What do we have to do?

Ian Hunt considers the thorny issue of essential functions and statutory powers in straitened times.

What do we have to do? An oft repeated question over many years by Members and officers alike when faced with the challenges of austerity, and for several authorities recently this has been thrown into starker relief when looking at the implications of a s114 report.

Often the question is phrased as "what are our statutory functions?" As creatures of statute, Local Authorities must find a legal power to underpin everything they do, therefore anything is arguably a “statutory function”. But that is not really the intention of the question. Not all functions are created equal; the distinction between duties and powers is drummed into any lawyer looking at governance or indeed how we use our powers.

In 2011 the coalition government decided to undertake a comprehensive review of the statutory duties imposed on local government; hopeful that they could slash red tape. Their “comprehensive list” had missed over 200 existing duties, and most responses called for their retention. They ended up with some 1300 duties, and still acknowledged it was not comprehensive. Since then, legislation has marched on with new duties added, but there is no central body keeping score.  

In looking at duties the distinction is usually drawn between “may” and “must” or their equivalents, and our questioners are usually looking to the “musts”.

Permissive powers

The permissive and open powers are usually the easiest to reach for when a new project is on the cards. Things like the power of general competence from the Localism Act are the most widely drawn and flexible, but discretionary enabling powers are nothing new.

Earlier examples abound, but to give just two s120A of the Local Government Act 1972 provides that authorities "may" acquire land by agreement for any of their functions. Equally (and a relic of changing times) the power to provide provision for the sale of alcohol or tobacco in leisure centres in s 63 Local Government (Miscellaneous Provisions) Act 1976. Neither of these any obligation just a power.

We could exclude any of these permissions from our assessment of what we must do and focus only on the essential, must dos. But this is not without its own set of challenges in defining what we must do.

Duties

A simple “must”; and one close to lawyers’ hearts, is the duty in s5 of the Local Government and Housing Act 1989 to appoint one of the Councils Officers to be the Monitoring Officer. Of course, that comes with several additional questions relating to which one, is there additional remuneration etc but the basic decision is clear and unambiguous as to what the authority needs to do.

After the limited “simple” examples, it gets much more subtle.

When it comes to s7 of the Public Libraries and Museums Act 1964 it provides:

“7 General duty of library authorities.

It shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof…”

We have the useful word “shall” appearing nice and early to confirm that this is an unambiguous duty which the relevant authorities must perform so we can rest easily after that… but the real issue is what is a comprehensive and efficient service.

As a bibliophile, I heartily agree with the idea that I should have a well-stocked reference library if not at the end of my road, then certainly no more than a 5-minute walk from my house. I also expect that in “town” and certainly no more than a 5-minute walk from the local bus station I should have a library of roughly the scope and reach of the British library and that this service standard should be afforded to every town in this fair isle. But when I think about how often I use a library these days to research anything, I reflect that the internet is now so ubiquitous and effective that I have not needed to visit a library for over a decade so in reality I can’t make too strong an argument.

Another universal service under s45 of the Environmental Protection Act 1990, provides:

“45 Collection of controlled waste.

(1) It shall be the duty of each waste collection authority—

(a) to arrange for the collection of household waste in its area…”

Clearly it is essential that the relevant authority needs to come and collect my household wase. We are therefore done and dusted. But this comes with a range of decisions, and options as to how it can be done. As a user of the service, I have at times in my life barely needed to put the bin out once a month, when I lived alone and mostly ate from packets. Through to when a new baby was in the house and there was nearly a bin full of near hazardous waste every week.

If these examples seem to give rise to clear political policy objectives a more officer centric example comes in the Children Act 1989:

“47 Local authority’s duty to investigate.

(1) Where a local authority— …

(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.”

In this case the duty is to make the enquiries and the assessment. Other sections impose a duty to act where there is need. The duty is clear, but this only takes us so far in determining the “how” of delivering a service. Once again there is discretion and subtlety where other factors come into play. Most children fortunately never need this service, but for those who do ensuring it is well resourced tenacious and caring seems to be the least that society can achieve.  

Summary

I have deliberately focused on the statutory underpinning of some duties; layered on top of that is a wide range of statutory and non-statutory guidance which aims to define or clarify how the duties need to be performed.

The challenge for councils is to define what service standard they want to achieve and whether they have the resources to achieve it.

It is not to say that there isn’t merit in the process of looking to statutory duties in straightened times, but however comprehensive a list that is presented. Not every authority needs to worry equally about every duty – after all not every authority needs to actively consider the needs of costal access given their geography.

A key role for Members is determining the framework of how an authority is going to look at discharging its functions, what are the resources and priorities it wants to have and where resource needs to go. Key within this is understanding the needs of the community and the challenges that face them. Budgets play a role as well in balancing the ability to fulfil every wish with the range of activities which are needed.

When faced with the question again, we can say with certainty. We have many duties and powers, there are even lists (admittedly incomplete), but whenever reality hits there is always a level of discretion as to how that duty is discharged. So, what approach to service do we want to achieve.

A local government solicitor and monitoring officer, Ian Hunt runs IJH Training which offers training and development programmes for elected members and officers.