What can your council do? What MUST your council do? What must your council not do?
may not be exciting, but without understanding them your council could
run into trouble.
A council must do what the law requires it to do.
A council may do only what the law says it may do.
A council cannot do anything unless permitted by legislation.
The crucial question is – does the council have a legal power to act? A
council must always ask this question when making a decision, especially if it
involves public money.
In April 2012, the Government introduced the
general power of competence
for eligible local councils
The general power of competence is designed
to make it easier for eligible councils
to act. It is intended to permit
eligible local councils to do anything that an individual might do, as long
as other legislation does not forbid it. This could include, for example, the
development of land for residential or commercial purposes.
The general power of competence has replaced the power of well-being,
although councils that had the
power of well-being
at that date can continue
to do so until the end of their elected term of office and also beyond that date
to complete any project. If you have any questions relating to the situation in
your council, ask your clerk for more information.
The general power of competence enables local councils to respond more
effectively to their communities’ needs, encouraging innovation and assisting
in shared service delivery. However, you must check with your clerk to make
sure you are acting appropriately. If the council does something which is not
permitted by legislation (even if it would be popular with the community), then
the council could face a legal challenge that it acted
beyond its powers
Councils who are not eligible to use the general power of competence can
undertake an activity only when specific legislation allows it. There is a useful
list of activities and specific legal powers in Part Five of this guide.
Acting without the legal power is an unnecessary risk which could lead to
financial and legal difficulties. The good news is that there are lots of sources
of advice. Start by asking your clerk whose job includes giving advice to the
local council. Your clerk will have access to a
of Parish and Town, or Local, Councils) for advice on legal and financial
matters. If your clerk is a member of the
Society of Local Council Clerks
they will have access to additional guidance.
If you identify barriers in legislation, national policy or the workings of
government, you can let the Department for Communities and Local
Government know via their
Barrier Busting portal
So what must we do as a council?
The law gives local councils choice in activities to undertake; but surprisingly
there are very few duties, or activities that they
must carry out in delivering
services to local people.
Exceptions are that a council must:
comply with its obligations under the Freedom of Information Act 2000,
the Data Protection Act 1998 and the Equality Act 2010
comply with employment law
consider the impact of their decisions on reducing crime and disorder
in their area
have regard to the protection of biodiversity in carrying out their functions
consider the provision of allotments if there is demand for them from
local residents and it is reasonable to do so
decide whether to adopt a churchyard when it is closed, if asked to do
so by the Parochial Church Council.
Your local council also has a duty to ensure that all the rules for the
administration of the council are followed. The council must:
appoint a chairman of the council
appoint officers as appropriate for carrying out its functions
appoint a responsible financial officer (RFO) to manage the council’s
financial affairs; the RFO is often the clerk, especially in smaller councils
appoint an independent and competent internal auditor (see below)
adopt a Code of Conduct (see below)
hold a minimum number of four meetings per year, one of which must
be the Annual Meeting of the Council (see below).
These rules are set out in law to guide the
procedures of the council and your council can add its own regulations.
Together these rules make up
standing orders as formally agreed by your council (see Part Three). If you
discover that your council does not have its own (non-financial) standing
orders don’t panic; this is unwise, but duties set out in
, such as appointing a chairman and a proper officer, still apply. The National
Association of Local Councils (see Part Five) provides model standing orders
Council, committee and sub-committee meetings must generally be open to
the public, whilst equality legislation reminds the council that it must make its
meetings accessible to anyone who wishes to attend. Similarly the Freedom
of Information Act 2000 requires the council to have a publication scheme
explaining how certain types of council information are made available.