The Scottish Government launches consultation on local authority General Power of Competence

The consultation paper can be found here.

The consultation aims to establish whether local authorities should have other powers in addition to those already conferred by existing legislation. 

Differing approaches in the UK

Local authorities are statutory creatures and, as such, are only able to exercise powers that are set out expressly conferred on them by statute. A local authority cannot rely on common law powers in the same way as central government, and acting beyond its statutory powers would be viewed as "ultra vires", meaning it is beyond the powers and outwith the scope of local authorities' competence. This can be limiting for local authorities, particularly in promoting and facilitating local economic growth.

In England, Wales and Northern Ireland, however, local authorities already have a General Power of Competence, which supplements their specific statutory powers and functions. The General Power of Competence was introduced in England, Wales and Northern Ireland by way of:

• Sections 1 – 8 of the Localism Act 2011 in relation to England;
• Sections 79 – 83 of the Local Government (Northern Ireland) Act 2014 in relation to Northern Ireland; and
• Sections 24 – 37 of the Local Government and Elections (Wales) Act 2021 for Wales. 

Scottish local authorities have no such power. This power is generally categorised as a power to do "anything that individuals may generally do," unless specifically prohibited and is wide-ranging. It transforms the presumption that a local authority cannot do anything that it does not have a specific power to do to a local authority can do anything unless it is prohibited from doing so.

In particular, the General Power of Competence cannot be used in England, Wales and Northern Ireland to:

• do anything that is specifically prohibited in legislation;
• raise new taxes;
• alter the political management structure of the authority; or 
• trade in services that they already have a statutory requirement to provide.

The "well-being power"

The General Power of Competence succeeded the power to advance "well-being," which allowed local authorities in England and Wales to take actions that would promote economic, social or environmental well-being by virtue of the Local Government Act 2000, and is considerably wider.

In the absence of a General Power of Competence, Scottish local authorities still rely on the power to advance well-being, which is set out in section 20 of the Local Government in Scotland Act 2003. It is defined as a power to do "anything which it considers is likely to promote or improve the well-being of its area and/or persons within that area." There is no such equivalent for Northern Ireland. 

In Scotland, the well-being power includes the power to:

• incur expenditure;
• give financial assistance to any person;
• enter into arrangements or agreements with any person;
• co-operate with, or facilitate or co-ordinate the activities of, any person;
• exercise on behalf of any person any functions of that person; and
• provide staff, goods, materials, facilities, services or property to any person.

These are all, however, tied to the notion of well-being and there is no equivalent power to the General Power of Competence, which enables Scottish local authorities to adapt and innovate to meet the needs of their local authority areas and financial pressures in the same way as the rest of the UK.

Purpose of consultation

The consultation "seeks to explore how best to deliver a level of confidence and assurance to local authorities to ensure that any further powers are utilised effectively."

Additionally, the consultation "seeks to explore how best to deliver a level of confidence and assurance to local authorities to ensure that any further powers are utilised effectively."

In carrying out this consultation, the Scottish Government aims to garner responses on the existing legislation in Scotland, as well as related legislation in England, Wales and Northern Ireland, on "the barriers to using such power, the concerns and perceived risks, and potential conflict with other legislative provisions."