Local Government, Competence and Scottish Independence

Aberdeen City Council recently sent out correspondence to council tax payers in the city, which included the usual information about rates and what the council spends council tax receipts on. The Council also sent out letters in the same envelope (thus incurring no extra postage costs), setting out a position on the Scottish independence referendum. Here is the letter I received.

Although I cannot know what went through the mind of each voter as they voted for their council, when a staggering 20.5% of the residents of my George Street/Harbour ward voted in the most recent council elections (the lowest turnout in Scotland: and yes, I voted) I suspect the UK constitution would not have been a high priority.* (Decent local recycling was, and remains, my primary moan, but I digress.) That has not stopped the council wading in to the constitutional debate.

Should they have done so? By which I mean, was it intra vires: i.e. did the council have the power to act in such a way? I refer you to other sources as to the newsworthiness (and indeed the political sense) of doing so, such as the BBC, the Evening Express and STV: I will (briefly) look at the law.

Local authorities take their powers from statute. As one example, if there is no specific power to enter into a contract, such an action is ultra vires (outwith the competence) of the local authority, hence why there was a need the Local Government (Contracts) Act 1997. I offer that legislation only by way of an example: this letter was not a contract. The key statute for Scottish local authorities is the Local Government (Scotland) Act 1973. Unsurprisingly, there is no specific “sending letters about the constitution section” in that act. There is a section empowering a council to do:

“any thing…which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.”

That might be able to hook on to something, but again I see nothing of immediate relevance in the legislation.

Then there is the Local Government in Scotland Act 2003, one section of which states:

“A local authority has power to do anything which it considers is likely to promote or improve the well-being of—

(a) its area and persons within that area; or

(b) either of those.”

Answers on postcard as to whether or not advising Aberdeen residents to vote a certain way in the independence referendum fails within that section.

I am not a local government lawyer, so there may well be other angles here that I am missing. There is also a potential representation of the people/using council resources to campaign in a political manner type issue, or at least it strikes me that there might be. If you have any thoughts, do let me know. Or perhaps you could let the council know what you think at the next local elections.

For what it is worth, I plan to recycle the letter I received, in the on-street paper/cardboard recycling bins that have recently been introduced to my area. I have no complaints whatsoever about Aberdeen City Council making that service available to me.

*For fairness, it might be noted people may not have voted at the Holyrood elections with the UK constitution in mind either. Forgive me for not opening that Pandora’s box in this blog, but at least the Edinburgh Agreement provides a bit of an out-ball for that discussion.

A discussion on Twitter ensued after this post. I have put together a Storify. A further thought (relating to the Local Government Act 1986) was added by Mark McDonald MSP.

One final update – the redoubtable Lallands Peat Worrier has now blogged on Aberdeen’s unhinged local government.

And one more final, final update (on 16 April 2014). The BBC has today reported that Audit Scotland is satisfied Aberdeen City Council has not broken any rules.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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One Response to Local Government, Competence and Scottish Independence

  1. Pingback: “It implies the pointless interference with the quiet of other people.” | A Greater Stage

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