Too many generals?

With the Localism Bill, central government has acknowledged that local government is generally competent. At last, says John Emms.

So – the scholarly debate over whether a general power of competence is somehow different from a power of general competence is, for the time being at least, over. The Localism Bill is with us and makes it clear that even had they called it the power of competent generals, it would have made no difference, since the phrase appears only in a section heading. Of course, that may become relevant should the body of the legislation prove unclear, but I think we can trust our legislators to ensure that doesn’t happen. Can’t we?

But already the lawyers are poring over it. I’ve seen commentary by a whole bunch of my friends in the private sector, all learned and erudite, but of necessity preliminary. I hesitate to add my humble efforts, but there are a few issues which seem not yet to have been covered.

It appears that councils are to be given the power to do anything an individual generally may do. Really? I’d like to see that. I mean, what sort of things can an individual do? And what would be beyond an individual? Just taking utterly random examples which occur to me, an individual can learn to play the violin. Hence, in due course, a local authority will by statute be able to do so too. Or it will be enabled to win the Olympic 100 metres sprint final, which will be an interesting spectacle in 2012. I make Newham the favourite, as the home entry, but I can’t believe that go-ahead Gateshead won’t be in there fighting, too.

However, note the limitation. Only individual activities. So, although maybe playing a violin or other instrument, you won’t find a local authority turning itself into an orchestra. Which will no doubt be a relief to the Liverpool Philharmonic and the City of Birmingham Symphony Orchestra who might have been concerned about local public sector competition. Nor will an authority be able to win the Olympic relay final (though the Local Government Association might do so, assuming Eric Pickles allows it to pay its chief executive enough to attract someone capable of filling in the entry form).

But now I turn to absurdities hidden within the wording. For instance, although the Bill implies that this will be possible, I can’t imagine my own council (I mean, of course, merely the one in whose area I live) being able to fit itself into a cubicle in the gents’ toilets at the Watford Gap services. I know an individual can do it, as I’ve done it myself. But I can’t see even statutory authority getting 69 ladies and gents of varying mass and dimensions in there, unless the power provided is to be of the miraculous sort.

On the other hand, it will be possible to do things “in any way whatever”. So, I suppose that could include liquidising itself and placing the results under massive pressure. But are we to assume that “any way whatever” is limited, by implication, to any way which might be employed by the aforementioned individual? If so, that option can probably be discounted.

I’m sure with a little thought you can come up with many other such worries.

Next – what about that little word “generally”. Anything an individual generally may do. Does that mean to the exclusion of anything an individual may do particularly? And if so, what exactly does that distinction mean? What is included and what excluded? Or does it mean generally in the sense of most frequently? As in “I generally sleep at home, but occasionally stay elsewhere”. So will a local authority be able to do only those things which an individual would do more often than any alternatives? If so, what are they? (By the way, I make no comment about the inclusion of a power, like an individual, to go to sleep. I have been in many a council meeting where the authority has been exercising that power, apparently, it now occurs to me, without any statutory authority at all.) I am merely asking these questions. I leave it to others, better qualified and better remunerated than I, to come up with answers.

One further point – an individual means an individual “with full capacity”, which limits things a bit. No power to fall in love with a lamp-post, then, or to be best mates with a wall.

But what exactly is a local authority? In most cases it always used to be just The Council. But what about executive arrangements , elected mayors and the like? Perhaps still the council in the former and the mayor and council in the latter (I haven’t looked it up). But think of the pre-1974 days when up here in Yorkshire they used to doff their caps to “t’Corporation”. Well, a few of them did. Maybe.  T’Corporation was, in boroughs, the mayor, aldermen and burgesses (lord mayor, aldermen and citizens in cities). No mention of the council at all, although its members were included in that all-encompassing designation. Section something-or-other of the Local Government Act 1933 (and, I assume, of the 1929 and 1888 Acts, too) did specify that corporations could act as local authorities only through the council. But that’s not the same as the council being the local authority. So, thank heaven for the 1974 Act for saving us from having to shove 406,000 inhabitants of Kirklees into that cubicle, as well. Including me and Mrs. E.

The 1933 Act provision was, I suppose, a sort of statutory form of delegation. As is the allocation of executive functions. Talking of which, I wonder whether anyone would like to comment on whether the scenarios which I suggest above, would be executive or council functions. But also, consider this. In the old days most council functions were delegated to committees. And indeed, for unclear reasons, that possibility is to be re-opened, albeit set about with conditions, restrictions, ifs, buts and maybes. But is that likely to be practicable in the new era? Remember Henry Ford’s comment when told that Lindbergh had flown the Atlantic solo. Was it Henry Ford?  Maybe it was Sam Goldwyn. Or someone else entirely. I haven’t looked that up either. Researching before writing is such a pain, don’t you think? Anyway, the speaker matters not. Whoever it was said, “By himself, man can do anything. When a committee flies the Atlantic, let me know.”

So – how can a power to act like an individual be delegated to a body inherently incapable of doing so? And does that quotation also cover cabinets? If so, I seem to have painted myself into the corner of having to approve of elected “mayors”, which I refuse to do.

But here’s a thought and a way to get round all these issues. One thing seems clear. Whatever is to be done, it will be possible to do it through a company. Indeed, if it’s to be a commercial activity that will be a requirement. And hands up those who know what section 31 (1) of the Companies Act 2006 says. This one I have looked up. Not to write this, but for a more worthy purpose – I do do things other than sit here writing silly articles, you know. Yes? You at the back? Correct. “Unless a company’s articles specifically restrict the objects of the company, its objects are unrestricted.” So, here’s some free advice (for which I take no responsibility and to be sure I don’t receive a dawn visit from SRA enforcers, please take notice that I am retired, uncertificated, uninsured and under the influence of a rather nice product of aged vines in the Puglia region of Italy, which I can thoroughly recommend).

A local authority need only set up a company with unrestricted objects and then it can do whatever the hell it likes.

John Emms was Solicitor to Kirklees Metropolitan Council between 1994 and 2007.