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The Local Government in Scotland Act 2003
Power to Advance Well-Being Guidance
CHAPTER 3: SAFEGUARDS
Limits on power to advance well-being
3.1 Use of the power is subject to certain safeguards. Section 22 of the Act clearly sets out a framework of safeguards around the use of the power to advance well being. In particular:
- The power to advance well-being does not enable a local authority to do anything which it is, by virtue of a limiting provision, unable to do. A 'limiting provision' is one which explicitly prohibits or explicitly prevents the local authority from doing anything or explicitly limits its powers in that respect, and is expressed in any enactment. That means that while the power to advance well-being is subject to limiting provisions expressed in legislation, it is not subject to limitations which are merely implied in existing legislation or where legislation is silent. An example of this is section 105 of the Housing (Scotland) Act 2001 which authorises specific works but with the clear overall purpose of improving energy-efficiency and safety and should therefore not be read in the context of the power to advance well-being as limiting works to these specific categories.
- The power shall not be exercised in a way that unreasonably duplicates the legislative functions of another body. While Community Planning will be an invaluable process in agreeing joint visions and joint or shared action, the Act guards against an unreasonable duplication of an activity by a local authority which falls within the statutory competence of another public body. The Act makes clear that exercise of the power in a way which duplicates the legislative functions of another body is not prevented where the person there mentioned consents to the exercise of the power.
- The power does not enable a local authority to do anything which may be done under the Local Authorities (Goods and Services) Act 1970. This means entering into an agreement with another person to provide services, goods and materials, property or facilities in relation to a trading operation for which, in accordance with proper accounting practices, the authority keeps trading accounts.
- The power does not enable a local authority to raise money by levying any form of tax or charge. This does not however prevent a local authority from setting and determining amounts of council tax or from imposing reasonable charges for services provided where the activity does not constitute a trading operation according to proper accounting practice. A trading operation is currently defined, under proper accounting practice, as an operation that meets the following criteria: the service is provided in a "competitive environment", that is the user has discretion to use alternative providers; and the service is provided on a basis other than straightforward recharge of costs, that is users take the service on the basis of quoted lump sums, fixed periodical charges or rates or a combination of these (See CIPFA's "A Best Value Approach to Trading Accounts" for a definition of what could be regarded as a trading operation);
- Section 22(11) provides that where any charge is imposed, the local authority should publish its reason for doing so and an explanation of the amount of the charge. These explanations need only be brief. In terms of what may be deemed reasonable in this context, it is the intention of Scottish Ministers that local authorities should be allowed the flexibility to recover costs from use of the power to advance well-being.
- The power does not allow local authorities to promote economic development outside the United Kingdom without the prior consent of the Scottish Ministers. This safeguard is intended to help ensure that the promotion and improvement of economic development of all parts of Scotland is properly co-ordinated at a national level.
Guidance
3.2 Section 21(1) requires local authorities to have regard to any guidance issued by the Scottish Ministers about the use of the power. This document represents such guidance. In accordance with section 21(2) it has been subject to extensive consultation before being published.
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