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Lenin, the Russian revolutionary of limited liberal sensibilities, considered that as long as the state exists ther...
Lenin, the Russian revolutionary of limited liberal sensibilities, considered that as long as the state exists there is no freedom.

The government would presumably beg to differ since its Local Government Bill was announced in a press release headed: 'Councils freed from Whitehall controls.' This promised a 'substantial devolution of power to local government'.

However, the proposed freedoms are performance related. While all municipal inmates will be moved to a more liberal regime, more gate keys giving wider freedom of association around the council complex will be handed to better performers.

Orders under s16 of the Local Government Act 1999 - power to modify statutes and confer new powers to facilitate best value - are still expected from the ODPM. These will apparently deal with matters other than charging and trading. An example is a general power to form and participate in corporate bodies. Charging and trading is covered by part eight of the Bill.

Councils will be able to charge at cost for the provision by agreement of discretionary services where there is no relevant power or prohibition in force. The power to make regulations has been removed but there remains a duty to have regard to any guidance. Clause 94 gives central power to remove charging powers for any period for particular councils, types of council and descriptions of service.

Council trading will be able to take place only through companies in which councils have interests. Statutory orders enabling trading may not authorise trading in respect of a statutory duty or that which is otherwise permitted by statute. Trading powers may be subject to conditions imposed by order and must be exercised with regard to any guidance. Orders enabling trading may be made by reference to a council's performance category. This is among the provisions enabling differential freedoms.

Provisions on staff transfers will require councils to comply with statutory directions and have regard to guidance. The duty of best value will be subject to this. Statutory directions must result in contractors being required to secure enforceable pension protection for transferring staff. This means the same or broadly comparable pension benefits as previously.

While councils and their stakeholders now know their performance category and therefore their freedoms and flexibilities, universal joy is unlikely. For one person's freedom is often another's limitation.

Nicholas Dobson

Partner, head of local government law, Pinsent Curtis Biddle

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