Deficiencies in the local government legal framework, including the absence of a general power of competence, were the subject of action by the Government in the early phases of the modernisation agenda.

Public law revolves around key powers being granted by Parliament and the gaps being filled by incidental powers, such as Section 111 of the Local Government Act 1972.

Where any scheme is proposed, it should be relatively simple to decide whether the proposed action is legally authorised under relevant powers or not. In the past, though, there have often been widely-differing views – even among lawyers – and substantial – and worrying – doubts over legality.

It is for this precise reason that the wellbeing powers were introduced. These were wholly-new powers of community initiative or wellbeing, via Section 2 of the Local Government Act 2000. They were intended to be Labour's version of powers of general competence, and were cleverly drafted to be wide and purposive and avoid some of the more restrictive legal arguments which had been so problematic in the past.

Section 2 of the Local Government Act 2000 permits a local authority to do ‘anything' it considers is likely to promote or improve the economic, social or environmental wellbeing of their area. The main limitation on this new general power is that it cannot be used to do anything that a local authority was unable to do by way of any ‘prohibition, limitation or restriction' on its powers.

So the wellbeing power – described by the Department for Communities and Local Government as a power of ‘first resort' – is a stand-alone power which, unlike Section 111, does not need to be joined to another council function.

The Government produced guidance in support of these powers which authorities must have regard to. Although this was written in the shadow of years of legal interpretation problems, it was refreshingly positive. It makes clear that local authorities can set up companies using these powers, and can both innovate and experiment. The wording of Section 2 is important. The use of the word ‘likely' means a project does not actually have to succeed in order to be lawful. It might fail in due course – ie, not have a wellbeing effect – but provided the local authority considered it was likely it would have such an effect then the power is there – hence the facilitation of ‘experimentation' to improve services. This is also based on the subjective view of the authority itself. Even case law on the limitations on Section 2 – mentioned above – has been helpful here with the few cases there have been supporting the wider interpretation of the provisions.

The Government has endured significant criticism about its public policy reforms, but no-one can doubt it has worked hard to give local authorities the legal tools they need to deliver better services, and to experiment and innovate.

Why then, despite a wide power having been granted, positive guidance from the Government and no adverse case law being in existence is there little evidence of innovative use of the new power?

A Google search as we completed this article illustrated there are authorities using wellbeing. For example:

But these represent a trickle rather than a flood.

The DCLG is keen to encourage local government to do more in this area and as such, is about to publish a wellbeing ‘how to' handbook. There is also a separate publication planned to consider the use of wellbeing powers in relation to sustainable development.

These demonstrate further attempts by the Government to kick-start the wellbeing engine.

It is particularly surprising that the powers which were intended to end all of the speculation about legal authority for local authorities to achieve goals that are clearly in the public interest, have not yet had the desired effect.

Stephen Cirell is head of local government at Eversheds, where Denis Cooper is a senior associate