Tag Archives: Localism Act 2011

John Stanton: The road from Gettysburg. Are we nearly there yet?

johnLast Friday, much was made of the 50th anniversary of John F Kennedy’s assassination in Dallas, 22 November 1963. The 35th President of the United States, ‘JFK’ oversaw, inter alia, the Cuban Missile Crisis, the early days of the Space Race and played a key part in America’s ongoing relations with the Soviet Union. It is only fitting, therefore, that his untimely and brutal demise be respected half a century down the line. Whilst not necessarily of comparable significance, however, last week also saw another key anniversary for the US Presidency. 19 November marked the 150th anniversary of Abraham Lincoln’s famous Gettysburg Address and it is on this that I focus here.

By no means the longest speech of Lincoln’s presidential career, the Address, delivered amidst the toils of Civil War, was key in reaffirming the importance of equality. It is the last few words of that speech, however, that have perhaps endured with greatest prominence:

‘… we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth’ (Abraham Lincoln, Gettysburg Address, 19 November 1863)

Since that time, in the UK as well as in America, the importance of giving individuals democratic opportunity to have their say and to select representatives has become an indelible feature of executive and legislative processes. With this in mind, it is the purpose of this piece briefly to consider the extent to which ‘government of the people, by the people, for the people’ can adequately be said to apply in the UK system 150 years after Lincoln’s famous statement.

Elections and referenda are perhaps the most widely prominent ways in which citizens have the opportunity to get their views across and input into a process of decision and policy-making. Issues with both, however, pose serious questions as to the effectiveness of the modern democratic process.

Elections have raised perennial concerns relating to low turnouts, with recent General Elections attracting little more than 60 – 65% of the UK population, and I am far from the first to note the consequent effect this can have in terms of appropriate representation. Disenchantment, disengagement and general apathy are often cited as contributory reasons behind such poor attendance at the ballot box, with citizens often feeling that their votes have no effect on the outcome or the process.

In a somewhat different vein, referenda seem to be rather in fashion at the moment. Little more than two and a half years after (just 42% of ) the country turned out to decide on a change to the Alternative Voting System, attention this last week has focused on the referendum due 18 September 2014 as regards Scottish Independence, and wider governmental deliberations have considered in recent times the potential for a referendum in 2017 relating to ongoing membership of the European Union.

At the local level as well, this mechanism for public consultation has a broad base. The Localism Act, for example, makes provision for referenda in three different instances, adding to the opportunities that exist elsewhere. As Baroness Hanham noted during Localism Bill’s progression through the Lords and just a month prior to Royal Assent,

Not only are there the council tax referendums, there are the right-to-build referendums and the neighbourhood planning referendums. Those complement the provisions for referendums which are already open to councils to carry out on governance. Any council may carry out parish polls and informal polls which are to do with its services and functions. (Baroness Hanham, HL Deb 10 October 2011, vol 730, col 1412).

In terms of legal and political foundations, therefore, referenda enjoy a certain prominence in the UK system. Though useful in gauging public opinion, however, their potential role as a vehicle for citizen-led governance is perhaps countered too greatly by the fact that decision and policy makers enjoy the luxury of framing the terms of the question put to the public vote and are, thereafter, not bound by its result.

On the interpretation, therefore, that Lincoln’s words allude to according free and equal citizens democratic opportunity to involve themselves in and lead forward governance and decision-making affecting their daily lives, the extent to which this can be said to ring true in the UK 150 years later is, to say the least, rather questionable. Elections fail to attract a sufficiently significant proportion of the country, and referenda – whilst very much in favour at the moment – seem to offer democratic opportunity on government’s own terms.

‘Government of the people’ – yes. ‘Government for the people’ – perhaps. ‘Government by the people’ – not really.

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

Suggested citation:  J. Stanton, ‘The road from Gettysburg. Are we nearly there yet?’  UK Const. L. Blog (28th November 2013) (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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