In the recent LAML judgement the Courts ruled that the local authorities who had set up a mutual insurance scheme did not have the legal powers to do so. There were various aspects to the judgement, some specific to the case, but some with much wider implications. In particular, the case showed the limitations of the legal ‘Power of Wellbeing’. LGiU have been making the case for some time that we need a much broader Power of General Competence for councils. We wrote a paper on this ahead of the Conservative localism Green Paper ‘Control Shift’ which commited the Conservatives to introducing the power of general competence. Without breaking the confidences of a recent private discussion, my understanding is that Government lawyers are saying that the LAML judgement would have been the same even if a Power of General Competence existed. The LGiU’s own legal expert, who has made a study of these issues, is clear that this would not be the case. Ministers seem to find it extraordinarily difficult to resist the legal advice they receive from government lawyers. To say “I will accept this external legal advice and not yours” would be an affront to the government lawyers and the civil servants who are feeding the advice through, and Ministers are cautious of upsetting their officials. More than that, a Minister would be politically exposed if they acted against the legal advice they receive. Does this matter very much in the short term? Probably not, I expect the best we can hope for in the coming months is an attempt at sticking plaster legislation that deals specifically with LAML, rather than the wider point of the limitations of the Power of Wellbeing. But in the longer term I think the preeminence of civil service lawyers matters a great deal. The first test of the likely Conservative new Secretary of State for Local Government will be whether they are prepared to take the lawyers on. If they don’t, much of the radical devolution in the localism Green Paper, including the Power of General Competence, will be lost.
England & Wales