Straying from the General Power of Competence

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Those living in Yorkshire cannot have failed to notice that the Grand Depart of the Tour de France is beginning in God’s own county this summer. The finish of the first stage is in Harrogate, next to the Stray, a large open area of land in the middle of Harrogate. Use of the Stray is governed by the Harrogate Stray Act 1985. Harrogate Borough Council were concerned that the 1985 Act prevented or restricted them from siting necessary infrastructure on the Stray to host the Tour de France. So they wrote to the Secretary of State asking him to make an Order to disapply certain parts of the 1985 Act for 16 days so that they could section off a quarter of the Stray and erect temporary infrastructure.

Section 1 of the Localism Act 2011 gives councils a general power of competence to do anything that an individual can do. Section 5 of the Localism Act enables the Secretary of State to make an Order to amend, repeal, revoke or disapply any statutory provision that prevents or restricts councils from exercising the general power of competence, provided that certain conditions are met. This is the first time that this power has been used. It entailed a six-week consultation, including hand-delivering 500 letters to local residents and displaying posters on the Stray. This elicited a grand total of 14 responses. Six were in favour, six raised concerns, and the other two did not comment on issues raised in the consultation. Given that the Order will only apply for 16 days, for a specific purpose, and Harrogate Borough Council undertakes to restore the Stray to its original condition afterwards, the Secretary of State considered it appropriate to grant it. The draft Order is currently awaiting approval by Parliament.

So what does this mean for local authorities? Whilst it may seem like using a sledgehammer to crack a nut in this case, it was still easier and quicker to use the Section 5 Localism Act procedure than to amend the 1985 Act itself. The Localism Act contains conditions that must be satisfied before the Secretary of State can effectively overrule existing legislation in order for councils to be free to exercise the General Power of Competence. In this case the conditions were easily satisfied (although the procedure seems costly and long-winded) but one can see why they are necessary since in theory any statute can be overruled by this power. Now that Harrogate has been brave enough to set this precedent, we wait and see who will be next.