities to operate from.

Removal of the restriction on raising revenue: Less than half of respondents (47%) supported the removal of the section 22 restriction on the generation of revenue, 38% of respondents either did not support this amendment or felt that it would be insufficient in isolation. The remaining respondents either did not answer the question asked or provided general observations rather than a conclusive position.

Broadening the scope of the wellbeing power: 18% of respondents did not support the broadening of the scope of the wellbeing power. 30% of respondents considered this to be insufficient and 24% of respondents felt that this would be an effective alternative to a General Power of Competence. The remaining respondents either did not answer the question asked or provided general observations rather than a conclusive position.

Greater specific powers: 15% of respondents did not support legislative amendments to provide greater specific powers to local authorities. 29% of respondents felt that this would be insufficient and 26% supported this proposal as an effective alternative to a General Power of Competence. The remaining respondents either did not answer the question asked or provided general observations rather than a conclusive position.

Removal of restriction on duplication of functions: 15% of respondents felt that the restriction on the duplication of functions should remain, 32% of respondents felt that this would be insufficient and 21% of respondents supported this proposal as an effective alternative to a General Power of Competence. The remaining respondents either did not answer the question asked or provided general observations rather than a conclusive position.

Removal of requirement for Ministerial consent to trade: 15% of respondents did not support this proposal, 33% supported this proposal but considered it to be insufficient in isolation and 15% of respondents supported this proposal as an effective alternative to a General Power of Competence. The remaining respondents either did not answer the question asked or provided general observations rather than a conclusive position.

Replication of provisions of the Islands (Scotland) Act 2018 provisions for mainland authorities: 29% of respondents supported this proposal, 12% did not support the replication of the 2018 Act provisions to mainland local authorities, and 21% of respondents considered this proposal insufficient. The remaining respondents either did not answer the question asked or provided general observations rather than a conclusive position.