In my administrative law lectures, I get students to practise an action that I explain ought to become instinctive in the minds of lawyers working for (or against) government. You extend your index finger and, in a sweeping movement, point to a law in the book in front of you, or on the library shelf, or on Westlaw, or wherever. As Mr Justice Laws said in Fewings, ‘For private persons, the rule is that you may do anything you choose which the law does not prohibit … But for public bodies the rule is opposite, and of another character altogether. It is that any action to be taken must be justified by positive law’.
Pointing at positive legal authorisation for an act of government is not always straightforward – and that is half the fun and challenge in studying administrative law. The ‘positive law’ may be implied; it may be unclear. The issue in Fewings was whether Somerset County Council could lawfully ban hunting on its own land (a decade before the Hunting Act 2004 put in place a national ban on hunting with dogs). There was some awkward scrabbling around for any statutory basis for local authority management of open spaces but the parties alighted on (and the judges agreed) that s 120(1)(b) of the Local Government Act 1972 was a good enough foundation, even though it was ostensibly about the acquisition rather than the on-going management of land for ‘the benefit, improvement or development of their area’. Laws J and the majority of the Court of Appeal held, for somewhat different reasons, that s 120(1)(b) did not enable a hunting ban on council-owned land. The council had mistakenly assumed it could act like a private landowner and had not applied its collective mind to the purposes or limits of the power conferred on it by s 120. The judgments were regarded as undemocratic by some.
Another complication in the finger pointing approach is s 111 of the Local Government Act, which gives local authorities ‘subsidiary powers’ to do anything ‘which is calculated to facilitate, or is or conducive or incidental to, the discharge of any of their functions’. This wriggle-room can’t be taken too far into things that are ‘incidental to the incidental’. If we had time in my lectures, we could go into the ‘wellbeing powers’ created by s 2 of the Local Government Act 2000 and the twists and turns that ensued from that.
My finger-pointing exercise will need a radical re-think for the 2012-13 academic year. Section 1 of the Localism Act 2011 came into force in February, several weeks earlier than anticipated as a government response to the High Court’s ruling that Bideford Town Council had no powers to allow Christian prayers to be said at the start of council meetings. Mr Justice Ouseley held ‘There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council’.
The situation is now different under s 1(1) of the 2011 Act, which says ‘A local authority has power to do anything that individuals generally may do’. This includes ‘power to do it anywhere in the United Kingdom or elsewhere’, ‘power to do it for a commercial purpose or otherwise for a charge, or without a charge’ and ‘power to do it for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area’ (s 1(4)). This general power ‘is not limited by the existence of any other power of the local authority which (to any extent) overlaps with the general power’ (s 1(5)).
At second reading of the bill that became the 2011 Act, Eric Pickles MP (Con), Secretary of State for Communities and Local Government, said:
‘The reason why the general power of competence is so important is that it turns the determination requirements on their head. All those fun-loving guys who are involved in offering legal advice to local authorities, who are basically conservative, will now have to err on the side of permissiveness. That is a substantial change …’.
The government believes that the formula used is judge-proof. Junior minister Andrew Stunell MP (Lib Dem) assured colleagues on the public bill committee ‘just how broad that power is’ and, thanks to subsections (5) and (6), the ‘courts will find it difficult – we have been advised that they will find it impossible – to unpick that’. Later he said, clarifying the intended reach of the new general power:
‘In the past, local authorities could only do things that were permitted to them by legislation. We are now inverting that and saying, “You can do anything that isn’t forbidden by legislation.” That does not mean that we are taking away the current forbidden territory and saying to authorities that they can go into the forbidden territory. It is not saying that they can abandon their statutory and legal duties that are imposed by existing legislation.’
The idea of a power of general competence (PGC) for local authorities is neither peculiarly English nor is it new.
For example, the pros and cons of a PGC were hotly debated a decade ago in New Zealand, where it was seen variously as a ‘coming of age’ for local authorities to be ‘responsive to local needs’ or ‘an unhindered invitation for small-minded politicians and bureaucrats to meddle and construct empires funded by the taxes of their passive citizens no longer protected by the check and balance that prescription provides’.
In England in 1967, the Maud committee report on the management of local government recommended a PGC. The report argued ‘ultra vires as it operates at present has a deleterious effect on local government because of the narrowness of the legislation governing local authorities’ activities. The specific nature of legislation discourages enterprise, handicaps development, robs the community of services which the local authority may render, and encourages too rigorous oversight by central government. It contributes excessive concern over legalities and fosters the ideas that the clerk should be a lawyer’ (para 283). Forty-three years on, similar sentiments led to the promise of a PGC as a promise in the Coalition Government’s agreed programme.
So far as I can see, the introduction of the PGC for local authorities has sparked very little constitutional concern or even interest in England. There was, for example, no report from the House of Lords Constitution Committee drawing attention to the implication of a PGC for the rule of law. Debate on the bill leading to the Localism Act 2011 was rarely couched in constitutional terms. Why so? I have two suggestions.
First, in the UK there is a general lack of interest in local government from a constitutional standpoint. This seems to be the first post on this blog focusing on local authorities. In law schools, local government has squeezed off the syllabus of most undergraduate public law courses degrees by the Human Rights Act, devolution and Europe. It’s also noteworthy that the House of Lords Constitution Committee has never tackled central-local relations, or local government in and of itself, in an inquiry.
Second, it is possible that the PGC is less constitutionally and legally significant than at first sight it appears to be. In 1967, Maud committee report did consider the constitutional implications of its recommendation to create a PGC. The report sought to reassure the ‘fun-loving guys’ in local government: ‘the modification we propose would not mean that local authorities would cease to be subject to the rule of law. The supremacy of Parliament is not in question. Nor are we advocating the abolition of the doctrine of ultra vires for local authorities would still have to work within the statutes. They would continue to have statutory duties and limitations imposed on them and permission powers granted to them, and their governmental and coercive powers would be regulated by law’ (para 284). Some commentators, looking at the version of a PGC contained in the Localism Act 2011, have sought to downplay the scope of councils’ room for manoeuvre. For example, Tim Kerr QC argues that ‘the usual public law constraints (rationality, relevant considerations, procedural fairness, disregard of irrelevant considerations)’ would apply ‘to exercise of the power of general competence, even though an “individual” in the private sphere is not subject to them’. Sections 2 and 3 of the 2011 Act also needs to be considered: the former defines ‘boundaries of the general power’ (in particular, that the PGC doesn’t override express prohibitions of local government action contained in the statute book) and the latter ‘limits on charge in exercise of general power’. To this can be added the controlling force of ‘constitutional legislation’ such as the Human Rights Act 1998 and the Equality Act 2010. Clearly, the 2011 Act does not do away with the idea the local authorities are creatures of statute subject to the constraints of ultra vires.
The truth of the matter is that we do not yet know what councils will do with the PGC. In June 2011, the House of Commons Communities and Local Government select committee, in their report on localism, called on the ‘Government work with the Local Government Association to set out examples of specific ways in which the general power of competence will enable local authorities to extend their role beyond that conferred by the well-being powers.
However the power is used something of significance affecting the rule of law has been brought about by s 1 of the Localism Act. As Laws J explained in Fewings, ‘The rule [that any action by a public body must be justified by positive law] is necessary in order to protect people from arbitrary interference by those set in power over them’. Section 1 is ‘positive law’ but of such breadth that it looks as if it will largely be down to the political constitution to shape its use; that, at least, is the Government’s goal. Whether a revitalised local politics is up to the job remains to be seen.
Andrew Le Sueur is Professor of Public Law at Queen Mary, University of London and co-convenor of the UK Constitutional Law Group.