Tag Archives: local government

Paul Kildea: Australia’s abandoned local government referendum

photo-paul-kildeaIt is almost forgotten now, but Australians were recently set to vote in a referendum on the constitutional recognition of local government. Had it gone ahead, the referendum would have been the first since the republic poll in 1999, and potentially would have seen the first amendment to the Constitution in 36 years.

But the planned referendum was effectively cancelled when Prime Minister Kevin Rudd announced in August that the federal election would be held on 7 September, a week earlier than anticipated. A combination of constitutional and electoral rules prevented the local government poll from running sooner than 14 September, and so it had to be abandoned. This was a huge disappointment to local government, compounded by the fact that the referendum is unlikely to run under the new conservative Liberal-National government led by Prime Minister Tony Abbott.

Given no votes were cast, analysis of the abandoned referendum naturally turns to questions of process. Now that the push for local government recognition has ended in a whimper, is there anything that we can learn from its failure? This question matters more than it usually might, as the Abbott government has indicated that it will run a referendum of its own in the coming years – on the constitutional recognition of Aboriginal and Torres Strait Islander peoples. Advocates of that reform will be hoping that the government can learn from the mistakes of the past three years. In particular, they will hoping for something different when it comes to public engagement in the process, and campaign funding.

Before turning to these process issues, it is worth sketching some background to the local government reform that didn’t quite make it to the people. The proposal was to amend section 96 of the Australian Constitution to allow the federal (ie, national) government to give funding directly to local government bodies, rather than having to go through the States. Canberra has been making direct payments to local councils for decades, but the constitutional validity of this practice was cast into doubt by recent High Court decisions in the Pape and Williams cases.

Advocates of the reform proposal argued that existing and future spending programs on essential services like road maintenance would be vulnerable to challenge unless the Constitution was altered. Local government also saw the referendum as a way to enhance its status in the eyes of the community. Opponents argued that the reform was unnecessary, given the ability of the federal government to fund councils indirectly through the States. And they viewed it as a means of enhancing central power at the expense of the States.

It is perhaps not surprising that debate about these issues never quite captured the public imagination. What was on the table was a technical amendment and, notwithstanding attempts by local government to link it to everyday concerns like road safety and local parks, encouraging citizens to take an interest was always going to be a challenge.

The cause was not helped by the fact that little groundwork had been done to educate and involve the public in the process. In 2011 the government appointed an expert panel to conduct community consultations, but gave it insufficient time and resources to do the job properly. In total the Panel held six consultations, attracting just 127 participants, most of whom were local council representatives. The chair of the expert panel, James Spigelman, later noted that the consultations ‘did not attract much in the way of public response’. It is fair to say that most Australians would have heard about local government recognition for the first time in May 2013, when the government announced its intention to hold the referendum.

It is interesting to speculate whether or not the Australian people would have approved the proposed constitutional amendment, irrespective of the absence of public engagement. An Australian Financial Review/Nielsen poll taken in May found that 65 per cent of voters supported it, but a Morgan poll in June registered support at just 47 per cent. The historical record suggests little cause for optimism: since 1901, Australians have voted ‘Yes’ in just 8 of 44 referendums.

The Gillard government no doubt had this historical record in mind when it made what was the most controversial announcement of the referendum campaign. On 17 June 2013, Local Government Minister Anthony Albanese announced that the government was going to make available $10.5 million to assist both supporters and opponents of local government recognition in promoting their arguments to the community. Albanese explained, however, that this funding was to be allocated on an unequal basis, with $10 million going to the Australian Local Government Association (to prosecute the Yes case) and just $500,000 to opponents of constitutional change.

Equal campaign funding is widely considered to be an element of good referendum practice. The Venice Commission, for instance, endorses ‘a neutral attitude by administrative authorities’ towards campaign funding in its Code of Good Practice on Referendums. But, as a result of legislative amendments made by the Parliament earlier this year, the government was free to distribute its funding as it wished.

Albanese justified the disparity on the basis that it was in line with the level of support that the proposed constitutional amendment had received in Parliament. Indeed, the proposal had attracted broad cross-party support, garnering roughly 95 per cent of votes in Parliament. An unspoken motivation might have been to ‘load up’ the Yes case in advance of the possible launch of well-financed No campaigns run by State governments.

Whatever the rationale, the decision to allocate promotional funding unequally backfired. Tony Abbott (then the Opposition Leader) accused the government of trying to ‘buy’ the referendum result, saying that ‘argument, not money, should determine the outcome’. Conservative MPs, already divided on the merits of local government recognition, were upset by the funding announcement and it was soon reported that it had placed bipartisan support in jeopardy. This was not an insignificant development, as no referendum in Australia’s history has succeeded without bipartisan support. Had the referendum proceeded, this cooling of support may have proved decisive.

The Gillard government’s approaches to public engagement and funding are each understandable in the context of a government trying to push through a rather technical reform that was never going to attract much in the way of public interest. But the constitutional recognition of Aboriginal and Torres Strait Islander peoples requires a different approach.

Unlike local government recognition, Indigenous constitutional recognition is not, at heart, a technical issue. It raises emotional questions around racial discrimination, reconciliation and cultural identity. Broad public engagement, and intensive consultations with Indigenous peoples in particular, are essential to the legitimacy of the process.

Fortunately, the Gillard government oversaw a nationwide consultation process on the issue in 2012 that attracted large numbers of participants and submissions. It also funded a campaign group, Recognise, which has helped to maintain momentum on the issue through initiatives like its Journey to Recognition. This has provided a solid foundation for public involvement that the local government referendum never had.

The challenge for the Abbott government will be to build on this. A joint parliamentary committee has been tasked with further consultation, but it is unclear what form this will take. As time passes, the case for another round of broad-based consultations becomes stronger. And mass engagement remains elusive, pointing to the need to actively raise awareness and understanding.

On campaign funding, the local government example demonstrates that the credibility of the process can be damaged where funds are allocated in a highly disproportionate way. This lesson is particularly important with respect to Indigenous constitutional recognition, given the complexity of the proposed reforms and the strength of feeling about the issues. Another ad hoc funding arrangement that favours the government’s position could impair trust in the process.

Having said that, equal funding may not be the most desirable approach on this issue. Should a broad community consensus develop around a particular suite of reforms, the government may not wish to spend millions of dollars supporting a No case that has little public support. But if the government would like some flexibility in how it spends promotional funds, it should obtain Parliament’s agreement to this well in advance of any future referendum. This will prevent a funding controversy flaring up mid-campaign like it did in 2013.

The push for constitutional recognition of local government has stalled, but Indigenous recognition need not share the same fate. Most of the attention in the coming years will naturally be on the substance of reform proposals. But, with the abandonment of the local government referendum in mind, Australia’s political leaders must also take time to build a fair and credible process that is underscored by popular ownership.

Dr Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law

Suggested citation: P. Kildea, ‘Australia’s abandoned local government referendum’  UK Const. L. Blog (29th November 2012) (available at http://ukconstitutionallaw.org).

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John Stanton: The General Power of Competence and Reshaping Local Public Service Provision

johnI wrote back in March about the way in which, despite efforts to decentralise autonomy to the local level and to inspire and empower citizens to get involved in local politics, Central Government seems reluctant to ‘let go’ and to give local authorities a free rein in relation to the exercise of local powers. New neighbourhood planning measures provided suitable example.

On a slightly different aspect of local autonomy, news comes this week that Communities and Local Government Secretary of State, Eric Pickles, has been catching up on the way in which councils are using the General Power of Competence (GPC), introduced by the Localism Act 2011 as a replacement to the well-being power.

The Chairman of the Local Government Association (LGA), Sir Merrick Cockell, notes that “the GPC is giving councils greater freedom and confidence to think outside the box, be innovative and develop new services and partnerships … However, despite the impressive examples of GPC use … it remains limited by constraints set by central government. Easing those restrictions would certainly help encourage others to unlocking the potential of using it.” Such restrictions include a limitation on the number of company structures permitted; charges made under the GPC only being made for discretionary services which recover costs but which do not generate profit or surplus; and a restriction to the effect that the GPC does not extend the ability of councils to create byelaws or undertake enforcement.

In a sense, then, it’s the same story – the government trying its utmost to push power down to the local level and to encourage councils to take the initiative and lead forward change and improvements through innovative use of local powers; but in reality, due to excessive restrictions, local government is only able to act innovatively and responsively within parameters set by centralised authorities, far removed from local problems and issues.

Consideration of the way in which the GPC has been used, however, comes at a time when the relationship between Central and Local Government, particularly within the context of local council funding, is very much at the fore.

With the Coalition recently announcing that local councils would suffer a 10% cut in funding from Central Government, serious consideration needs to be given to the way in which local government can operate effectively. Whilst such cuts are inevitable during these financially constrained times, coupled with over prescriptive and centralised supervision, there is perhaps a danger that local authorities could reach a point where they are too reliant on central government telling them what to do within the financial limits also set by Whitehall.

One solution, discussed at the recent LGA Conference, would be to merge key government departments that provide public services, predominantly through local councils, and give local authorities the power to decide issues of funding and public service provision for themselves. This would shift the emphasis away from Ministers and a large number of civil servants, currently controlling local public service provision, and ensure that such power is directed and controlled at a more appropriate level, jointly by those at Whitehall and the local governmental level. Whilst creating what has been termed ‘an office for England’ would be a dramatic change with far reaching consequences, the key objective of giving local authorities greater power and more say over their funding could more realistically be achieved. It would relieve decision and policy makers of the ‘one size fits all’ approach and empower councils to allocate money appropriate for a particular policy area.

There is, as was noted at the LGA Conference, an awful lot of waste generated by the relationship between Central and Local Government which comes as a result of wanting to push power down to the local level at the same time as ensuring that Whitehall retains directing control over the broad framework of public service provision. Eradication of such waste would be a further by-product of Sir Merrick’s proposal, which could lead more widely to a much-needed redrafting of the constitutional relationship between Central and Local Government and perhaps finally give effect to what many recent governments have promised – power to the people.

John Stanton is a lecturer in law at City University, London.

Suggested citation:  J. Stanton ‘The General Power of Competence and reshaping local public service provision’ UK Const. L. Blog (27th July 2013) (available at http://ukconstitutionallaw.org).

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John Stanton: Localism in action?

JohnLast week the Department for Communities and Local Government reported that Eden in Cumbria had become the first area in the country to vote for the approval of a neighbourhood plan, setting out the community’s vision for local development.  The right for a community to make such plans is set out in Section 116 and Schedule 9 of the Localism Act 2011, amending the Town and Country Planning Act 1990. Eric Pickles MP considered that this was “localism in action and a fantastic result for people … who have worked hard to make sure they are in the driving seat by deciding what’s best for their community”. Indeed, the DCLG notes that the neighbourhood planning power “replaces top down regional planning” and “gives communities a new role” and a stronger voice. This post considers, however, whether the power really does this.

For many, many years incoming governments and local government departments have continuously voiced the need to decentralise to local authorities and communities, to encourage citizen participation and to put power in the hands of the people. From John Prescott in 1998 and Ruth Kelly in 2006 to Eric Pickles in 2011; recent local governmental policies, White Papers and enactments have been littered with such promises for reform and invigoration. And whilst I don’t necessarily argue that these have been wholly unsuccessful, constantly shifting reforms and policy-bases have meant that there has been no stability to local government development over the last few decades. As a result, any success there has been has not been long-lasting. For example, the 2009 Local Democracy, Economic Development and Construction Act’s duty on local councils to respond to petitions, with the aim that local people would be more encouraged to get involved and local authorities more inclined to listen, was repealed just two years after its introduction. Only time will tell if the neighbourhood planning provision in the Localism Act 2011 will bring more long term benefits.

The crux of this issue, however, rests on the fact that there is too great a reluctance on the part of centralised authorities to ‘let go’ of local government, meaning that its policy bases shift at the whim of the changing central governmental landscape. For local government development and democracy to thrive, central government needs actually to ‘let go’ of local authorities and to engage less in the micro-management and bureaucratic guidance of local government in which it seems constantly to have been engaged in recent years. To explain, the aforementioned 2009 Act laid down precisely and meticulously those instances when local petitions could be invoked, how local people could set them up and the requirements necessary for them to be considered by local authorities; on a sub-local governmental level, New Labour’s regeneration initiatives, whilst encouraging citizen involvement in community development, laid down in detail those instances where citizens could participate and how they were  to work towards local regeneration; and the Localism Act, whilst proclaiming (in Part 1, Chapter 1) that a local authority can do anything an individual can do, goes on to prescribe exactly how a local authority can act under that power. Whilst the introduction of such provisions and policies, decentralising and locally empowering, should be praised; their true democratic potential and the stable and ongoing improvement of local government development and democracy will only come, I argue, when centralised authorities let go of the reins a little. Coming back to the power in s.116 and Schedule 9 Localism Act, if community powers to make neighbourhood plans are to be successful, central government is going to have to let local communities get on with it and not overly prescribe or micro-manage the manner of the power or the way in which it operates. The Localism Act’s provision is detailed; time will tell the extent to which it really gives communities freedom to develop independently.

This constantly shifting and overly bureaucratic attitude towards local government has, I argue, also played an instrumental part in local government election turnouts. Individuals associate local political party potential with their national counterparts; and whilst various factors have contributed to wider citizen disenchantment with centralised politics, so this has been reflected at the local ballot boxes. In short, constantly changing policy and central government continuously assuming a firm hand on the local governmental tiller has given rise to voter apathy and disenchantment. Indeed, whilst last week was notable for the folk of Eden, Cumbria, the DCLG seem reluctant to draw attention to the fact that only 34% of the local population turned out to vote for the neighbourhood plan; instead seeking to praise the favourable comparison with the 19% turnout for the PCC elections. Such a low turnout is typical of local democracy and, indeed, whilst it is not the worst recorded attendance, it is far from democratically satisfactory.

What needs to happen, therefore, is that central government needs to stop over prescribing local authority powers and micro-managing the way in which such powers are used. In the US, local government is one of the most popular levels of government and its council-manager structure one of the most successful (see: W Hansell, ‘Council-manager government in the United States in the twentieth century’ (2000) JLGL 60). Reasons underlying this are that there is no constitutional protection for what the US local authorities can do or the powers that they have, meaning that there is no centralised control (see Hansell). Instead, local government in America thrives on a culture of decentralisation, empowerment and – most importantly – independence (see Hansell). Unelected council-managers, strongly accountable to elected local officials, are appointed to manage and oversee local government and local democracy in any one area (see Hansell). This system is of great interest and whilst by no means the first to explore or consider it, I argue that taking management of local governmental development and democracy away from centralised government, rife with its own political and governmental issues and pressures, and into the hands of locally appointed managers seems a particularly desirable model. Local governments would be able to develop on their own and not at the whim or on the basis of widespread, politically-motivated and constantly shifting policies; such developments would be specific to a local area and would be independently and locally implemented; and most of all – local government would be seen as an entirely different and independent entity by the people. As such, election turnouts would be less influenced by national political issues or centralised policy-drives, and based more on the performance of local managers and, through their accountability to local officials, their success in guiding the policies in a local area. Of course, the US constitutional framework is fundamentally different from our own and putting such a local governmental structure into practice would be an administrative task of grand proportions; but it makes one wonder, doesn’t it? In an age where everyone is looking upwards at the EU and the ECHR, perhaps it is time to let local governments fend for themselves and, free from centralised ties, focus on the real improvement of democracy and development at the local level; with the funds to make it happen, of course (another issue for another day).

The Localism Act and the neighbourhood planning provision that gave cause for celebrations in Cumbria last week, then, is by no means a failure. It promises decentralisation, empowerment and citizen involvement and should be praised for the manner in which it sets this out. Its song is not an entirely new one, however, and it inspires a sense of déjà vu in terms of its profile for local democratic reform. If local democracy and local government are to develop and be invigorated in the way in which so many recent governments have promised, then a change in attitude is needed. There needs to be less micro-management and less bureaucracy from centralised institutions. Local government should be local.

John Stanton is a lecturer in law at City University, London.

Suggested citation:  J. Stanton ‘Localism  in action?  UK Const. L. Blog (14th March 2013) (available at http://ukconstitutionallaw.org).

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Andrew Le Sueur: ‘Fun-loving guys’, government ‘doing anything that individuals do’ and the rule of law

In my administrative law lectures, I get students to practise an action that I explain ought to become instinctive in the minds of lawyers working for (or against) government. You extend your index finger and, in a sweeping movement, point to a law in the book in front of you, or on the library shelf, or on Westlaw, or wherever. As Mr Justice Laws said in Fewings, ‘For private persons, the rule is that you may do anything you choose which the law does not prohibit … But for public bodies the rule is opposite, and of another character altogether. It is that any action to be taken must be justified by positive law’.

Pointing at positive legal authorisation for an act of government is not always straightforward – and that is half the fun and challenge in studying administrative law. The ‘positive law’ may be implied; it may be unclear. The issue in Fewings was whether Somerset County Council could lawfully ban hunting on its own land (a decade before the Hunting Act 2004 put in place a national ban on hunting with dogs). There was some awkward scrabbling around for any statutory basis for local authority management of open spaces but the parties alighted on (and the judges agreed) that s 120(1)(b) of the Local Government Act 1972 was a good enough foundation, even though it was ostensibly about the acquisition rather than the on-going management of land for ‘the benefit, improvement or development of their area’. Laws J and the majority of the Court of Appeal held, for somewhat different reasons, that s 120(1)(b) did not enable a hunting ban on council-owned land. The council had mistakenly assumed it could act like a private landowner and had not applied its collective mind to the purposes or limits of the power conferred on it by s 120. The judgments were regarded as undemocratic by some.

Another complication in the finger pointing approach is s 111 of the Local Government Act, which gives local authorities ‘subsidiary powers’ to do anything ‘which is calculated to facilitate, or is or conducive or incidental to, the discharge of any of their functions’. This wriggle-room can’t be taken too far into things that are ‘incidental to the incidental’. If we had time in my lectures, we could go into the ‘wellbeing powers’ created by s 2 of the Local Government Act 2000 and the twists and turns that ensued from that.

My finger-pointing exercise will need a radical re-think for the 2012-13 academic year. Section 1 of the Localism Act 2011 came into force in February, several weeks earlier than anticipated as a government response to the High Court’s ruling that Bideford Town Council had no powers to allow Christian prayers to be said at the start of council meetings. Mr Justice Ouseley held ‘There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council’.

The situation is now different under s 1(1) of the 2011 Act, which says ‘A local authority has power to do anything that individuals generally may do’. This includes ‘power to do it anywhere in the United Kingdom or elsewhere’, ‘power to do it for a commercial purpose or otherwise for a charge, or without a charge’ and ‘power to do it for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area’ (s 1(4)). This general power ‘is not limited by the existence of any other power of the local authority which (to any extent) overlaps with the general power’ (s 1(5)).

At second reading of the bill that became the 2011 Act, Eric Pickles MP (Con), Secretary of State for Communities and Local Government, said:

‘The reason why the general power of competence is so important is that it turns the determination requirements on their head. All those fun-loving guys who are involved in offering legal advice to local authorities, who are basically conservative, will now have to err on the side of permissiveness. That is a substantial change …’.

The government believes that the formula used is judge-proof. Junior minister Andrew Stunell MP (Lib Dem) assured colleagues on the public bill committee ‘just how broad that power is’ and, thanks to subsections (5) and (6), the ‘courts will find it difficult – we have been advised that they will find it impossible – to unpick that’. Later he said, clarifying the intended reach of the new general power:

‘In the past, local authorities could only do things that were permitted to them by legislation. We are now inverting that and saying, “You can do anything that isn’t forbidden by legislation.” That does not mean that we are taking away the current forbidden territory and saying to authorities that they can go into the forbidden territory. It is not saying that they can abandon their statutory and legal duties that are imposed by existing legislation.’

The idea of a power of general competence (PGC) for local authorities is neither peculiarly English nor is it new.

For example, the pros and cons of a PGC were hotly debated a decade ago in New Zealand, where it was seen variously as a ‘coming of age’ for local authorities to be ‘responsive to local needs’ or ‘an unhindered invitation for small-minded politicians and bureaucrats to meddle and construct empires funded by the taxes of their passive citizens no longer protected by the check and balance that prescription provides’.

In England in 1967, the Maud committee report on the management of local government recommended a PGC. The report argued ‘ultra vires as it operates at present has a deleterious effect on local government because of the narrowness of the legislation governing local authorities’ activities. The specific nature of legislation discourages enterprise, handicaps development, robs the community of services which the local authority may render, and encourages too rigorous oversight by central government. It contributes excessive concern over legalities and fosters the ideas that the clerk should be a lawyer’ (para 283). Forty-three years on, similar sentiments led to the promise of a PGC as a promise in the Coalition Government’s agreed programme.

So far as I can see, the introduction of the PGC for local authorities has sparked very little constitutional concern or even interest in England. There was, for example, no report from the House of Lords Constitution Committee drawing attention to the implication of a PGC for the rule of law. Debate on the bill leading to the Localism Act 2011 was rarely couched in constitutional terms. Why so? I have two suggestions.

First, in the UK there is a general lack of interest in local government from a constitutional standpoint. This seems to be the first post on this blog focusing on local authorities. In law schools, local government has squeezed off the syllabus of most undergraduate public law courses degrees by the Human Rights Act, devolution and Europe. It’s also noteworthy that the House of Lords Constitution Committee has never tackled central-local relations, or local government in and of itself, in an inquiry.

Second, it is possible that the PGC is less constitutionally and legally significant than at first sight it appears to be. In 1967, Maud committee report did consider the constitutional implications of its recommendation to create a PGC. The report sought to reassure the ‘fun-loving guys’ in local government: ‘the modification we propose would not mean that local authorities would cease to be subject to the rule of law. The supremacy of Parliament is not in question. Nor are we advocating the abolition of the doctrine of ultra vires for local authorities would still have to work within the statutes. They would continue to have statutory duties and limitations imposed on them and permission powers granted to them, and their governmental and coercive powers would be regulated by law’ (para 284). Some commentators, looking at the version of a PGC contained in the Localism Act 2011, have sought to downplay the scope of councils’ room for manoeuvre. For example, Tim Kerr QC argues that ‘the usual public law constraints (rationality, relevant considerations, procedural fairness, disregard of irrelevant considerations)’ would apply ‘to exercise of the power of general competence, even though an “individual” in the private sphere is not subject to them’. Sections 2 and 3 of the 2011 Act also needs to be considered: the former defines ‘boundaries of the general power’ (in particular, that the PGC doesn’t override express prohibitions of local government action contained in the statute book) and the latter ‘limits on charge in exercise of general power’. To this can be added the controlling force of ‘constitutional legislation’ such as the Human Rights Act 1998 and the Equality Act 2010. Clearly, the 2011 Act does not do away with the idea the local authorities are creatures of statute subject to the constraints of ultra vires.

The truth of the matter is that we do not yet know what councils will do with the PGC. In June 2011, the House of Commons Communities and Local Government select committee, in their report on localism, called on the ‘Government work with the Local Government Association to set out examples of specific ways in which the general power of competence will enable local authorities to extend their role beyond that conferred by the well-being powers.

However the power is used something of significance affecting the rule of law has been brought about by s 1 of the Localism Act. As Laws J explained in Fewings, ‘The rule [that any action by a public body must be justified by positive law] is necessary in order to protect people from arbitrary interference by those set in power over them’. Section 1 is ‘positive law’ but of such breadth that it looks as if it will largely be down to the political constitution to shape its use; that, at least, is the Government’s goal. Whether a revitalised local politics is up to the job remains to be seen.

Andrew Le Sueur is Professor of Public Law at Queen Mary, University of London and co-convenor of the UK Constitutional Law Group.

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