Lawyers key to helping councils make most of freedoms contained in Localism Bill

Local government lawyers will have a key role to play in enabling councils to make the most of the freedoms offered by the Localism Bill, senior figures in the sector have predicted.

Mark Hynes, Director of Governance and Democracy at the London Borough of Lambeth, said: “The Localism Bill presents an excellent opportunity for lawyers to be at the heart of facilitating the delivery of many of the new powers, including the new power of general competence, and also advising on alternative service delivery models by social enterprise.”

But Hynes, who is also second vice-president of the Association of Council Secretaries and Solicitors, warned that with the removal of the current standards regime, the role of the monitoring officer “will become far more challenging in ensuring that the highest standards of probity in public office are maintained and public confidence sustained”.

The Bill was published on Monday and covers five principal areas: community empowerment; decentralisation and the strengthening of local democracy; reform of the planning system; social housing reform; and new powers for London.

Earlier this week Sir Christopher Kelly, chairman of the Committee on Standards in Public Life, warned that the proposed stripping back of the current structure to “virtually nothing” would mean that the only apparent way of sanctioning poor behaviour between elections would be the criminal law or appeals to the ombudsman where someone’s interests are affected by a decision.

Peter Keith-Lucas, local government expert and partner at Bevan Brittan, also pointed out that while local authorities could still adopt a non-statutory code and would have a duty to consider allegations of breach of such a code, there would be no statutory sanctions against an offending member.

“So there will no longer be a power to suspend or disqualify councillors who bully, are rude, disclose confidential information or bring their own authorities and local government generally into disrepute,” he said, adding that proposals for electoral recall, which would have allowed the removal of councillors mid-term, were not included in the Bill.

Concerns have meanwhile been raised about whether the general power of competence at the heart of the Bill will really deliver new freedoms and enhance local authorities’ ability to collaborate with other organisations.

“In practice, there was no great gap in local authority powers and it is hard to identify examples of what an authority can now do which it could not do before,” said Keith-Lucas. “But there are real gaps in the powers of other public bodies to collaborate with local authorities and the Bill contains no new powers for such other public bodies.”

Tony Child, public law partner at Beachcroft, highlighted the wording of the general power of competence, which will allow authorities to do “anything that is not specifically prohibited by law”.

He said: “That sounds radical, but of course existing legal constraints are fairly significant. Given the size of cuts to local authority budgets, local authorities need something truly radical but also user-friendly to make a real difference to their ability to balance their budgets and maintain services.” 

Child also suggested that the rights to request referendums and the introduction of directly-elected mayors could prove “expensive, time-consuming distractions from the very difficult tasks currently facing local authorities”.

OTHER REACTION TO THE LOCALISM BILL

The Local Government Information Unit

LGIU chief executive Andy Sawford said it absolutely supported the Bill’s aim of a “brave new world in which councils are free to lead their communities and citizens are free to challenge the council”. However he insisted that it was important to be realistic and acknowledge the difficulties councils face.

“Eric Pickles hails it as a revolution, but Britain is not a revolutionary nation,” Sawford said. “We will succeed more in the years ahead if local councils and citizens work in partnership – that means councils opening up the town hall, opening up the books, and being open to challenge. But it also means councils and councillors being supported in their vital role as community leaders and having the freedom to make local choices without central government straightjackets and interference.”

Sawford suggested it was a shame that for all the very welcome measures – such as the general power of competence for councils, ending ringfencing and removing inspection – councils would be left puzzled by the centralist approach of some parts of the Localism Bill.

“Why for example is there a double standard by national politicians about referendums on taxation and spending, and why is the government trying to force the elected Mayor model on to cities? Why too has the government decided that Local Economic Partnerships can only be created on the say so Whitehall officials, rather than because local people want them?”

The Royal Town Planning Institute

The RTPI said the Bill raised more questions than answers in crucial areas of planning reform. The Institute called on ministers to “act quickly and urgently”, and sit down with planners and other stakeholders to come up with solutions to make the proposals in the Bill work for communities.

Ann Skippers, President of the Institute, said: "We have waited a long time for the Bill but there is still great uncertainty about key planning reforms, the issue of financial incentives and no implementation plan, all of which are likely to have an unwanted impact in stalling much needed economic recovery because no one knows how the planning system will work. The key area of neighbourhood planning in particular remains unclear, with huge questions remaining over how communities will be supported to achieve effective plans."

The RTPI said the Bill should be revised to take account of the need for certainty and a seamless transition from the present system. The Institute will make three suggestions in particular to the Communities Secretary:

• There is a need to ensure the coordination of planning at a national level. The RTPI signalled that the coalition government had proposed introducing a National Planning Policy Framework, but there was no reference to this in the Bill. “It is essential that this document is properly coordinated with the National Policy Statements (including the Marine Policy Statement) and the National Infrastructure Plan and established as part of the statutory development plan for England”
• The duty to cooperate on local authorities “needs to involve a much firmer requirement to work together on the delivery of infrastructure and other major projects which provide for more than one local authority area”
• There needs to be greater clarity of the scope of neighbourhood plans and of the process whereby they become established as part of the development plan. “It is particularly perplexing the grant funding for Planning Aid is being ended after March 2011 when communities are going to need its services more than ever.”

The Institute said it welcomed the retention of the expertise of the Infrastructure Planning Commission and the democratisation of its decision making. “The introduction of a duty to consult on proponents of major development is a consolidation of good practice and the strengthening of the enforcement of planning decisions should enhance the reputation of the service to the public,” the RTPI added.

The Town and Country Planning Association

Kate Henderson, chief executive of the Town and Country Planning Association, said collaborative neighbourhood planning as envisaged by the Bill was an opportunity to be grasped, but warned that implementing the ideal to be a meaningful choice would require communities to have “intellectual as well as financial support".

On the abolition of the regional planning tier and new arrangements for strategic planning, she warned that the revised planning system needed to offer a strong mechanism for planning for large areas “where strategic issues are too big in scale or timeframe to be resolved within a single local authority planning area”.

She said the ‘duty to cooperate' set out in the Bill offered the potential for a strategic planning framework in large areas where collaborative strategies were needed. “However, co-operation once embarked upon will need to be monitored and mechanisms for mediation between partners will also have to be made available if necessary.”

The TCPA also made a number of recommendations in relation to the government’s flagship New Homes Bonus, saying that for it to be an effective mechanism, local authorities needed to:

• "align the incentives scheme with good forward planning
• ensure that the homes that are delivered are high quality, in sustainable places that support the range of services and facilities needed to secure sustainable communities
• view the Bonus within the context of other financial instruments, such as planning obligations and the Community Infrastructure Levy, so that funds can be pooled in an integrated manner to deliver community benefits, and
• provide genuine local engagement in planning for and delivering the homes and high quality of places needed –this should underpin the way that the Bonus operates in a plan-led system."

National Housing Federation

The National Housing Federation, which represents 1,200 not-for-profit housing associations in England, welcomed the Bill for giving local councils and communities greater scope to shape development in their area.

Federation chief executive David Orr said: “The government's announcement today that the threshold for approving community right to build schemes will be reduced to a simple majority of 51% is a great victory for common sense.

“We believe very few, if any, schemes, would have been approved under the previous threshold of 75%. Winning a simple majority of votes will give community organisations and housing associations a greater chance of getting affordable homes built for local people.”

Orr added that the government must now ensure that new neighbourhood and local plans set out “how each community will accept its fair share of new homes, including specific numbers of homes and land suitable for development”.

He called on the government to introduce immediately the proposed presumption in favour of sustainable development.

The Institute of Local Government Studies

INLOGOV said it welcomed the power shift in the Bill away from central government but insisted that much more had to be achieved in order to ensure greater community control of localities. “We also note that there remain a number of unanswered dilemmas but on the whole, the Bill is a step forward,” it said.

The Institute said the process of redressing the relationship between local communities and government was long overdue. “Successive Labour and Conservative governments have centralised power for decades resulting in local communities lacking any ability to directly influence local institutions or services,” it argued. “Government has ensured that local communities have had little control over the purse strings and at the same time councils have become increasingly subjected local government to excessive regulatory burdens instrumented by powerful auditory bodies and national legislation.”

INLOGOV said the Bill was the first indication of a shift away from this trend, with – for example – its proposals for more local control over how money is spent, a greater diversity of supply of public services and greater transparency. However, it said there were “a number of elephants in the room that government has failed to fully answer”, namely:

• Local authorities were being encouraged or subjected to the ideology of mergers and shared services which were arguably good ideas in terms of economics but went against the very concept of local control
• The move to de-ring fence funding was welcome as it would allow greater local discretion over funding priority services. “However, if Government is sincere in terms of allowing greater local autonomy in terms of funding, the balance of funding between central grants and local taxation needs to be addressed. Instead of central funding accounting for 75% to 25% local funding, this ratio should be reversed”
• The Big Society proposals could inevitably be depicted as little more than a mask for local authority spending reductions. “This means that funding community groups, the third sector and others to provide the Big Society Capital will be difficult to achieve. The big hope comes from these groups being able to provide quick and cost effective alternative solutions”
• The Bill needed to ensure that principal councils can let go of services and hand them over to the parish and town level. “Equally, local and parish councils need to build their own capacity and ensure that they are advocates for the Big Society. However, this tier of councils is very rural centric and greater thought will need to be given towards building the Big Society in urban conurbations”
• The move towards increasing the number of mayors “is journalistically and politically popular. However, government should not assume that all of the twelve cities will jump at the opportunity. Evidence in favour is patchy”
• The role of councillors had largely been ignored. “At a time of the Big Society, greater effort could be given towards the role in supporting and enhancing community influence and provision of local services.”