UK Constitutional Law Association

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John Stanton: (D)evolution for Local Government

Editors’ note: This post is based upon a conference paper presented at the UKCLA conference ‘Debating the Constitution after the General Election’ held at the University of Manchester on 24  June 2015.

John StantonDevolution has, as we know, been one of the central themes at this year’s General Election. One aspect of that devolution that has not seen so much discussion, however, is the decentralisation of power to local councils. It is on this that I focus.

Now, the decentralisation of power to local authorities is a familiar governmental objective. Government after government seems to enter power on a wave of promises to decentralise power, engage localities and invigorate local democracy. These are invariably based on concerns that those that have come before have fostered a culture of centralisation, where local authorities have been bound constantly by restrictive and often bureaucratic constraints at Whitehall. The fact that these promises are made time and again, however, speaks volumes for the success with which their objectives are achieved. Indeed, research shows that despite various attempts and promises in recent years, councils continue to lack power and autonomy and are unnecessarily constrained by Whitehall. Localism, it seems, is paradoxically centralist in nature. Reasons underlying this problem are oft discussed and are potentially numerous. One such reason relates to the position that local government currently occupies in the UK constitution and the role that it there places.

Explaining further, the purpose of local government is, in one manner, extremely simple. It is there as a democratic institution to provide governance, leadership and decision-making to local areas, carrying the mandate of local people, and to provide services on a micro level to all within those areas. It is, in this sense, government on a local level. A difficulty arises, however, when we consider the nature of local government. On this, Martin Loughlin explains:

‘In law, local authorities are statutory corporations which are dependent on powers given to them by statute for their ability to act; the doctrine of ultra vires exists to ensure that they keep within their statutory powers and are accountable to the courts; and central departments of state possess a range of powers enabling them to influence the manner in which local authorities conduct their affairs. Furthermore … local government structures and functions have been periodically altered to suit the requirements of central government’ (Local Government in the Modern State (London: Sweet and Maxwell, 1986), pp. 1 – 2).

The premise is not flawed so much as the consequences of it. Local government’s existence as a ‘statutory corporation’ means that, due to the broader constitutional framework within which it operates, it will forever be inferior to centralised institutions. This inferiority brings with it the potential for manipulation and overly bureaucratic centralised supervision and instruction; a top-down approach with councils acting as mere satellites of the centre. Its position as a creature of statute, therefore, thus constantly at the mercy of centralised policy and law-making, means that local government becomes something of a battleground between the need and desire to govern, lead and represent local people appropriately on the one hand, and the ability and competence to fulfil that within the boundaries set by the centralised institutions on the other. Many academics and political thinkers have discussed and pondered appropriate solutions to this dilemma over the years. Does the Government’s new Cities and Local Government Devolution Bill hold an answer?

Cities and Local Government Devolution Bill

The vision was set out by George Osbourne a week after the election. Cities across the north of England could benefit from increased powers over transport, housing, planning, policing and their local economies alongside the potential introduction of directly elected mayors, overseeing combined authorities in those areas alongside a cabinet, made up of local council leaders. The idea here is that the combined authorities and the mayors would create a new level of regional government in cities and their surrounding areas, thus holding the potential for greater power and autonomy, including control over a larger pot of money than individual councils.

The realisation of this vision in the Bill itself seems to cast the net even wider than was initially expected. Acknowledging, as the Local Government Association (LGA) points out in its briefing on the Bill’s second reading, that ‘non-metropolitan areas account for half of England’s economy and population’ (LGA, 2015), the Bill’s clauses do not limit themselves to metropolitan areas but apply also to the non-metropolitan counties and districts. In short, any combined authority – so created under the Local Democracy, Economic Development and Construction Act 2009, including the five existing authorities in the north – can go in for one of these directly elected mayors and the powers that can come with that.

The powers themselves are also broad, potentially covering local matters from transport and policing to planning, regeneration and economic development. Indeed, Lord Mckenzie noted during the Bill’s second reading that

‘the Bill is a blank canvas … it could, with agreement, include devolution to a combined authority of seemingly any local authority function and any public authority function – including that of Ministers and government departments – exercisable in relation to the authority’s area’ (Hansard HL Deb, 8th June 2015, col. 654).

It is the nature of the government’s attempt at local government devolution, however, that at this point sparks interest and on which the rest of this piece focuses.

A chief – and common – complaint of central government’s relationship with local government is that it has been inherently top-down in approach. Local authorities could generally only exercise powers set out by the centre and in the manner there prescribed, often amid increasingly limited financial resources. Decentralisation and local invigoration was always on central terms and invariably accompanied by a ‘one size fits all’ mantra. There has, however, been an attempt to break away from this approach in the new Bill – Osbourne says that the new model will not be imposed on anyone, whilst the Bill itself stipulates that a directly elected mayor can only be created in respect of one of these combined authorities where the relevant and ‘appropriate authorities’ have submitted such a proposal. At the very least, the authorities must consent to a mayor.

In its passage through Parliament, the Bill is being framed as an enabling act, creating the legal framework for ‘deals’ between central government and localities on the basis of which the nature of the devolution can be negotiated and agreed. In this sense, it is promoted as a turn away from the ‘one size fits all’ approach, calling time on Whitehall’s insistence that local government conform to a model set out at the centre. In theory, this fresh attempt at decentralisation is welcome. Past discussions exploring how local government might establish a stronger position in the UK constitution have included consideration of a settlement between councils and Whitehall of a kind enjoyed by the regional authorities in Scotland, Wales and Northern Ireland (see, for instance, S Bailey and M Elliott, ‘Taking local government seriously: democracy, autonomy and the constitution’ (2009) 68(2) Cambridge Law Journal 436). Though such discussions have also acknowledged fundamental differences between local government and these devolved institutions – legal status and governmental attitude in their regard, to name just two – the idea of negotiating devolution with councils rather than simply imposing it on centralised terms, is one that could hold potential and mean that they enjoy greater individual autonomy.

But let us not get too carried away … There are a number of concerns with the Bill as it stands and which could, if not clarified, lead to a central-local relationship defined by ‘more of the same’.

Firstly, it is unclear what options local authorities have with regards to organisational structures accompanying this proposed devolution. When I say unclear, mixed messages have emerged concerning whether or not models other than directly-elected mayors will be accepted. When Osbourne set out the policy, he noted that power would only be devolved to those councils opting for one of these mayors. By contrast, Lord McKenzie noted in the Bill’s Second Reading that

‘I think we are clear that the Bill does not appear to make it a precondition that the combined authority must have an elected mayor in order to gain the additional functions covered in the draft legislation, yet the rhetoric of Ministers, particularly the Chancellor, has suggested otherwise’ (Hansard HL Deb, 8th June 2015, col. 656).

As Lord McKenzie went on to note – and the point is fairly made – there should be more than one model available to those combined authorities receiving a greater devolution of power; councils should have the options to choose what is best for them and for their local people. This is echoed by the LGA which offers a number of possible alternatives (LGA, 2015). Indeed, concern that a directly elected mayor will be the only option available to combined authorities seeking devolution is exacerbated when previous attempts at introducing such mayors are also considered – of the 55 referenda held on the issue since 2001, 37 rejected their introduction.

Connected with this are further concerns – voiced in the House of Lords – that a single, directly elected mayor being ultimately responsible for so much could prove a challenge for effective accountability. Whilst delegation may be inevitable given the workload, there is a ‘need to think very carefully about running policing, social care and health, strategic planning, housing, skills, transport, economic development and regeneration all through one person’ (Hansard HL Deb, 8th June 2015, col. 659).

Another issue is presented by the Bill affording the Secretary of State the power to bring about any devolution; a concern also highlighted by the LGA (LGA, 2015). Whilst this is perhaps an obvious way in which central government can fairly be represented in any devolution negotiations with councils, care must be taken in ensuring that the powers are not used too much to impose central desires on councils. Problems in the past, with attempts at decentralisation, have often come down to the retention of power in Whitehall and the inclination of those at the centre to be overly prescriptive with local matters. Indeed, the Localism Act 2011 itself introduced a substantial number of new powers for the Secretary of State. The government, at this point, needs to be careful not to let this continue and to expatiate more clearly how far the Secretary of State can go in deciding the powers to be devolved to councils and the structures that those councils should adopt as part of that devolution. As Lord McKenzie has said, the constitutional significance of the Bill ‘depends on how the raft of powers … that accrue to the Secretary of State are deployed in practice’ (Hansard HL Deb, 8th June 2015, col. 654).

Concluding remarks

There are other issues, of course: how political parties will be balanced in any new local authority structures; how far the widespread encouragement of combined authorities will affect the clarity of local government organisation in England; and how smoothly and successfully any changes will be introduced and welcomed. The length of this piece has not permitted exploration of these equally pressing concerns.

Ultimately, whilst the new Bill is in one sense to be welcomed, holding the potential as it does for a form of devolution that could work for local councils, we must wait to see if this will be fully realised. At the root of local government’s problems in recent years is the attitude displayed at the centre towards the role that councils play in the broader constitution. That attitude has been defined by a reluctance to ‘let go’ of power, to impose bureaucracy and prescribe, often in painful detail, the way in which local authorities should act. Though this new Bill could signify a change in practice, only time will tell if the underlying attitude is finally shifting away from the top-down, one-size-fits-all approach that has typified the central-local relationship for too long.

In the House of Lords, Lord Heseltine hailed the new Bill as an ‘evolution’ for local government (Hansard HL Deb, 8th June 2015, col. 663). This is perhaps a bit dramatic, particularly at this early stage. The potential is there, yes, but there are unresolved issues and concerns which will need clarifying and a long-held attitude of ‘centralised localism’ that needs to be seen to be dispelled.

 Dr John Stanton is a Lecturer at The City Law School, City University London

(Suggested citation: J. Stanton, ‘(D)evolution for Local Government’, UK Const. L. Blog (15th Jul 2015) (available at https://ukconstitutionallaw.org/))

One comment on “John Stanton: (D)evolution for Local Government

  1. Pingback: Public Law Update #3: Devolution within England — The Cities and Local Government Devolution Bill | Public law for everyone

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