49. Accordingly, in this case, unless there is some other way in which the relevant assistance can be provided, the rights of the claimant and her daughter will be infringed unless it is possible, using section 3 of the HRA, to construe the section compatibly with the claimant’s Article 8 rights. Before considering that issue, I shall consider whether the authority has the power to provide this assistance pursuant to section 2 of the LGA as the Secretary of State contends.
Section 2 of the LGA 2000
50. Mr Sales submits that the local authority had power to provide either accommodation or finance to secure such accommodation pursuant to section 2 of the Local Government Act 2000. The relevant provisions of section 2 are as follows.
‘(1) Every local authority are to have power to do anything which they consideris likely to achieve any one or more of the following –
(a)the promotion or improvement of the economic well-being of their area;(b)the promotion or improvement of the social well-being of their area; and(c)the promotion or improvement of the environmental well-being of their area.
(2)The power under subsection (1) may be exercised in relation to or for the benefit of –
(a)the whole or any part of a local authority’s are;, or(b)all or any persons resident or present in a local authority’s area.
(3)In determining whether or how to exercise the power under subsection (1), a local authority must have regard to their strategy under section 4.
(4)The power under subsection (1) includes power for a local authority to –
(a)incur expenditure,(b)give financial assistance to any person,(c)enter into arrangements or agreements with any person,(d)co-operate with, or facilitate or co-ordinate the activities of, any person,(e)exercise on behalf of any person any functions of that person, and(f)provide staff, goods, services or accommodation to any person.
(5)The power under subsection (1) includes power for a local authority to do anything in relation to, or for the benefit of, any person or area situated outside their area if they consider that it is likely to achieve any one or more of the objects in that subsection.
(6)Nothing in subsection (4) or (5) affects the generality of the power under subsection (1).’
Section 3 then sets certain limits to the power conferred upon the authority under section 2. The relevant provisions are as follows:
‘(1) The power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made).
(2)The power under section 2(1) does not enable a local authority to raise money (whether by precepts, borrowing or otherwise).’
Subsection (3) provides for the Secretary of State to made an order preventing local authorities from doing certain specified things; and subsection (5) empowers him to issue guidance about the exercise of that power which, when issued, the local authority must have regard to in the exercise of its section 2 power.
51. Mr Sales submits that this is an extremely wide power which is perfectly capable of embracing, at the very least, the provision of financial assistance for accommodation such as the claimant is seeking in this case. He points out that the power under subsection (4)(b) specifically covers the provision of financial assistance, and that section 2(2) in terms provides that the power can be exercised to the benefit of any persons resident or present in the local authority’s area.
52. He submits that it would be open to the local authority to conclude, in the circumstances of this case, that the provision of financial assistance for the purpose of acquiring accommodation would be capable of promoting the social well-being of their area by benefiting two persons resident there. Mr Sales referred me to the Explanatory Notes to the Local Government Act 2000. As Lord Hope indicated in R v A at para 82, it is legitimate to have regard to these when construing legislation. Paragraph 15 is as follows:
‘Together, these sections allow local authorities to undertake a wide range of activities for the benefit of their local area and to improve the quality of life of local residents, businesses and those who commute to or visit the area. This is intended to clear up much of the uncertainty which currently exists about what authorities can do. Sections 2 and 3 allow authorities to take any action, unless it is subject to statutory prohibitions, restrictions or limitations specifically set out in legislation. The intention is to broaden the scope for local authority action while reducing the scope for challenge on the grounds that local authorities lack specific powers.’
Mr Sales submits that this confirms that the power of this legislation is to confer very broad and general powers upon local authorities to be able to respond to the needs of local residents and businesses. He also relied upon certain paragraphs in the Guidance issued by the Secretary of State. This is entitled ‘Power to Improve or Promote Economic, Social, or Environmental Well-Being.’ Paragraph 7 states that ‘the new power is wide-ranging and enables the local authorities to improve the quality of life, opportunity and health of their local communities’. Paragraph 10 states:
‘… the breadth of the power is such that councils can regard it as a ‘power of first resort’. Rather than searching for a specific power elsewhere in statute in order to take a particular action, councils can instead look to the well-being power in the first instance …’
53. The power conferred by section 2 is in my judgment capable of extending to the grant of financial assistance for acquiring accommodation. The question is whether there is any ‘prohibition, restriction or limitation’ on that power which is contained in any other enactment. Initially, Mr Sales submitted that there was no such restriction even in relation to the provision of accommodation itself. However, he has resiled from that position and has recognised that there are certain statutory provisions which are to be found both in the Housing Act 1996 and in the Immigration and Asylum Act (IAA) 1999 which would constitute limitations on the power of the authority to grant accommodation to the claimant because she is an overstayer: see Housing Act 1996 ss159 to 161 and IAA 1999 s118. The former provide that a local authority shall allocate housing accommodation only to those who are qualified to be allocated it; and the latter prevents accommodation being provided to those subject to immigration control save in special circumstances not applicable here. In addition, in my view, section 185 of the Housing Act falls into the same category (which I have considered in paragraph 9 above). However, Mr Sales contends that there is no ‘prohibition, restriction or limitation’ on the power of an authority to give financial assistance for the purpose of acquiring accommodation, either in these provisions or any other. He draws a distinction between, on the one hand, a case where a statute merely confers a power in a specific field so that any limitation arises simply because the power cannot be exercised outside the specified field; and, on the other, a case where the legislation in terms imposes an express restriction or limitation on the exercise of the power. Even in the latter situation, he says that it will be necessary in each case to scrutinise the legislation carefully to see whether, properly analysed, it is intended to provide a bar to its exercise at all, or whether it is merely intended to prevent the power being exercised under the particular legislation in which the restriction is to be found.
54. Mr Sales draws an analogy from the relationship between common law and statute. He referred me to the speech of Lord Wilberforce in Shiloh Spinners v Harding [1973] AC 691 at 725, where Lord Wilberforce said this:
‘In my opinion where the courts have established a general principle of law or equity, and the legislature steps in with particular legislation in a particular area, it must, unless showing a contrary intention, be taken to have left cases outside that area where they were under the influence of the general law.’
A case where, as a matter of construction, the statute was held wholly to displace the common law is Harrison v Tew [1990] 2 AC 523. In the course of his judgment, Lord Lowry, with whose judgment the rest of their Lordships agreed, said this:
‘One must distinguish between affirmative and negative provisions: the common law can co-exist with the statutory provision with which it is not inconsistent’.