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LGiU Briefing on the Localism Bill

LGiU Briefing on the Localism Bill

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Published by LGIU
This briefing from the LGIU deals with the key elements of the Localism Bill Other important elements, on council constitutions and elected mayors, housing, council tax, and London, may be the subject of separate briefings.
This briefing from the LGIU deals with the key elements of the Localism Bill Other important elements, on council constitutions and elected mayors, housing, council tax, and London, may be the subject of separate briefings.

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Published by: LGIU on Jan 18, 2011
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05/19/2011

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LGiU Second Reading briefing on the Decentralisation and Localism andBill 2010Overview
Localism is a main theme of current government policy, and the Localism Bill ispresented as the main vehicle for measures that will strengthen the capacity of communities and individuals to find local solutions to local problems. The pursuit of localism, seen from LGiU’s perspective, takes the form of strengthening local democracy by putting citizens in control of their own lives,communities and local services, and achieving this by shifting the balance of powerfrom Whitehall to localities. From this perspective, the key question will be, Will theLocalism Bill improve the ability of local people to make decisions about localservices and public spending priorities, and will it engage them as citizens within aframework sustained by a strong, responsive council?LGiU welcomes the Government’s commitment to localism and would like to see theBill affirm the role of councils, whilst limiting the current Bill’s centralising powers.For example in the determination of the principles on which council tax is calculatedannually by the Secretary of State, and implicitly, in the creation of anunprecedented ability for the Secretary of State to introduce significant measuresthrough secondary regulation. This briefing deals with the key elements of the Bill which will have an impact onLocalism. Other important elements, on council constitutions and elected mayors,housing, council tax, and London, may be the subject of separate briefings.
Overview
An overview of the localism elements of the Bill shows that:1. The
General Power of Competence
, while providing a degree of relaxation of constraint on councils’ powers, could be strengthened.2. The involvement of local people through
referendums
on general issues arelikely to be used rarely, and are introduced in parallel to the unfortunate repeal of rights to petition which provide a straightforward way for most issues of localconcern to be raised in a flexible and immediate way.
 
3.
Referendums on council tax
will provide a highly structured mechanism forthe Secretary of State to determine the level of council tax.4. The
Community Right to Challenge
could be an excellent opportunity forcharities and not-for-profit organisations, and groups of council staff to bid toprovide council services, however the role of the local authority as an arbiterbetween rival bids, and as a guarantor against service failure will need to be moreclosely examined.5.
Arrangements for parish councils to nominate buildings and assets of community value
may be extended to community organisations, but will notprevent the intervention of Ministers in what the Bill seeks to characterise as localdecisions.6. The revision of the
local planning regime
to allow local people to be involved inplanning their areas consists of a highly cumbersome and resource-intensivescheme of inspections and referendums which is ultimately likely to be funded bydevelopers, with councils also bearing significant costs.
Powers and status of local government: General Power of Competence –clauses 1-7
 The Bill provides a power for councils in England to do anything lawful, and in this itis broader than the well-being power. It makes clear that councils will be able tomake decisions that involve activities anywhere in the UK or abroad, to do so for acharge or for a commercial purpose, and whether the activity benefits the authorityor local people, or, it appears, others benefit, for example through the externalprovision of services to other organisations. The well-being power is repealed as faras England is concerned: it will continue to apply in Wales. There are some powerful caveats. Decisions using the general power will be subjectto the express limitations on what councils can do in existing legislation - thoughthis may overcome one problem associated with the well-being power by narrowingthe scope of the restrictions that apply – and it will be possible to exclude use of thegeneral power in particular fields in future legislation too. The limitations oncharging and providing services on a commercial basis are similarly based on thecurrent law, so that it won’t be possible to charge a commercial rate for servicesprovided using the new power, unless this is done through a company. Nor should itbe forgotten that activities using the new power will be subject to the general law,including competition law, and that decisions will be governed by the tests, such asreasonableness, that apply to all local authority decisions. The Secretary of State reserves some important powers: to make orders preventingspecific activities using the power – a parallel with the well-being power – and –
 
what is new - to introduce orders making use of the general power subject toconditions, whether generally, or in relation to specific activities. It will be importantfor Ministers to make clear at Committee Stage whether it is intended to rely on thissecond provision to introduce a framework for use of the general power, or whetherthis is to be a reserve power to be used should serious problems arise in particularinstances.
Ommissions
 There are some important omissions in what LGiU and others believe should beincluded with the introduction of a general power. Firstly, the power has been madesubject to existing law: any changes will only come about as a result of successfulapplications to the Secretary of State on specific topics. LGiU would want to see ageneral review of existing law, removing provisions that conflicted with the generalpower, in this way dealing with problem areas in advance rather than leavingcouncils to find themselves in difficulty.Secondly, the power is being introduced into a highly centralised local governmentenvironment, in which a broad statement of the role and purpose of localgovernment would make a profound difference to the way in which the courtsinterpret the law, in which civil servants across Whitehall deal with local issues, andin the confidence that local representatives bring to their tasks. Such a statement,by making parliament’s intention clear, would mean that the courts had to takeaccount of the broad purpose underlying the new law when reviewing cases broughtagainst local authorities, and avoid the narrow interpretations that still emergewhen judges are given the chance to determine the responsibilities of localgovernment.
Comment
 The proposals for a broad general power will be welcomed by most in localgovernment, and it is to the credit of the government that they have tackled theneed for councils to have greater confidence in their general powers, in contrast tothe ‘sticking plaster’ approach to solving problems as they arose, followed to date.Substantial promises were made, and it is clear that the power does not providethat promised in the Conservative pre-election documents and ministerialstatements, that no action except raising taxes will be beyond the powers of localgovernment in England.Although the general power is broadly expressed, much will depend on the way inwhich it is interpreted by the courts and how lawyers anticipate it will beinterpreted when they are advising councils on their decisions.It is important that the general power is underpinned by a broad statement, at alevel which protects the ability of locally elected representatives to make

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