Introduction and statutory machineryA plain English guide to the Localism Act
17.1The starting point is that local authorities have the power to do anything that is calculated to facilitate or that is conducive or incidental to the discharge of any of their functions, bestowed by section 111(1) of the Local Government Act 1972 (‘the ancillary power’).
17.2Local authorities additionally had a ‘general well-being power’ (‘GWP’) under sections 2–4 of the Local Government Act (LGA) 2000, which is now retained for Welsh local authorities only.
17.3English local authorities now have a ‘general power of competence’ (‘GPC’) under sections 1–8 of the Localism Act 2011, in addition to the ancillary power and instead of the GWP.
17.4Sections 3 and 4 of the Localism Act 2011 contain provisions relating to charging, and the setting up of companies to enable local authorities to do things for commercial purposes, which are outside the scope of this book, which focuses on the provision of services to meet needs. As far as that is concerned, the position now is that a local authority can provide almost any type of care or welfare service, under section 1 of the Localism Act 2011, providing that what it does is not inconsistent with a ‘prohibition, restriction or limitation’ on its statutory powers, found elsewhere.
17.5Thus:
•where there is a statutory lacuna, a local authority can exercise its GWP (in Wales) or GPC (in England) to provide a service;
1R (Theophilus) v Lewisham LBC [2002] EWHC 1371 (Admin), [2002] ELR 710. •that remains the position where, although there is no lacuna, existing functions only go so far, but no further: this is not the type of case generally considered to be one where statutory powers are subject to a ‘limitation’ but simply where they stop at a certain point
2R (W) v Lambeth LBC [2002] EWCA Civ 613, (2002) 5 CCLR 203.and, in any event, the GPC (or the GWP) is only excluded by an express limitation;
3See the terms of section 2(4) of the Localism Act 2011. •beyond that, however, the GWP and GPC are not intended to allow local authorities to take action that would frustrate a clear Parliamentary intent that such action should not be taken, evidenced by the existence of a statutory ‘prohibition, restriction or limitation’;
4R (Khan) v Oxfordshire CC [2004] EWCA Civ 309, (2004) 7 CCLR 215. •where there is no relevant ‘prohibition, restriction or limitation’ a local authority is required to exercise its GWP or GPC to avoid a breach of ECHR rights;
5R (J) v Enfield LBC [2002] EWHC 432 Admin, (2002) 5 CCLR 434. •where there is a relevant ‘prohibition, restriction or limitation’ case-law has cast doubt on the power to use the GWP and GPC to avoid a breach of ECHR rights;
6R (MK) v Barking and Dagenham LBC [2013] EWHC 3486 (Admin). •there is, however, an important distinction to be drawn between the GWP and the GPC in that a ‘post commencement limitation’ will only prevent the exercise of the GPC in cases where Parliament has explicitly stipulated that it must do so:
•a ‘post commencement limitation’ only prevents the exercise of the GPC if it is ‘expressly imposed’ (section 2(4) of the Localism Act 2011); and
•a ‘post commencement limitation’ only prevents the exercise of the GPC if it is ‘expressed to apply – (i) to the general power, (ii) to all of the authority’s powers, or (iii) to all of the authority’s powers but with exceptions that do not include the general power’ (section 2(2) of the Localism Act.
7As noted in R (GS) v Camden LBC [2016] EWHC 1762 (Admin), (2016) 19 CCLR 398. 17.6The principal relevant provisions of the LGA 2000 (applicable in Wales and, prior to the Localism Act 2011, in England) are as follows:
Promotion of well-being
2(1) Every local authority in Wales are to have power to do anything which they consider is likely to achieve any one or more of the following objects–
(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 area, or
(b)all or any persons resident or present in a local authority’s area.
(3B) In determining whether or how to exercise the power under subsection (1), a local authority in Wales must have regard to the community strategy for its area published under section 39(4) of the Local Government (Wales) Measure 2009 or, where the strategy has been amended following a review under section 41 of that Measure, the strategy most recently published under section 41(6).
(3C) The community strategy for the area of a community council is the strategy referred to in subsection (3B) that is published by the county council or county borough council in whose area lies the community or communities for which the community council is established.
(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).
Limits on power to promote well-being
3(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).
(3)The Welsh Ministers may by order make provision preventing local authorities from doing, by virtue of section 2(1), anything which is specified, or is of a description specified, in the order.
(3A) The power under subsection (3) may be exercised in relation to–
(a)all local authorities,
(b)particular local authorities, or
(c)particular descriptions of local authority.
(4)Subject to subsection (4A), before making an order under subsection (3), the Welsh Ministers must consult such representatives of local government and such other persons (if any) as he considers appropriate.
(4A) Subsection (4) does not apply to an order under this section which is made only for the purpose of amending an earlier order under this section–
(a)so as to extend the earlier order, or any provision of the earlier order, to a particular authority or to authorities of a particular description, or
(b)so that the earlier order, or any provision of the earlier order, ceases to apply to a particular authority or to authorities of a particular description.
(5)Before exercising the power under section 2(1), a local authority must have regard to any guidance for the time being issued by the Welsh Ministers about the exercise of that power.
(6)Before issuing any guidance under subsection (5), the Welsh Ministers must consult such representatives of local government and such other persons (if any) as he considers appropriate.
[…]
(8)In this section ’enactment’ includes an enactment comprised in subordinate legislation (within the meaning of the Interpretation Act 1978).
17.8The principal relevant provisions of the Localism Act 2011 are as follows:
Local authority’s general power of competence
1(1) A local authority has power to do anything that individuals generally may do.
(2)Subsection (1) applies to things that an individual may do even though they are in nature, extent or otherwise–
(a)unlike anything the authority may do apart from subsection (1), or
(b)unlike anything that other public bodies may do.
(3)In this section ’individual’ means an individual with full capacity.
(4)Where subsection (1) confers power on the authority to do something, it confers power (subject to sections 2 to 4) to do it in any way whatever, including–
(a)power to do it anywhere in the United Kingdom or elsewhere,
(b)power to do it for a commercial purpose or otherwise for a charge, or without charge, and
(c)power to do it for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area.
(5)The generality of the power conferred by subsection (1) (‘the general power’) is not limited by the existence of any other power of the authority which (to any extent) overlaps the general power.
(6)Any such other power is not limited by the existence of the general power (but see section 5(2)).
(7)Schedule 1 (consequential amendments) has effect.
Boundaries of the general power
2(1) If exercise of a pre-commencement power of a local authority is subject to restrictions, those restrictions apply also to exercise of the general power so far as it is overlapped by the pre-commencement power.
(2)The general power does not enable a local authority to do–
(a)anything which the authority is unable to do by virtue of a pre-commencement limitation, or
(b)anything which the authority is unable to do by virtue of a post commencement limitation which is expressed to apply–
(i)to the general power,(ii)to all of the authority’s powers, or(iii)to all of the authority’s powers but with exceptions that do not include the general power.
(3)The general power does not confer power to–
(a)make or alter arrangements of a kind which may be made under Part 6 of the Local Government Act 1972 (arrangements for discharge of authority’s functions by committees, joint committees, officers etc);
(b)make or alter arrangements of a kind which are made, or may be made, by or under Part 1A of the Local Government Act 2000(arrangements for local authority governance in England);
(c)make or alter any contracting-out arrangements, or other arrangements within neither of paragraphs (a) and (b), that authorise a person to exercise a function of a local authority.
(4)In this section–
‘post-commencement limitation’ means a prohibition, restriction or other limitation expressly imposed by a statutory provision that–(a)is contained in an Act passed after the end of the Session in which this Act is passed, or(b)is contained in an instrument made under an Act and comes into force on or after the commencement of section 1;‘pre-commencement limitation’ means a prohibition, restriction or other limitation expressly imposed by a statutory provision that–(a)is contained in this Act, or in any other Act passed no later than the end of the Session in which this Act is passed, or(b)is contained in an instrument made under an Act and comes into force before the commencement of section 1;‘pre-commencement power’ means power conferred by a statutory provision that–(a)is contained in this Act, or in any other Act passed no later than the end of the Session in which this Act is passed, or(b)is contained in an instrument made under an Act and comes into force before the commencement of section 1.