Clare Hardy sets out some of the opportunities presented by the Local Government and Elections (Wales) Act 2021.
Local authorities in Wales will have important new powers from the Local Government and Elections (Wales) Act 2021, which received Royal Assent in January. Some parts of the Act are already in force.
The 2021 Act introduces a general power of competence for principal councils and eligible community councils in Wales. This will put local authorities on a par with local authorities in England, who have a general power of competence in the Localism Act 2011. This could provide local authorities with useful new scope for their activities but there are limits on the use of the power. It cannot be used to avoid a prohibition, limitation or restriction in another statute. It cannot be used by a local authority to delegate or contract out functions or change governance arrangements. It can be used to charge for discretionary services but the income from charges must not exceed the cost of providing the services. Local authorities can use the power for commercial purposes but must do so through a company. In practice, case law on the general power of competence in the Localism Act 2011 has shown that these limits are unlikely to prove unduly restrictive on the activities of local authorities.
The Act will restrict the well-being power in the Local Government 2000 to community councils in Wales. However, local authorities in Wales are subject to the well-being duty in the Well-being of Future Generations (Wales) Act 2015, which requires them to set and publish well-being objectives and take all reasonable steps to them. So, local authorities will need to consider how any decisions they take to exercise the well-being power will affect their ability to meet their well-being objectives.
The Welsh Ministers will need to make an order to bring the general power of competence in force.
The 2021 Act imposes duties on local authorities when holding meetings. These include requirements to make arrangements for persons to attend local authority meetings by remote means and to provide remote access to members of the public. Local authorities already have powers to do this under the Local Authorities (Coronavirus) (Meetings) (Wales) Regulations 2020 but these are due to expire in May 2021. Although those regulations were introduced to address the need for social distancing because of the coronavirus, the ability to attend meetings remotely has generally been seen as positive. It has been reported that organisations representing local authorities will be seeking a declaration from courts that other existing legislation will allow local authorities in England to continue holding meetings remotely beyond May 2021. In Wales, the 2021 Act puts the question beyond doubt.
There can of course be difficulties as well as positive aspects when holding meetings remotely, as was shown by the recent parish council meeting in England which became an internet and media sensation. Local authorities will need to consider how the requirements of their codes of conduct apply to behaviour at meetings held online. Other challenging issues to address will include ensuring that access to confidential matters is restricted in circumstances when local authority members are attending meetings from a variety of locations.
The 2021 Act has also given principal councils the power to apply to the Welsh Ministers for regulations to establish a body corporate, known as a corporate joint committee, to exercise a function of the councils. The Welsh Ministers also have the power to make regulations to establish a corporate joint committee even where no request has been made in order to exercise functions relating to improving education; transport; preparing a strategic development plan or the economic well-being function.
This part of the Act is already in force and the Welsh Government has already carried out consultation on establishing regional corporate joint committees for Mid Wales, North Wales, South East Wales and South West Wales. There is therefore a very real prospect of seeing councils operating through joint committees in the near future.
Local authorities have established joint committees in the past and have found them effective for decision-making which needs to involve more than one local authorities. However, previous legislation did not make it possible to establish joint committees with their own legal personalities, which limited the actions that they could take to implement their decisions. The introduction of corporate status for joint committees in Wales creates exciting potential for local authorities to work together effectively.
Other provisions introduced by the Act include:
- A new regime for monitoring the performance of principal councils.
- Changes to voting rights to allow persons aged 16 and over and qualifying foreign citizens to vote in local government elections in Wales.
- Power for a principal council to change its voting system from a simple majority system to a single transferable vote system.
- A duty for principal councils to encourage local people to participate in local government.
- A duty for principal councils to publish a guide to their constitutions, explaining the content in ordinary language.
- A duty for principal councils to appoint a chief executive.
- Provisions relating to the pay of chief executives.
- An obligation for local authorities in Wales to include provision in their executive arrangements to enable councillors to share positions on an executive.
- A duty for leaders of political groups to take reasonable steps to promote and maintain high standards of conduct by the members of their groups and to co-operate with their council’s standards committee in the exercise of the committee’s functions.
- A duty for regulators to have regard to the need for co-ordination in the exercise of their relevant functions.
- Power for principal councils to apply for voluntary merger of their areas.
- Amendments to legislation relating to local government finance.
- Removal of the prohibition on a local authority’s monitoring officer being designated as the authority’s head of democratic services and provision for the post of head of democratic services to be designated as a chief officer for the purpose of a local authority’s pay policy statement.
The Local Government and Elections (Wales) Act provides the prospect of exciting changes in the local government landscape in Wales.