Scottish Government Consultation - Local Authority General Power of Competence
North Ayrshire Council · 18 March 2025
Back to Cabinet — 18 March 2025 and its agenda
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NORTH AYRSHIRE COUNCIL 18 March 2025 Cabinet Title: Scottish Government Consultation: Local Authority General Power of Competence Purpose: To advise Cabinet of the Scottish Government Consultation on a possible Local Authority General Power of Competence and seek Cabinet approval for the submission of the proposed Recommendation: That Cabinet: a) Notes the ongoing consultation b) Grants authority to the Head of Service (Democratic Services) to finalise and submit the Council’s response, following further engagement with COSLA, in consultation with the Chief Executive and Leader in accordance with the principles set out in this report; and c) Notes that responses to the consultation are also being submitted by other local authorities, COSLA and the Society of Local Authority Lawyers & Administrators in Scotland (SOLAR) and d) Notes that further updates will be brought to Cabinet in the event that the Scottish Government decides to introduce legislative proposals relating to local authority powers. 1. Executive Summary 1.1 On 6 January 2025 Scottish Government commenced a public consultation on the need to legislate for a possible local authority General Power of Competence. The consultation seeks to establish what functions, beyond those already conferred by statute, local authorities in Scotland may wish to pursue and whether new legislation or amendments to existing legislation would be required to deliver those additional functions. 1.2 This report seeks approval for submitting a response in terms similar to the draft consultation response provided at Appendix One.
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2. Background 2.1 In December 2017 the Scottish Government and COSLA jointly launched a Review of Local Governance. The Review considered how powers, responsibilities and resources are shared across national and local spheres of government, and with communities. The review was much wider than the scope of the current consultation and as part of the response submitted at that time, the Council took the position that a Power of General Competence should replace the Power to Advance Wellbeing. The legislation to reform local government has not been advanced. 2.2 To consider the possible requirement to replace the Power to Advance Wellbeing with a Power of General Competence and its impacts, the Scottish Government commenced a consultation on 6 January 2025. The consultation closes on 28 March 2025 with the feedback used to ensure that legislation contains the right balance of flexibility and control to mitigate risks arising from greater statutory freedoms. The consultation process is ongoing with round table discussions still to take place to assist with the formation of views. 2.3 Section 20 of The Local Government in Scotland Act 2003 gives a local authority the power to “do anything which it considers is likely to promote or improve the well-being of its area and/or persons within that area”. It includes the power to incur expenditure, give financial assistance to any person, enter into arrangements or agreements with any person, co-operate with, or facilitate or co-ordinate the activities of, any person, exercise on behalf of any person any functions of that person, and provide staff, goods, materials, facilities, services or property to any person. 2.4 The 2003 Act states that the power cannot be used to do something that the local authority is explicitly prohibited or prevented from doing under another enactment. It also cannot be used to unreasonably duplicate the functions of another person (unless the person concerned consents). The general power for a local authority to ‘do anything to advance well-being' is restricted to its local area and/or persons living within that area. 2.5 Section 22 of the 2003 Act expressly provides that the power under section 20 does not enable a local authority to do anything for the purposes of raising money, whether by levying or imposing any form of tax or charge, by borrowing or otherwise. 2.6 A General Power of Competence is commonly defined as a statutory power to do “anything that individuals may generally do”. The Localism Act 2011 introduced a General Power of Competence in England, Wales and Northern Ireland. The power enables councils in those jurisdictions to do things: a) An individual may generally do; b) Anywhere in the UK or elsewhere; c) For a commercial purpose or otherwise, for a charge or without a charge; and d) Without the need to demonstrate that it will benefit the authority, its area or persons resident or present in its area. Limits apply where a local authority provides a service for a non-commercial purpose. The general power confers power to charge a person for providing a service to that person only if:
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a) The service is not one that a statutory provision requires the authority to provide to the person; b) The person has agreed to its being provided; and c) The authority does not have an existing power to charge for providing the service. 2.7 A General Power of Competence could empower local authorities to set up companies, engage in certain trading activities or run community services or enterprises. In comparison with the Power to Advance Wellbeing, a Power of General Competence would widen the scope of local authority powers so long as there was no law precluding them from doing so. There would be no requirement to consider whether the activity advances the well-being of the local authority’s area/persons within the local authority’s area. Were such powers to be enabled, it would be for each Council to set its parameters whilst still taking into account the duty to provide best value. In the event that the general power of competence is brought forward, it is presently the view of officers that the Council would still focus on local priorities rather than engaging in activity outwith the local authority boundary. It is also the view of officers that should the power be granted, it would not be used in a manner to distort the local economy. 2.8 The Council’s position in 2018 was that the replacement of the Power to Advance Wellbeing with a Power of General Competence was necessary for several reasons. It was argued that the Power to Advance Wellbeing is too restrictive to be used as a ‘power of first resort’ and does not permit the generation or saving of money to fund other services. It was argued that a Power of General Competence would assist local authorities to work across boundaries and be innovative. The response included comment that tax raising powers should be granted to local authorities. 2.9 The power granted to authorities in England Wales and Northern Ireland does not permit local authorities to do anything that is specifically prohibited in legislation, to raise taxes or to alter the political management of the authority. Commercial activities may be undertaken but this must be done through a company. Authorities cannot trade in services that they have a statutory requirement to provide. A broad power is given to the Secretary of State to remove or change any statutory provisions that prevent or restrict the use of the general power and to restrict what local authorities can do under the general power. The power in these jurisdictions does not allow local authorities to raise tax in order to expand authorities’ power or to make by-laws. In terms of the Council’s response in 2018, it was suggested that certain restrictions applying to councils in England, Wales and Northern Ireland should not apply to Scottish councils including: a) the requirement to use companies where engaging in income generation. b) that charges for provision of a discretionary service should be restricted to a cost recovery basis. (The council recommended that charges could be used for revenue generation); c) that local tax raising powers should be included as part of a Power of General Competence; and d) that there should be a bar on the creation of by-laws or enforcement activity. (We requested that no bar should apply). 2.10 In relation to the current consultation, the Scottish Government has advised that the Scottish Parliament does not have legislative competence to confer a general power
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which includes broad local taxation powers to Local Government. Any revenue-raising powers for Local Government would therefore be limited to new taxes which have a strong local character and do not replicate national taxes. Accordingly, any inclusion of tax raising powers in a General Power of Competence would be significantly limited. Since 2018 we have seen the introduction of legislation which has enabled Councils to consider raising local taxes e.g. the council tax premium on second homes and a tourist tax. The introduction of a General Power of Competence which included a general power to create and levy new taxes would require amendment to the Scotland Act 1998, over which the UK Parliament retains legislative power. 2.11 The consultation also presents an opportunity to consider additional amendments and reform to related legislation on local authority competence. In particular, changes to the Local Government in Scotland Act 2003 and Local Authorities (Goods and Services) Act 1970 are proposed. Additionally, the consultation seeks responses on extending the powers contained in the Islands (Scotland) Act 2018 to Local Authorities across Scotland. Comment on these matters is included in the draft response at Appendix 1. 2.12 The draft response is generally supportive of a relaxation of restrictions in the powers of local authorities and that those should be widened to permit wider flexibility to deliver positive outcomes for our residents and communities and transformation. 2.13 It is understood that the Scottish Government is particularly interested in responses which provide examples of what a local authority would use expanded powers to achieve. Discussion is ongoing in that regard. 2.14 It is understood that other Local Authorities, COSLA and the Society of Local Authority Lawyers & Administrators in Scotland (SOLAR) are also expected to respond to the Consultation. Officers have attended round-table discussions with the Scottish Government and other local authorities and will continue to do so. 2.15 In the event that the Scottish Government determines to bring forward legislation to review the powers of local government, draft legislation will be introduced and a consultation period will follow and in relation to which further updates would be brought to Cabinet. 3. Proposals 3.1 That cabinet: a) Notes the ongoing consultation; b) Grants authority to the Head of Service (Democratic Services) to finalise and submit the Council’s response in accordance with the principles set out in this report following further engagement with COSLA, in consultation with the Chief Executive and Leader; c) Notes that responses to the consultation are also being submitted by other local authorities, COSLA and SOLAR and
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d) Notes that further updates will be brought to Cabinet in the event that the Scottish Government decides to introduce legislative proposals relating to local authority powers. 4. Implications/Socio-economic Duty Financial 4.1 There are no financial implications resulting directly from submission of the consultation response, however, there may be financial implications if a General Power of Competence is created for local government. Human Resources 4.2 None. Legal 4.3 It is expected that the Review will lead to legislation in the next term of Parliament. The proposed consultation response provided at Appendix One recommends removal of legal obstacles to effective local governance and it is hoped that future legislation can adopt these. However, there are no direct legal implications of the response itself. Equality/Socio-economic 4.4 There are no equality/socio-economic implications resulting directly from submission of the consultation response. However, it is unclear if such implications could arise from the creation of a General Power of Competence for local government. The Scottish Government would require to undertake the necessary impact assessments in relation to the introduction of any draft legislation. Climate Change and Carbon 4.5 None. Key Priorities 4.6 None. Community Wealth Building 4.7 None. 5. Consultation 5.1 The proposed response has been informed through consultation with Officers of the Council, COSLA, Scottish Government Officers and members of SOLAR.
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Aileen Craig Head of Service, Democratic Services For further information please contact Raymond Lynch, Senior Manager (Legal Services) , on raymondlynch@north-ayrshire.gov.uk or Callum Leslie, Solicitor (Legal Services), on callumleslie@north-ayrshire.gov.uk. Background Papers 0
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1 Local Authority General Power of Competence Respondent Information Form Please Note this form must be completed and returned with your response. To find out how we handle your personal data, please see our privacy policy: https://www.gov.scot/privacy/ Are you responding as an individual or an organisation? Individual Organisation Full name or organisation’s name Phone number Address Postcode Email Address The Scottish Government would like your permission to publish your consultation response. Please indicate your publishing preference: Publish response with name Publish response only (without name) Do not publish response We will share your response internally with other Scottish Government policy teams who may be addressing the issues you discuss. They may wish to contact you again in the future, but we require your permission to do so. Are you content for Scottish Government to contact you again in relation to this consultation exercise? Yes No The North Ayrshire Council Cunninghame House, Friar’s Croft, Irvine KA12 8EE Information for organisations: The option 'Publish response only (without name)’ is available for individual respondents only. If this option is selected, the organisation name will still be published. If you choose the option 'Do not publish response', your organisation name may still be listed as having responded to the consultation in, for example, the analysis report.
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2 Questionnaire Power to Advance Wellbeing Question 1 What are the perceived barriers and risks to fully exploring the scope of the ‘Power to Advance Wellbeing’ contained in section 20 of the Local Government in Scotland Act 2003? Note: Section 20 of the Local Government in Scotland Act 2003 provides a broad power for a local authority to “do anything which it considers is likely to promote or improve the well-being of its area and/or persons within that area”. Question 2 What are the limitations of the Power to Advance Wellbeing and how do these limitations restrict the aspirations of local authorities, for example, to explore new and innovative ways of delivering public services? Despite the Power to Advance Wellbeing intending to broaden the powers of local authorities, there is dubiety around the extent upon which it can safely be relied upon. This position has been accentuated through the Courts interpreting the power restrictively, for example, Portobello Park Action Group Association v The City of Edinburgh Council (2013) S.C. 184 which is noted in the consultation document. The result is that the Power to Advance Wellbeing has been underused, due to uncertainty around the scope of the Power and as a result, local authorities exercising a cautious approach.
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3 Question 3 Would the removal of the restriction imposed by paragraph 7 of section 22 of the Local Government in Scotland Act 2003 (see note below) facilitate the aspirations of local authorities to increase local revenue generating powers. Please provide examples. Note: Paragraph 7 of section 22 of the Local Government in Scotland Act 2003 says expressly that the power under section 20 of the Act does not enable a local authority to do anything for the purposes of raising money, whether by levying or imposing any form of tax or charge, by borrowing or otherwise. Only the specific power in the 1970 Act can be relied upon to generate revenue through the supply of goods and services. Question 4 The Power to advance wellbeing is not sufficiently clear to provide confidence of approach. There is no power for Councils to generate money to fund other services, something which is increasingly an issue in a financial climate which expects local authorities to raise income and act to transform practice through innovative solutions. Additionally, the restrictions in the Local Authorities (Goods and Services) Act 1970 make it difficult to use the Power effectively. In particular, the 1970 Act gives Local Authorities powers in relation to any “relevant trading operation carried on by the Authority” to enter into Agreements for the supply of goods or services. However, an Authority cannot enter into such a Trading Agreement if the income from that operation would exceed the statutory limit. The current statutory limit for the amount of income that can be generated from commercial services is nil. Unless and until the Scottish Parliament varies that statutory limit for trading activities, it will not be possible to rely on the provisions of this legislation to justify the Council trading to generate income to fund services. The removal of the restriction imposed by paragraph 7 of section 22 of the Local Government in Scotland Act 2003 may assist local authorities to increase local revenue generating powers. However, the judicial interpretation of the Power to Advance Wellbeing is, as noted above, restrictive. Local authorities are reluctant to use the power other than as a last resort. The result is that either the power will continue to be used sparingly by local authorities to minimise risk, or that local authorities may accept greater risk in order to generate revenue. The removal of the restriction imposed by s22(7) would therefore not meaningfully reduce the risk of using the Power to Advance Wellbeing. The Council operated a Municipalisation Working Group to consider opportunities for revenue raising. Given the challenges posed by the existing legislation and associated risks, very little was developed other than was permitted by statute.
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4 Are there any further existing legislative barriers to the delivery of public services and to a broader range of activity that local authorities would wish to undertake? Question 5 Expansion of wellbeing powers Would a broadening of the scope and meaning of ‘wellbeing’ contained in the 2003 Act (see note below) provide an effective alternative to a General Power of Competence? Note: The Local Government in Scotland Act 2003 contains a provision that allows the Scottish Ministers to widen the definition of wellbeing and therefore the scope of the power of local authorities to advance wellbeing, under section 20 of the 2003 Act. Given the continued reluctance in England, Wales and Northern Ireland to rely on the general power due to concerns over legal challenge, it may be more effective to either broaden the scope and meaning of ‘wellbeing’ within the 2003 Act or to create As noted above, the restrictions in the Local Authorities (Goods and Services) Act 1970 make it difficult to use the Power to Advance Wellbeing effectively. In particular, the 1970 Act gives Local Authorities powers in relation to any “relevant trading operation carried on by the Authority” to enter into Agreements for the supply of goods or services. However, an Authority cannot enter into such a Trading Agreement if the income from that operation would exceed the statutory limit. The current statutory limit for the amount of commercial services income that can be generated is nil. Unless and until the Scottish Parliament varies the statutory limit for trading activities, it will not be possible to rely on the provisions of this legislation to justify the Council trading to generate income to fund services. A broadening of the scope and meaning of ‘wellbeing’ may assist local authorities in discharging their functions in some respects. However, a broader Power to Advance Wellbeing would still place a positive duty on local authorities to assess whether a decision will promote or improve the wellbeing of its area or persons within its area which would be open to interpretation and challenge, as opposed to a Power of General Competence where an authority will only have to consider whether a decision taken could be taken by an individual and whether that decision falls under any specific statutory exceptions. A Power of General Competence would therefore offer greater legal certainty for authorities to use as a ‘power of first resort’, whereas a broadening of the Power of Wellbeing may result in the power continuing to be underused.
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5 further specific statutory powers within the 2003 Act to explicitly permit the greater freedoms local authorities wish to have.
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6 Question 6 Expansion of wellbeing powers Would the provision of specific greater powers within the 2003 Act (see note below) provide an effective alternative to a General Power of Competence? If so, please provide examples of such specific powers and how they may be used. Note: The Local Government in Scotland Act 2003 contains a provision that allows the Scottish Ministers to widen the definition of wellbeing and therefore the scope of the power of local authorities to advance wellbeing, under section 20 of the 2003 Act. Given the continued reluctance in England, Wales and Northern Ireland to rely on the general power due to concerns over legal challenge, it may be more effective to either broaden the scope and meaning of ‘wellbeing’ within the 2003 Act or to create further specific statutory powers within the 2003 Act to explicitly permit the greater freedoms local authorities wish to have. The provision of specific greater powers within the 2003 Act may assist local authorities in discharging their functions in some respects. However, more specific powers may limit the ability of authorities to create innovative solutions. If a power is not specifically listed in the legislation, authorities may still be reluctant to take decisions that are not explicitly permitted. In contrast, a Power of General Competence, which is unambiguously set out, will allow an authority to consider whether a decision could be taken by an individual and whether that decision falls under any specific statutory exceptions. A Power of General Competence, subject to drafting may therefore offer greater legal certainty for authorities to use as a ‘power of first resort’, whereas more specific powers in the Power of Wellbeing may result in the power continuing to be underused, or only used for specific situations. If an expansion of the Power of Wellbeing was to be proposed, statutory guidance should accompany any legislation to provide further guidance to local authorities.
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7 Duplication of Functions Question 7 Does the provision within the 2003 Act, which states that the Power to Advance Wellbeing cannot be used to unreasonably duplicate the functions of another person, restrict a local authority’s pursuit of service transformation, other income generating activity or any other activity? Please provide examples. Note: Paragraph 4 of section 22 of the Local Government in Scotland Act 2003 prevents local authorities from unreasonably duplicating the functions of other bodies or people. The subsection states that local authorities must consider whether any proposed action is reasonable. The subsection also makes it clear that the exercise of power would not be considered unreasonable if the other person had consented. Public service providers are currently required to work much more closely in partnership to integrate service provision and improve outcomes which should reduce duplication of effort. If public service providers wish to improve outcomes and deliver services more efficiently, it is important that duplication is reduced. Accordingly, it is important that a local authority should not be able to unreasonably duplicate functions. However, it may be helpful for further guidance to be provided for authorities to understand what would constitute “unreasonable” duplication, as this would empower authorities to take more innovative actions to pursue service transformation where service sharing did not present the best opportunity to do so.
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8 Question 8 Would the removal of the restriction on duplication of functions, contained within section 22 of the Local Government in Scotland Act, provide an effective alternative to a General Power of Competence? If so, please explain. Powers to Trade Question 9 What trading activity would local authorities wish to pursue beyond the current power to provide goods and services, contained in the Local Authorities (Goods and Services) Act 1970? In light of the existing legal framework, North Ayrshire Council has not actively considered pursuing trading activities that would be beyond the existing power to provide goods and services in the 1970 Act. It is not considered that a removal of the restriction on duplication of functions would provide an effective alternative to a General Power of Competence. In the short term, it may be helpful for further guidance to be provided for authorities to understand what would constitute “unreasonable” duplication, as this may empower authorities to take more innovative actions to pursue service transformation.
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9 Question 10 Would the removal of the requirement to gain Ministerial consent to pursue income through the supply of goods and services deliver the aspirations of local authorities? Please provide examples of how the removal of this limitation would be utilised and the benefit that would be envisaged such as value for money, better allocation of resources, transformation of public services, better local outcomes etc Note: The provisions contained within section 1A of the Local Authorities (Goods and Services) Act 1970 requires that a local authority must gain Ministerial consent to pursue income through the supply of goods and services. However, this restriction does not apply in respect of an agreement entered into by a local authority with either another local authority, a public body; or with a person providing functions of a public nature. Goods and Services Question 11 What further activity would local authorities wish to undertake, beyond providing goods and services to the local area and/or persons within that area? As previously mentioned, an Authority cannot enter into a Trading Agreement if the income from that operation would exceed the statutory limit currently set at zero income from commercial services. Accordingly, it is therefore difficult for Councils to rely on the provisions of this legislation to justify the Council trading to pursue income to fund services. The removal of the requirement for Ministerial consent would assist local authorities to rely on the legislation if it was accompanied by removal of the statutory limit referred to in the 1970 Act. Alternatively, if a realistic statutory limit was sent subject to inflationary and other reviews or uplifts, authorities may be able to use the legislation with more confidence to pursue income. The dubiety as to the statutory definition and extent of the Power of Wellbeing would however remain an issue. In light of the existing legal framework, North Ayrshire Council has not actively considered pursuing further activity beyond providing goods and services to the local area and/or persons within its area other than those within clear statutory remits.
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10 Question 12 Should the introduction of greater local authority legislative powers continue to constrain the types of goods and services a local authority can provide? If so, please provide examples. Commercial Ventures Question 13 What type of commercial activity would local authorities wish to pursue, utilising a General Power of Competence? Please provide examples. It is important that local authorities are able to use new powers in any way which supports the achievement of outcomes for communities in a way that supports a transformative approach. If further restrictions on trading activities are needed, these are already provided firstly, by Best Value (as introduced under Local Government in Scotland Act 2003), and the role of Audit Scotland that goes along with it. Secondly, the rules on subsidy control and procurement provide further safeguards against the use of public resources to distort markets. As previously indicated, considering the existing legal framework, North Ayrshire Council has not actively considered any specific examples of commercial activity which could be pursued through a General Power of Competence.
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11 Question 14 Should greater legislative powers continue to constrain the types of commercial activity that a local authority can undertake? Please provide reasons. Question 15 Should greater legislative powers continue to constrain a local authority from engaging in commercial activity or any other activity beyond the local area. Please provide reasons. As previously indicated, it is important that local authorities are able to use new powers in any way which supports the achievement of outcomes for communities and transformation. If further restrictions on trading activities are needed, these are already provided firstly, by Best Value (as introduced under Local Government in Scotland Act 2003), and the role of Audit Scotland that goes along with it. Secondly, the rules on subsidy control and procurement provide further safeguards against the use of public resources to distort markets. As previously indicated, it is important that local authorities are able to use new powers in any way that supports the achievement of outcomes for communities and transformation. If further restrictions on trading activities are needed, these are already provided firstly, by Best Value (as introduced under Local Government in Scotland Act 2003), and the role of Audit Scotland that goes along with it. Secondly, the rules on subsidy control and procurement provide further safeguards against the use of public resources to distort markets. At present, this Council would only anticipate using powers to engage in activity in the local area. This would ensure that the authority continues to focus on local priorities. A wider area remit would however enable authorities to collaborate in ventures over a larger area particularly if those authorities are involved in cross area Growth Deals for example.
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12 Borrowing and Investment Powers Question 16 What greater financial controls or limitations, particularly in relation to borrowing and investments, should accompany a General Power of Competence in Scotland to ensure such actions cannot be repeated or their impact limited to protect core services? Question 17 What further investment powers do local authorities envisage requiring beyond those already conferred by statute and statutory guidance? Please provide examples of how such powers would be utilised to benefit the local area and people living within the local area. The Local Authority (Capital Financing and Accounting) (Scotland) Regulations 2016 identified the purposes for which a local authority may borrow. Borrowing for any other purpose can only be made with the consent of the Scottish Ministers. With regard to borrowing and investments we operate in accordance with the CIPFA Prudential code, capital accounting regulations and the Council has a published treasury management and investment strategy. Within these current instruments the Council is satisfied that they provide sufficient powers, safeguards and flexibility to effectively deliver local government services. Any departure from the current arrangements could increase the risk profile of the Council. Any alteration in powers would need to be accompanied by sufficient financial permissions and assurance processes to ensure that risks to Councils were not accentuated. Investments are currently made in accordance with current statutory powers and the Treasury Management and Investment Strategy. These activities are supported by Treasury Management Advisors. The current strategy includes permitted investments. These reflect the risk profile of a public funded body and the Council would not look to relax these any further.
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13 Question 18 Should there be greater reporting/disclosure requirements to ensure transparency in the use of public funds for borrowing and investment purposes and how these activities directly benefit the local area? Please explain. General Power of Competence Question 19 How would a General Power of Competence be used to improve the delivery of public services, ensure greater efficiency in the use of available resources and maximise outcomes for the local area and persons within the local area. Please provide examples. The Council currently meets its reporting obligations through the published Treasury Management and Investment Strategy. Due to the nature of this activity these are rather technical documents, however they are publicly available. The Council sees no requirement for any further disclosure at present. Around 80% of a council’s income is decided and allocated by the Scottish Government through the Scottish Parliament. How a council spends, and what it spends on, is also subject to substantial external direction and scrutiny. Some of the income allocated by the Scottish Government is “ring-fenced” for particular purposes prescribed by Scottish Government (e.g. pupil equity funding; attainment challenge funding). Broader conditionalities are also periodically attached to national grant allocations, e.g. an obligation to maintain teacher/pupil ratios at an agreed level. Local authorities will increasingly have to generate income to support public services. Currently there is no clear power to do so in Scotland and greater powers are required. The Power of General Competence would address this point. The use of the power in England has been described as a ‘can-do’ power, allowing Councils to build on pre-existing practices and methods of working, and providing confidence to pursue activities without requiring to find time and resources to explore whether it would be permitted under legislation.
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14 Question 20 How could we better articulate a General Power of Competence in Scotland to mitigate concerns and provide greater assurance both for local authorities and those they engage with? Please explain. Question 21 Since the General Power was introduced in England, Wales and Northern Ireland how has this been used to benefit the local area? Please provide examples of use of the power and the resulting benefits. Note: This question specifically relates to the general powers in operation in England, Wales and Northern Ireland. You may wish to refer to Annex B of the consultation document which sets out the relevant legislative provisions for England, Wales and Northern Ireland in detail. It is noted in the consultation document that several projects and initiatives have been brought forward by English local authorities since the introduction of the General Power. A General Power of Competence similar to the provision in the Localism Act 2011 would be recommended. This would enable a more consistent approach to be applied across the UK. However, it is recommended that some of the restrictions which apply in other jurisdictions should not be imposed and that the following would apply in Scotland: • There should be no requirement to use companies when engaging in income generation. • Provision of a discretionary service should be permissible on a commercial basis as opposed to cost recovery only to facilitate revenue generation. • There should be no bar on the creation of by-laws or enforcement activity. Statutory guidance should accompany any General Power granted.
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15 Question 22 What are the perceived barriers and/or limitations of the General Power of Competence in place in England, Wales and Northern Ireland? Please explain. Note: This question specifically relates to the general powers in operation in England, Wales and Northern Ireland. You may wish to refer to Annex B of the consultation document which sets out the relevant legislative provisions for England, Wales and Northern Ireland in detail. Question 23 Should a local authority’s use of a General Power of Competence be required to align to local regeneration or other demonstrable local area well-being enhancement? Including a positive condition on authorities to identify local regeneration or well- being enhancements may lead to the same issues as seen with the Power to Advance Wellbeing outlined above. That is, a local authority may be more likely to look elsewhere in legislation to find specific authority to pursue its aims, rather than risking judicial challenge on the limits of the power. It is suggested that any limits to a General Power of Competence should be clearly defined and less subject to interpretation, so as to provide authorities with as much certainty as possible. Several Councils in England have issued s.114 notices since the introduction of the General Power following financial difficulties. Commercial activities by Councils have been highlighted as a clear factor for some of these notices. Additionally, many English, Welsh and Northern Irish authorities have been reluctant to use the power beyond the functions specifically described in the legislation, due to concerns around legal challenge and judicial interpretation of the power, which entail financial and reputational costs.
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16 Islands (Scotland) Act 2018 - Devolution of functions/additional powers Question 24 Would similar provisions for mainland authorities to those provided for island councils by the Island (Scotland) Act 2018 provide sufficient or greater scope for local authorities to explore further envisaged activity? Please explain. You may wish to refer to Annex A of the consultation document which sets out the relevant legislative provisions in detail. Sections 15 and 21 of the Islands (Scotland) Act 2018 provides powers to island councils to ask for more powers and for the Government not to unreasonably refuse such a request. Similar provisions for local authorities across Scotland would create increased variation in decision-making arrangements across the country, recognising the diversity of communities and ensuring that public services can meet that diversity. Proposed powers may vary, depending on whether an authority is looking to Growth Deal powers, city powers, islands governance or single public authority models. In order to reflect the variety of communities across Scotland, similar provisions as those provided for in the Islands (Scotland) Act 2018 should be provided to all Councils.