Local government lawyer role enhanced by Localism Act, says minister

The general power of competence and other reforms in the Localism Act 2011 are a very positive development for local government lawyers, a minister has insisted.

Speaking at the Association of Council Secretaries and Solicitors’ (ACSeS') Development Forum in Southampton this week, Bob Neill MP told delegates that he hoped that the general power of competence would genuinely give local authorities “real opportunities to be entrepreneurial”.

He added: “It also gives great chances for the local authority lawyer because it is going to require a much more ‘can-do’ attitude amongst both members and officers. The role of legal adviser is absolutely central to helping that cultural change embed itself. So it is a real challenge and a real opportunity there.”

Neill, Parliamentary Under Secretary of State at the Department for Communities & Local Government, said the role of the monitoring officer would remain as it was and as important as it was, in the same way as financial monitoring will once the Audit Commission is abolished.

“The role of the professional local government lawyer will remain a very important one,” he said. “But I do think too that we need to be flexible and reactive about how we deal with the best way to structure things.”

Neill added that the reforms meant that much more responsibility and risk would fall on members, who would need quality legal advice more than ever.

“There has always been that need but your role, it seems to me, becomes enhanced by this,” he argued. “It becomes less about what we cannot do and more about the ways in which we can do something. The scope for local authorities under the general power to be involved in many more entrepreneurial activities is very considerable. There’s going to be a need for commercial nous in the way we conduct our operations.”

Neill said the development of local economic partnerships and the prospect of tax increment financing would be among the fresh challenges for local government lawyers.

The minister admitted that the Localism Act had not been without controversy. “When you make a major cultural shift – and that is what it is, then of course there will be controversy, there will be scepticism, there may be outright hostility, there will be some doubt but that is how you change things and how you move things on,” he claimed.

Neill explained that shifting power back was the key starting point for the legislation. He said that one of the frustrations he had during his 16 years as a borough councillor and eight years on a London-wide authority was the seepage of power away from local government throughout that period.

“Gradually the room for discretion, the room for manoeuvre, had been whittled down – sometimes for what seemed reasonable causes at the time but cumulatively the opportunity for initiative had been reduced,” the minister said. “That was the underpinning reason for making the changes that we have done.”

But Neill said it was worth bearing in mind that the object of the Bill was not just about passing power down from Whitehall and Westminster to local authorities.

“That’s is a key part of it, that’s what the whole general power of competence is about, which is why it is the first section in the Act,” he suggested. “But equally we all need to recognise – the politicians as much as the professionals – that it is also ultimately about passing power down further too. Decentralisation or devolution does not stop at the door of the town hall or the door of county hall. It is about how they then get it to flow further out to communities, individuals, and groups.”

Neill said local authorities would have to respond to the challenge, for example, of local groups bidding to take over land and buildings that matter to them. “But challenge is not a bad thing,” he argued. “A self-confident organisation needn’t be afraid.”

The minister also said local authorities would need to deliver on the government’s planning reforms, such as the introduction of neighbourhood planning. There is a great need to move away from the adversarial nature of the system as it stands, he argued.

On the question of the Act’s conduct provisions, Neill suggested that the Standards Board regime had led to “something of a national industry” and was excessively intrusive.

“What we have sought to do is to put in place is something which reflects certain minimum things,” he said. “We accepted the view expressed in the Lords that there should be a requirement to have a code and that it should have cognisance of the Nolan Principles. But on the other hand we don’t seek as government or through any external agency to impose the detail of that code upon you.”

Neill insisted that the government had listened during the passage of the Bill, which had meant it had not suffered a defeat at any stage. “We have smoothed some things, we have finessed some things and I think we have got ourselves into a better place at the end of the day,” he said.

The minister said the Act was the largest piece of legislation to have emanated from his government department in more than 20 years.

Neill also told delegates that he hoped to introduce the Local Government Finance Bill – covering issues such as retention of business rates and the use of tax increment financing – before Christmas.

• Philip McCourt, Head of Legal Services & Monitoring Officer at Milton Keynes Council, has succeeded Susan Tovey of Test Valley Borough Council as President of ACSeS. Mark Hynes, Director of Legal and Democratic Services at the London Borough of Lambeth, was elected First Vice-President.