Constitutional issues, well being, powers and ultra vires

CONSTITUTIONAL ISSUES

Recent decades have seen important and fundamental change in the constitutional arrangements for local government both in relation to the structure of local government and its internal organisation.

Issues relating to the basic structure of authorities, whether unitary or two tier, abolition, amalgamation, etc raise not only legal issues and challenges to the decision to reform the structure, but also a variety of more mundane but important issues relating to transfer of property and assets. The same applies to the creation and administration of parish and community councils. Members have advised extensively in relation to such issues.

The attempt to modernise local government by the imposition of new executive models, elected mayors and enhanced scrutiny has also thrown up opportunities and challenges. Members have been involved in such issues in various ways - in drafting and auditing constitutions, advising on the operation of all models including the only mayor/manager authority, resolving jurisdictional issues between the executive and council, and advising on decision making processes. Members combine their specific legal expertise with a sensitive approach to the local political situation.

POWERS AND VIRES

With public bodies being subject to increasing scrutiny, at the same time as new demands are being made upon them, it is essential not only that adequate powers are available to the bodies but also that they stay within the powers conferred upon them. Members of the team are heavily involved in advising on both aspects.

It had been a longstanding argument that local authorities required a power of general competence in order to support the attempts to be as innovative and responsive to local needs as elected members wished to be. Some members of the team were heavily involved in the processes leading up to the enactment of the well-being power in the Local Government Act 2000, and the team have thereafter been providing expert advice in relation to well-being powers, s.111 of the 1972 Act, and other powers to authorities, financial institutions, other public bodies, pressure groups, and individuals and companies.  

While the well-being power was designed to counter some of the more restrictive judicial interpretations of local government powers, it has in turn been subject to judicial interpretation which has emphasised the need for clear advice on the use of current powers. The team can provide this and assist local authorities in utilising their powers as effectively as possible, across a wide range of proposed activities, whether dealing with emergencies, undertaking significant economic development projects, working with public and private sector partners, or undertaking community initiatives.

With the election of a new Government, it is expected that the manifesto commitment to a power of general competence will be enacted. The team will be involved in this process and will continue to be provide expert assistance on the interpretation of the new power, and its operation within the application of the wider principles of judicial review.

To view a list of our members who specialise in this area, please click on the drop down menu to the left.