The law behind the wellbeing powers

LAML or no LAML, local government is in desperate need of a general power of competence to do anything that improves or seeks to improve the quality of life, economic wellbeing and general prosperity of their areas.

The Local Government Act 2000 powers, although useful, are still founded on Whitehall telling local government what it thinks is good for the local level.

Clearly, if a local authority gets its general power of competence wrong, the matter can be corrected by judicial review, at the ballot box and through general local media/citizen pressures.

The time has come to trust local government local government. Drafting is easy: don’t make the power restricted to existing legislation.

Dr Mirza Ahmad, chair of Bar Association of Local Government & the Public Service, corporate director of governance, Birmingham City Council

There are two issues here. On insurance, there is a power in Section 136 of the Local Government Act 1972 for local authorities to defray expenditure by “cost-pooling”, but this applies to councils, and not their companies or arm’s-length management organisations. There is an obvious and pressing need for legislation giving a clear statutory basis for commercial and mutual insurance.

In contrast, Section 2 of the Local Government Act 2000 gave councils a broad power to act to improve local economic, social or environmental wellbeing - but not to raise additional money. The inhibition has been the cost of pursuing innovative activites.

I respect the desire for a broad general power, but unless we want to give local authorities unlimited powers, some legal limitations will still be required.

Peter Keith-Lucas, local government partner, Bevan Brittan LLP, Solicitors

The wellbeing power got a battering in the LAML case but that does not mean local government necessarily needs a new power of general competence.

The issue in LAML was not the extent of the power but how it was used. The courts have tended to attack powers where judges think the local authority acted imprudently, however well meaning. A general competence power could equally become victim to a narrow-minded judiciary. If government brought in a general competence power it would need to reassure those doing business with local government that their investment was safe.

There is plenty of existing legislation which used carefully can help local authorities to innovate, including the wellbeing power, the best value duty and other less well-known powers.

Helen Randall, head of public sector commercial, Trowers & Hamlins LLP

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