Local government legislation "in urgent need of rationalisation", says ACSeS

Local government legislation is in urgent need of rationalisation and consolidation, the Association of Council Secretaries and Solicitors (ACSeS) has argued in a submission to the government’s review of statutory duties.

The submission, which was prepared by ACSeS Policy Officer Tony Kilner and Wychavon District Council Head of Legal and ACSeS Solicitor Ian Marshall, added: “The repeal of a substantial quantity of duties that no longer require the force of law behind them would be a starting point."

ACSeS also called on the Department for Communities and Local Government to go on to identify the legislation that might be repealed as being redundant once the general power of competence contained in the Localism Bill is in force.

The ACSeS submission set out a non-exhaustive list of categories of reasons why duties have been imposed on local government and went on to indicate the association’s views on each group.

To provide a service having national uniformity (e.g. to operate a licensing regime)

“Unless the provision of the service itself is to be reviewed, it seems unlikely that any of these duties could be repealed without weakening the national framework for the service.”

To provide non essential services (e.g. to provide allotments)

“It seems to be unnecessary that the obligation to provide non essential services such as allotments should continue to be a statutory duty. They should be discretionary, and if there is no need for nationally determined requirements in providing the service, the enabling power could be the power of general competence.”

To reflect a national need that justifies the state’s social intervention (e.g. duty to re-house, duty to provide facilities for certain persons)

“If these duties continue to appear to meet a national strategic need, the removal of the duty is likely to be counter productive to meeting that need.”

To apply specific requirements to a service (e.g. to provide specific information to someone, to follow a prescribed process, to use a prescribed form, to follow specific rules, to follow a specific procedure consequent upon a specific action)

“It would seem that many duties in this category of specific procedural and process duties could be repealed, as being now contained within human rights obligations and good governance arrangements. These duties can be replaced effectively by guidance (which can more readily be kept up to date with changing emphasis and judicial ruling) or individual local authority adopted processes and procedures that are informed by recognised good practice.”

To keep specific registers and documents (e.g. planning registers, planning documents, building registers)

“The registers are generally a key element of the service and their maintenance is a matter of public record that often has relevance to property ownership and property transfer. Repeal of this category of duties is likely to have unacceptable consequences.”

To apply broad procedural requirements (e.g. to consult, to publish information, to review, to make enquiries. An example is the duty to consult on non domestic rates)

“Many of these broad duties have become part of the everyday process of good governance and repeal of such duties is not likely to effect the operation of the service.”

To review something or keep it under review (e.g. to make enquiries of homeless, to determine whether to make conservation areas)

“This broad type of duty is unnecessary as being a matter of operational good sense.”

To submit information to the Secretary of State

“This duty should be limited to where the service provided is part of a nationally provided service and the information relates only to a national strategy.”

To have a strategy

“These duties evolved from the pump-priming emphasis for all services to be subject to a plan or strategy that identified direction and objectives. The pump-priming has run its course and there is clear recognition of the merits of working to agreed plans and strategies. These duties can be repealed or perhaps consolidated in a single overarching duty for local government to produce strategies for services that reflect any national service strategies, and to work to them.”

To take enforcement action (e.g. planning, building control)

“Any enforcement is by its nature discretionary and these broad duties seem to be unnecessary. Current enforcement practice is more proportionate and selective and subject to strategic considerations.”

To appoint officers

“A duty to appoint officers seems to be unnecessary, other than officers having specific statutory responsibilities.”

To meet open governance needs (e.g. duties to publish financial information)

“This category of duty is superseded by open governance initiatives, FOI and the availability of electronic information facilities. Duties to publish specific data should be repealed.”

To meet specific financial standards

“A mass of financial requirements embodied in duties and regulations could be replaced by practice manuals.”

To effect routine financial operations (e.g. to make financial adjustment on business rates)

“These financial operations have become a matter of procedural routine, such that the duty has become irrelevant and should be repealed. It is unnecessary that each financial process must be a requirement of a statutory duty or regulation.”

To cooperate with other public bodies (e.g. with relevant housing bodies)

“This sort of duty might be repealed as being part of good public governance. Alternatively specific duties could be replaced by a broad general duty.”

Philip Hoult