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The real challenge for communities will be in mastering the fine detail within the Localism Bill, say Robin Hooper and Norman Perry Local government is adopting a position of cautious enthusiasm, tempered by wariness, towards the Localism Bill. The Government intends to legislate for the largest degree of subsidiarity ever seen in England. Councils have been calling for this kind of commitment for years, but became used to the idea that national politicians paid lip service, while the civil service did not even pretend to like it. On the face of it, the Localism Bill's general power of competence goes further than Section 2 of the Local Government Act 2000 – the ‘wellbeing' power – and grants councils the ability to do anything which a person or company can do, subject to the general law of the land. So what's not to like? Well, for a start, will the civil service actually let it happen? Historically, public institutions are usually in favour of not ceding powers to higher authority – as when former PM Margaret Thatcher tied herself to the mast to achieve what became Clause 3B of the European Treaty 1992 – the UK opt out. They are less keen on giving away their own powers – hence the Localism Bill's saving clause in the general power of competence, which allows the secretary of state to recover any matter. But the central administration seems entirely more relaxed about giving away other people's powers. Labour's David Miliband, when he was at Communities and Local Government, floated the concept of ‘double devolution' down to neighbourhoods, and important sections of the Localism Bill take this up in the form of the ‘community right to challenge' and ‘community right to bid'. Voluntary groups will have the right to express an interest in taking over the running of a local service, and the local authority must consider and respond to this challenge. Councils will also have to maintain a list of assets of community value and, if listed assets come up for sale or change of ownership, community groups will have time to develop a bid and raise the money to buy the asset when it comes on the open market. Quite apart from the opportunity for various legislative definitions – community, neighbourhood, asset – to limit the practical application of these new powers, and the parallel possibility that services and assets may end up, unintended, in the hands of commercial operators rather than community groups, there are important practical issues which Parliament should take into account while the legislation is being considered. Deconstructing a public service to allow one part of it to be delivered by a new group will involve tricky allocation of overheads, historic debt, leasing agreements, staff transfer, and so on. Ask any parish council which has innocently volunteered to take on a former district council car park. Will new community operators have to buy their own insurance, or can they piggyback on the council's purchasing power? Who would face the charges of corporate manslaughter should a fatal accident occur on premises, or in the course of a service newly taken on by a local group – horrible stuff, but it does happen? We have written before in The MJ (20 July 2010) on our view that levels of competence and experience in local government did not always match up to what was needed. Our key point is that managers who might lack essential competencies themselves are in charge of employing others to whom they give insufficient supervision, training and the transfer of experience. So, what will happen when the right to challenge and the right to bid come along? A council may obey the legislation – when enacted – test the market, and end up handing over a service or facility to a local group. But what judgments will they be allowed to make in this process, and how well could they make them? It is likely that some groups will make a great success of their venture, but others might founder on the rocks of management competence, financial acumen, ability to navigate through regulatory requirements, and even just sheer bad luck. What would happen then? Who shoulders the blame for failure? Will it be the volunteers who tried hard, or the officers and members of the council who acceded to their exercise of new rights? Trying to work out ‘where the buck stops' may seem miserabilist and defeatist, but there are important issues of accountability and responsibility which accompany the exercise of subsidiarity. The Government is thinning out the regulatory thickets of the public sector, which is no bad thing. But the disappearance of the Audit Commission, the Tenant Services Authority, the new narrower role of monitor with NHS trusts, and the partial dismantling of performance targets and systems, pose their own dangers with an unforgiving media and a central government machine which is no stranger to schadenfreude. Our advice to local authorities, housing associations and other public bodies is to be cautious. It may be worth keeping many of the existing targets and performance systems in place, until some new risk reviews have been carried out and more relevant systems designed. Over the course of the current Spending Review period, councils and other public bodies will be under immense stress, and there is a danger in getting cash to frontline services by eliminating too many control systems. Seen from the cold-eyed lawyer's perspective, this would not be a credible defence to a corporate manslaughter charge in the Crown Court nor, alas, to another ‘Baby Peter' case. Thinking ‘worst case' when cutting back-office costs will at least allow officers and members to weigh up risk in a rational manner. We are entering a period of significant change. The skill sets needed will, realistically, be better definable when it is all over. But, in the meantime, we offer ‘10 commandments' for getting through the financial stringency and the new challenges of the Localism Bill. Robin Hooper is director of public services, and Norman Perry is chairman of public services, at the law firm HBJ Gateley Wareing

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WHITEHALL

Just where does the buck stop?

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