The power to do anything…?

While the technical scope of the general power of competence remains under debate, the political and psychological effect of the new freedoms could prove to be fundamental writes John Tradewell.

Those of us who live in local government land never seem to live in anything but interesting times, and the current times are no exception. You can take your pick of big agendas; austerity, localism, the Big Society, the dismantling of local education authorities, the end of Police authorities and many more.

As someone concerned with governance in local government, I can’t help but reflect on the apparent incongruity in the dismantling of the standards regime in local government, whilst there is clear evidence of wide scale governance failure at the heart of our democracy; parliamentary expenses fraud, phone hacking by the Fourth Estate, corruption in the Metropolitan Police. So there is plenty to keep us occupied and entertained, and there is little opportunity for us to look beyond the here and now and to see where some of this is leading us.

My reason for mentioning all this is that amongst all the many significant agendas, changes and events it would be easy for us to miss what is potentially one of the most significant changes to local government for many years. I am talking about the proposed General Power of Competence.

OK, I may be stretching the point, as the chance of missing the new power is somewhere between slim and none. In fact, I am sure that some of you may by now be fed up of the new power, and may have had to stifle a yawn at the thought of another article on this power. I readily accept that there is a plethora of articles and papers out there about what it will and will not enable us to do, and whether it really represents a major step forward in the powers available to us. So I will try and steer clear of ground that has been well covered already.

To be honest there have been very few issues in local government that have had the same amount of coverage as this power. We seem to have been waiting for so long now that “the power” has taken on almost theological status. Wise men and women (almost all of them lawyers) have debated whether a general power of competence is the same, better or worse than a power of general competence. So the power does not come unheralded.

And when we look at the detail of what is on offer it would be easy to look at the thirteen words used to create the new power and to ask “Is that it?”. “A local authority has power to do anything that individuals generally may do”. What on earth does that mean? Why would anyone want to confuse local authorities with private individuals? What does this add to the powers already available to us? I suspect that I am not the only old-timer out there who has looked at the new power and muttered once again about the decline in the standard of parliamentary draftsmanship.

But, and it is a really important but, if we can put our criticism and cynicism to one side for a moment I am starting to believe that the new power could end up being the most important thirteen words ever for local government in this country.

This isn’t because they actually give us any great new powers, because I am not sure they add a great deal to the wellbeing powers in the 2000 Act. Nor is it because they will change the default setting from “Can we do this?” to “We can do this”. I think they will do this, and it is a significant change, but it is not exactly earth shattering. The importance of these words is actually much more fundamental. The words themselves speak of a local government with real power and capacity. “A local authority has power to do anything..” Those are the words that everyone will hear and understand.

Lawyers may read on into the detail but not many others will go further than these words. And what these words give us is something very different to all the legislation that has gone before. They give us a new definition of the nature of a local authority. A local authority with the competence, capacity and capability to do anything. This is a really powerful vision of local government and is one that we in local government need to champion, cherish and embrace.

Let’s reflect further on the wording of the new power. “A local authority has power to do anything…” – why are these words so important? In my view their import comes from a number of key messages that underlie these words that have the potential to fundamentally alter how local government sees itself.

1. It redefines what it is to be a local authority. We will not longer be mere creatures of statute limited by the powers given to us by parliament (even if this may still technically be true). We will no longer have to start by looking at what Parliament has tasked us with doing, We will become bodies capable of independent thought, trusted by parliament with determining our own independent agendas, and able to do whatever we think is important to meet the needs and wants of the people and communities we serve. Yes, Parliament will still be able to impose restrictions on how we act, but once they have given us the power to do anything, can they really put the genie back in the bottle?

2. As well as freeing us from parliament, the power will give us independence from government. By giving us responsibility to set our own agenda we will cease to simply be the delivery arm of central government. This will be further reinforced as we continue to move towards being funded from local revenue rather than from central government grant. Yes, government will still be powerful partners who can exercise a great deal of influence over us, but our role in this relationship will be as fully autonomous organisations determining ourselves what we should do for our area rather than being driven by a centralist agenda.

3. Perhaps most importantly it will change how we think. We are being told by parliament to trust our own judgement. It is a recognition by government of what we in local government have always believed; we, not Westminster, know what’s in the best interests of our people and our communities. Central government is effectively saying it is ok for you to disagree with us because you know best what is in the interest of your area. Isn’t this what the Secretary of State has been saying - don’t ask us for further guidance you are not going to get any? We should not see this as an abdication of responsibility but an endorsement by the Secretary of State that we, and not him, know what’s best. We should see it as a challenge and opportunity. A challenge to think for ourselves, and an opportunity to do things the way we want to do them.

I realise that I may be taking an extremely positive approach to the new power. I fully recognise that the detailed wording of the power, and of the Localism Act generally, are not entirely consistent with my interpretation of what it will mean for local government. Some have even said that the Localism Act empowers the Secretary of State rather more than it empowers local authorities.

However, the new power was never going to transform local government overnight. I suspect that most Leaders, Cabinet Members and Chief Executives are still going to be more worried about the very serious problems of today than any bright new vision of tomorrow. But at some point the age of austerity will pass. The words “A local authority has power to do anything..” will then start to have real value, and the seed that has been planted by Parliament will start to bear fruit. And from this small beginning I am hopeful that we will then start to see emerge a new model of independent, powerful and self-directed local government.

John Tradewell is Director of Law and Democracy at Staffordshire County Council

This article first appeared in 'A Passion for Leadership & Going Beyond Austerity, published in November 2011 by the Association of Council Secretaries and Solicitors (ACSeS).

To order or download a copy from the ACSeS website, please click here.