Public Law

Following the launch of the joint Scottish Government and COSLA Local Governance Review in December 2017, public sector leaders were invited to suggest proposals for change. Local authorities were asked to consider what powers they would need to deliver better outcomes for their communities and strengthen local decision making. Those proposals would form the basis for new governance arrangements and, where necessary, legislative change aimed at increasing devolution at local levels.

Nine months on from the initial request, that invite remains open and a date by which COSLA and the Scottish Government will share the responses received has not been fixed. The Society of Local Authority Lawyers & Administrators in Scotland (SOLAR) has however responded and proposed a number of changes. Those changes are wide ranging and include strengthening the role of Locality Planning within Community Planning Partnerships, a new Power of General Competence for local government and changes to the Local Governance (Scotland) Act 1973. SOLAR’s response to the Review also calls for a concordat between local authorities and the Scottish Government and a comprehensive review of local government funding.

We have summarised some of SOLAR’s proposals below but the full response can be downloaded from its website.

It is clear that the suite of proposals made by SOLAR would require significant changes to the current legislative framework for local government. The Scottish Government committed at the outset of the Review to effect legislative reform through a Local Democracy Bill. We anticipate that following the conclusion of the period for proposals for change a further period for consultation on how those changes should be incorporated in the Local Democracy Bill will follow.

Community Planning Partnerships

Changes to the model for Community Planning Partnerships are proposed to strengthen the role of Locality Planning. Those include introducing new statutory duties requiring Community Planning Partnerships to support Locality Planning, including providing financial support, and to deliver services with regard to Localities. It is also proposed that local authorities should be under a statutory duty to divide their areas into localities

Power of General Competence

A new Power of General Competence is sought in response to the limitations on local authorities’ ability to exercise the Power of Wellbeing to create better outcomes for their communities. It is proposed that the Power of Well Being is repealed and replaced with the new power which should go further than the Power of General Competence already available in England under the Localism Act 2011. In particular, it is suggested that the new power should include the power to raise local taxes and to borrow for the purposes of capital expenditure without restriction. If greater financial powers are to be included within the scope of the new power SOLAR’s response recognises that will require further legislative changes to be made to financial powers for local government.

Changes to the Local Governance (Scotland) Act 1973

A number of specific changes to the governance arrangements for local authorities are proposed. They include amending section 56 of the 1973 Act which currently only allows a local authority to delegate its functions to committees, joint committees or officers. The intention is that delegation to partners of Community Planning Partnerships and to communities should be permitted, as well as further delegation by Community Planning Partnerships.

Kenzie Sharkey

Kenzie Sharkey

Senior Solicitor at Brodies LLP
Kenzie joined the firm’s Government, Competition and Regulatory Law team in January 2018 from a background in local government. Working in-house she provided advice on a wide range of property, commercial and social care matters, with a particular interest in community care.
Kenzie Sharkey