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TAKING LOCAL GOVERNMENT SERIOUSLY: DEMOCRACY, AUTONOMY AND THE CONSTITUTION

Published online by Cambridge University Press:  10 July 2009

Stephen Bailey  and
Mark Elliott
Stephen Bailey
Affiliation:
Professor of Public Law, University of Nottingham.
Mark Elliott
Affiliation:
Senior Lecturer in Law, University of Cambridge.
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The Cambridge Law Journal , Volume 68 , Issue 2 , July 2009 , pp. 436 - 472
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Copyright © Cambridge Law Journal and Contributors 2009

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References

1 Council of Europe, European Treaty Series No 122 (1985). The provisions are summarised in S.H. Bailey, Cross on Local Government Law, 9th ed. (London 1996), paras. 1–82 et seq. The Preamble includes the proposition that democratically constituted local authorities should possess a wide degree of autonomy with regard to their responsibilities, the ways and means by which they are exercised and the resources required for their fulfilment.

2 See section IV below.

3 Department for Communities and Local Government, Unlocking the Talent of our Communities (London 2008); Cm 7427, Communities in Control: Real Power, Real People (London 2008); Local Democracy, Economic Development and Construction Bill and Business Rates Supplements Bill 2008–09 (currently before Parliament); draft Community Empowerment Bill.

4 M. Loughlin, Local Government in the Modern State (London 1986), p. 186, suggesting that some aspects of the work of local government could be described thus.

5 In section IV.

6 Cm 4298, Local Leadership, Local Choice (London 1999), paras. 1.17–1.18.

7 Cm 6939-I, Strong and Prosperous Communities (London 2006), p. 2.

8 Whether such value is actually ascribed to local democracy is another matter. S. Jenkins, Big Bang Localism (London 2004), pp. 54–6, argues that by 2002 “Whitehall was … awash in double-think”, “suddenly declar[ing] the new localism as holy writ”, notwithstanding the Blair administration's having presided over a “centralist frenzy” in the period from 1997.

9 Cmnd 9797, The Conduct of Local Authority Business (London 1986).

10 J.S. Mill, Considerations on Representative Democracy (New York 1862), pp. 288–9.

11 HM Treasury, Review of Sub-National Economic Development and Regeneration (London 2007), p. 64.

12 M. Lyons, Place-Shaping: A Shared Ambition for the Future of Local Government (London 2007), p. 60.

13 See, e.g., Power: An Independent Inquiry into Britain's Democracy (London 2006), pp. 155–8.

14 See B. Keith-Lucas, Redlich and Hirst, The History of Local Government in England, 2nd ed. (London 1970); J.A.G. Griffith, Central Departments and Local Authorities (London 1966); Sir Norman Chester, The English Administrative System 1780–1870 (Oxford 1981), ch. V; C. Bellamy, Administering Central-Local Relations, 1871–1919 (Manchester 1988); M. Loughlin, Legality and Locality (London 1996); Jenkins, above note 8.

15 Bellamy, above note 14, citing J. Stanyer, Understanding Local Government (London 1976), p. 211 and Rhodes, R.A.W., “Some myths in Central-local relations” [1980] Town Planning Review 270CrossRefGoogle Scholar.

16 Rhodes, above note 15, p. 270.

17 Bellamy, above note 14, p. 2.

18 Ibid., pp. 2, 4.

19 Ibid., pp. 3–4, citing R.A.W. Rhodes, Control and Power in Central-Local Government Relations (Farnborough 1981).

20 D. Wilson and C. Game, Local Government in the United Kingdom, 4th ed. (Basingstoke 2006), pp. 186–7. For further analysis of “power-dependence” see R.A.W. Rhodes, Control and Power in Central-Local Relations, 2nd ed. (Aldershot 1999). This study also argues that previous work focusing on “central-local relations” suggested “a bias towards institutional relationships”; this did not always provide an adequate account of policy systems. “‘Intergovernmental theory’, with its emphasis on fragmentation, professionalization and policy networks is more appropriate” (p. 135).

21 See e.g. Bellamy, above note 14, p. 236, noting the resistance of the Local Government Board to allowing the professional bodies within local government to influence policy: its “constitutional rationale” was that “it could not deal with the professions over the heads of their employers, the local authorities, whose members took the political, and particularly, the financial responsibility for local government”.

22 See section VII.

23 See generally B. Keith-Lucas, The English Local Government Franchise (Oxford 1952). In the 19th century, the main qualification for the local franchise was being a ratepayer; the Representation of the People Act 1918 replaced this by a test based on the occupation of property rather than the actual payment of rates. Universal adult suffrage was introduced as late as 1945 for local elections (Representation of the People Acts 1945 and 1948). Cf. W.I. Jennings' comment that it was “not uncommon to find councillors complaining that they do not do as their electors wish, but as they are ordered by ‘Whitehall’. This is, of course a travesty of the facts. The complaint is most frequently made by representatives of Ratepayers' Associations and other persons who represent the landlord interest. Their policy is the simple one of reducing cost” (Jennings in H.J. Laski et al, A Century of Municipal Progress (London 1935), p. 450).

24 [1925] A.C. 578. See Loughlin, above note 14, ch. 4.

25 Here, employees of a council that wished to act as a “model employer”.

26 This is by no means confined to the relationship with local authorities. In 2008, the British Medical Association proposed an NHS Constitution for England (http://tinyurl.com/cbtvcr) in order, inter alia, to bring about “a marked reduction in the role of politicians in the day-to-day running of the NHS along with a greater role for Parliament in setting standards and relating choices to resources” (para. 6.3). An NHS Constitution has now been adopted (see http://tinyurl.com/8gplsm) but the BMA's proposal that the Secretary of State's role should be limited to setting broad objectives for the NHS, and that there should be a Board of Governors for the NHS and an NHS Executive Management Board, was not adopted.

27 Cf. the nineteenth century debates as to the most appropriate model for administration of the poor law and the promotion of public health (see Keith-Lucas, above note 14).

28 See Bellamy, above note 14, ch. 2.

29 For example, in June 2007, Age Concern claimed that it had identified a “postcode lottery in continuing NHS health care” (http://tinyurl.com/5d3fmz); in April 2007 the Family and Parenting Institute criticised what it regarded as a “postcode lottery” concerning access to health visitors (http://tinyurl.com/5gqlog); and in June 2008, the House of Commons Transport Select Committee endorsed efforts by the Department for Transport to eradicate a perceived postcode lottery in the allocation of disabled parking badges (HC475, The Blue Badge Scheme (2007–08), pp. 7–8). In each case, local variations in practice were perceived in negative terms.

30 K. Banting and S. Corbett, Health Policy and Federalism (Montreal 2002).

31 K. Woods, A Critical Appraisal of Accountability Structures in Integrated Health Care Systems (Glasgow 2002). See further J. Järvelin, Health Care Systems in Transition (London 2002).

32 E.g. the King's Fund found that while people generally resent “large differences in the way in which different local authorities manage long-term care”, there is some evidence of acceptance of “the case for some local variability in a service led by local government”. See The Future of Care Funding: Time for a Change (London 2008), p. 11.

33 Above note 8, p. 126.

34 See further H. Tam, “The Community Roots of Citizenship” (2001) 72 The Political Quarterly 123 (supplement), pp. 130–1.

35 Above note 12, p. 58. This sort of thinking may help to explain why the public appears willing to tolerate – if not celebrate – the policy divergence which exists, even in relation to front-line public services such as health care and personal social services, within the UK post-devolution (on which see M. Keating, “Policy Convergence and Divergence in Scotland under Devolution” (2005) 39 Regional Studies 453).

36 On the difficulties of the Thatcher era see Loughlin, above note 14.

37 C. Rallings, et al, “Trends in Local Elections in Britain, 1975–2003” (2005) 31 Local Government Studies 393, 402; Wilson and Game, above note 20, p. 301.

38 See e.g. the argument that one of the reasons “which made New Labour reluctant to give additional powers or credence to directly elected local government” was that “by 1997 much of local government was a bastion of Old Labour, run by activists who had kept the faith alight through 18 years of despair” (A. Coulson, Review Article, (2004) 30 Local Government Studies 110).

39 See e.g. the tensions of the 1920s involving Poplar Borough Council (B. Keith-Lucas, “Poplarism” [1962] P.L. 52 ); Clay Cross UDC in the 1970s (C. Harlow, [1976] P.L. 116); and Liverpool and Lambeth (Loughlin, above note 14, pp. 185–202).

40 E.g. urban v. rural; districts v. counties in two tier areas.

41 Replacing separate associations for county councils, metropolitan authorities and district councils. There are separate Associations for Wales and London.

42 Successively the Local Government Board, the Ministry of Health, the Ministry of Housing and Local Government, the Department of the Environment, the Department of the Environment, Transport and the Regions, the Department for Transport, Local Government and the Regions, the Office of the Deputy Prime Minister and the Department of Communities and Local Government.

43 E.g. the departments responsible for culture, education, elections, the environment, social services and transport.

44 See, e.g., the somewhat sharp comments of W.I. Jennings, above note 23, pp. 451–4. Compare the persistent criticisms of “unjoined up” policy-making among central departments noted in J. Downe and S. Martin, “Joined up policy in practice? The coherence and impacts of the local government modernisation agenda” (2006) 32 Local Government Studies 465.

45 Bellamy, above note 14, pp. 27–35.

46 See section V below.

47 E.g. the assignment of particular discrete income streams.

48 Bellamy, above note 15, pp. 57–60; Sir Josiah Stamp in Laski, above note 23, pp. 382–6.

49 Wilson and Game, above note 20, pp. 219–22.

50 CLG, National Statistics, Local Government Financial Statistics England No. 18, 2008: www.local.communities.gov.uk/finance/stats/lgfs/2008/lgfs18/index.html, p. 31; CLG/National Statistics, Local Government Finance Key Facts: England (London 2008). Between 2005–06 and 2006–07, revenue support grant fell from £26.6bn to £3.3bn largely as the result of a significant switch of education funding to a new special grant.

51 The most visible mechanism here is the capping of council tax and precepts under the Local Government Finance Act 1992, Part 1, Ch. 4A, a power still exercised by the Labour government: see e.g. H.C. Deb. vol. 478 cols. 29–30WS (26 Jun 2008).

52 Strictly within the statutory limits: Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] A.C. 1014.

53 Which normally either must be followed or reasons given why it is not: R. (Khatun) v. Newham L.B.C. [2004] EWCA Civ 55, [2005] Q.B. 37, at [47].

54 On comprehensive performance assessment, see further below at p. 467. See generally Bailey, above note 1, ch. 9. In some cases the requirement is cast as a duty imposed directly on the local authority by the legislation rather than as the result of a ministerial direction (e.g. duty to prepare plans for the purpose of town and county planning).

55 See Lord Woolf et al, De Smith's Judicial Review, 6th ed. (London 2007), pp. 314–6. Accordingly, in the 1960s local education authorities could not, prior to the Education Act 1976, be forced to adopt the comprehensive principle in the organisation of secondary schools.

56 See e.g. removal of detailed controls over the appointment of officers and committees by the Local Government Act 1972; Part 1 of the Local Government, Planning and Land Act 1980 (this removed a large number of controls); a number of projects to review and where appropriate remove consent regimes (see Office of the Deputy Prime Minister, Consent Regimes: Reducing Unnecessary Bureaucracy (London 2006)).

57 E.g. requirements to produce plans: Local Authorities' Plans and Strategies (Disapplication) (England) Order 2005, S.I. 2005/157.

58 Which carries less weight than statutory guidance, although the difference is not necessarily great: R. v. Islington L.B.C., ex p. Rixon (1998) 1 C.C.L.R. 119.

59 See Wilson and Game, above note 20, pp. 180–2; www.lga.gov.uk.

60 Above note 9.

61 Above note 12.

62 Electoral Commission, England and Wales Local Elections 2008 – Summary Report (London 2008) at 6, http://tinyurl.com/dfmy25.

63 Electoral Commission, Election 2005: turnout (London 2005), p. 16.

64 Above note 6, para. 1.18.

65 Hayward et al, The 2006 Local Elections and Electoral Pilot schemes: Report to the Electoral Commission, p. 17.

66 Ibid., p. 23.

67 Indeed, this is a matter which could be fully addressed only by detailed empirical research concerning the attitudes of the electorate.

68 The position in London is different, where the Greater London Authority adds a further layer to local government.

69 I. Leigh, Law, Politics, and Local Democracy (Oxford 2000), p. 210.

70 Electoral Commission, The Cycle of Local Government Elections in England (London 2004), p. 13.

71 Participation being a condition precedent to true responsiveness.

72 At any given time, typically around one-third of councils are “hung”. See F. Gains, The Implementation of New Council Constitutions in Hung Authorities (London 2005), p. 6.

73 Local Government and Housing Act 1989, s. 15.

74 Local Government Act 2000, s. 24.

75 Cm 4298, Local Leadership, Local Choice (London 1999), para 1.13.

76 Cm 4014, Modern Local Government: In Touch with the People (London 1998), ch. 4.

77 Above note 65, pp. 80–3.

78 Above note 7, p. 60.

79 Ibid., loc. cit.

80 See section VI.

81 The position after the creation of nine further unitary authorities as from 1 April 2009: see http://tinyurl.com/prnw3a.

82 Cm 6939, Strong and Prosperous Communities (London 2006), p. 55.

83 Local Government and Public Involvement in Health Act 2007, Part 2.

84 E.g. 44 per cent of the local elections held in England in 2007 took place under the election by thirds system. See Electoral Commission, Local government elections in England 2007 (London 2007), p. 6.

85 J. White, “From Herbert Morrison to Command and Control: the Decline of Local Democracy and its Effect on Public Services” (2005) 59 History Workshop Journal 73.

86 Above note 65, p. 18.

87 2007 Post-Election Survey – Local Elections in England: Report to the Electoral Commission, p. 18.

88 Above note 13, text to note 117.

89 Above note 69, p. 14.

90 “Central-Local Relations since the Layfield Report” in P. Carmichael and A. Midwinter (eds.), Regulation Local Authorities: Emerging Patterns of Central Control (London 2003), p. 26.

91 See generally D. Butler et al, Failure in British Government: The Politics of the Poll Tax (Oxford 1994).

92 Local Government Finance Act 1988.

93 The Downing Street Years (London 1993), p. 648.

94 T. Travers, “Finance” in J. Stewart and G. Stoker (eds.), Local Government in the 1990s (Basingstoke 1995), p. 13.

95 Cmnd 9714, Paying for Local Government (London 1986), p. vii.

96 In the 1990 English local government elections, the Conservative Party, outside London, did badly across the board, and made gains (and modest ones at that) only in areas with the very highest spending Labour councils, and lost votes even in areas with the lowest-spending Conservative councils. If, as Butler et al, above note 91, p. 162, put it, “the best the party could show outside London was a 2.2 per cent increase in its vote in ‘loony’ [Labour] authorities”, this was hardly a ringing endorsement of the notion that the poll tax would cause people to cast their votes on the basis of the efficiency of local councils.

97 Above note 91, p. 259.

98 Ibid., pp. 259–60.

99 Ibid., p. 284.

100 See Local Government, Planning and Land Act 1980; Local Government Finance Act 1982.

101 Local Government Act 1988.

102 See further our discussion, above, of factors influencing central-local relations.

103 See, e.g., the Labour government's use of statutory powers, in the mid-1970s, to require local authorities, in certain circumstances, to shift from grammar to comprehensive schools, and the Conservative government's procurement and use of statutory powers, in the mid-1980s, to reign in what it considered to be profligate councils. See further section III.

104 See, e.g., the very substantial changes introduced this decade, via the Local Government Act 2000 and the Local Government and Public Involvement in Health Act 2007, and those which are proposed in the near future (above note 3).

105 See, e.g., the introduction of the community charge and its replacement with the council tax; and the establishment of the compulsory competitive tendering regime and its replacement with the Best Value system.

106 E.g. the introduction of compulsory competitive tendering, as well as being a financially very significant development, implied a radical re-conceptualisation of the role of local councils, turning them, in important respects, from service providers into service commissioners.

107 The Government of Wales Act 2006 reflected changes to the Welsh devolution settlement recommended by the Richard Commission (which had been established by the Welsh Assembly): see Report of the Richard Commission (Cardiff 2004).

108 Scottish Parliament, 6 December 2007, cols. 4136–7.

109 H.L. Deb. vol. 698 col. WA145 (31 January 2008).

110 This point is developed below at pp. 470–2, where we discuss concordats and conventions pertaining to central-devolved relations.

111 The position in Northern Ireland, of course, is more complex.

112 According to K. Young et al, In Search of Community Identity (Joseph Rowntree Foundation, 1996), who surveyed community identity in the shire counties of England in the mid-1990s, “the largest group [of people] have no sense of attachment to any of their neighbourhood/village, their district or their county. Nearly one in three fall into this category.”

113 For example, in England in the 1970s some new county-level authorities (such as Avon and Humberside) were created with boundaries dictated by considerations of administrative convenience rather than respect for local mores. These authorities have since been abolished. See further Communities in Control, above note 3, para. 4.25.

114 P. John, “Strengthening Political Leadership? More than Mayors” in G. Stoker and D. Wilson (eds.), Local Government into the 21st Century (Basingstoke 2004), p. 47.

115 While lower than for general elections, these figures are higher – substantially so in respect of the elections to the Scottish Parliament – than those for recent local elections.

116 See now Government of Wales Act 2006.

117 Above note 107, p. 25.

118 Electoral Commission, The National Assembly for Wales Elections 2003: The Official Report and Results (London 2003), p. 37.

119 Cm 5240, Memorandum of Understanding (London 2001), p. 8.

120 See R. Rawlings, “Concordats of the Constitution” (2000) 116 L.Q.R. 257.

121 Above note 91, p. 303.

122 Strong and Prosperous Communities, above note 7; Communities in Control, above note 3.

123 Above note 7, p. 4.

124 Ibid., p. 4.

125 Ibid., loc. cit.

126 Ibid., p. 5.

127 Ibid., para. 1.11.

128 Now the Department for Business, Enterprise and Regulatory Reform.

129 Cl. 1.

130 Part 1, ch. 2. Further proposals are to be included in a draft Community Empowerment Bill (see http://www.commonsleader.gov.uk/output/page2669.asp). This is “planned to include measures to enhance local democracy and empower communities, amend politically restricted posts, enable remote voting for councillors, introduce voting incentives, modernise provisions around parish councils, remove the barriers to directly electing mayors and recognise the contributions of alderwomen and local people through reform of honorary and hereditary freedoms” (ibid).

131 Note the comment at para. 1.7 of the 2006 White Paper, above note 7, that “the next stage of public service reform has to be driven from below if improvements are to continue and local needs and aspirations are to be met”.

132 Ibid., para. 1.11.

133 Above note 12. Lyons Inquiry documents are archived at www.webarchive.org.uk/tep/15454.html.

134 Lyons Inquiry into Local Government: Interim Report and Consultation Paper (London 2005); National prosperity, local choice and civic engagement: a new partnership between central and local government for the 21st century (London 2006).

135 Above note 12, pp. 1–2.

136 Ibid., pp. 361–70.

137 Ibid., p. 354.

138 Ibid., p. 358.

139 Ibid., p. 359.

140 Ibid, loc. cit. Proposals had been made for a Parliamentary committee or for Parliamentary involvement through House of Lords reform.

141 Or maybe “contractual” is used here in a rhetorical rather than strictly legal sense; such usage is misleading and should be avoided.

142 See above, text to notes 78 and 79.

143 Electoral Commission, The Cycle of Local Government Elections in England (London 2004), p. 21.

144 Above note 7, p. 60.

145 Sections 32–34.

146 See, e.g., letter dated 25 July 2007 from Department for Communities and Local Government to the Chief Executive of Cumbria County Council rejecting proposal for a single unitary authority in Cumbria, http://tinyurl.com/2vn2to.

147 HC602-I, Transport, Local Government and the Regions Select Committee, How the Local Government Act 2000 is working (2001–2), vol. 1, p. 13.

148 See section 64, which inserts sections 33A-I into the Local Government Act 2000.

149 Above note 3, paras. 5.17. Provisions concerning this are to be included in a draft Community Empowerment Bill (see http://www.commonsleader.gov.uk/output/page2669.asp).

150 Cf. Jenkins, above note 8, ch. 8, who advocates much wider use of elected mayors.

151 Above note 3, paras. 4.23.

152 We note in passing that the utility of these powers has been questioned because their conferral has not been accompanied by additional resources. See Department for Communities and Local Government, Formative Evaluation of the Take-Up and Implementation of the Well Being Power Annual Report 2006 (London 2006), p. 31.

153 Local Government and Public Involvement in Health Act 2007, s. 77, amending Local Government Act 2000, s. 1.

154 2007 Act, s. 176.

155 2007 Act, Part 5, Ch. 1.

156 Over £4bn to the new Area Based Grant and £1bn to Revenue Support Grant: CLG, Development of the new LAA framework Operational guidance 2007 (London 2007), pp. 31–37.

157 2007 Act, ss. 129–35, sch. 6.

158 Cited by A. Arden and L. Johnson, Annotations in Current Law Statutes Annotated 2007, pp. 28–172.

159 Above note 7, paras. 3.12–3.14.

160 Para. 336.

161 2007 Act, Part 9.

162 2007 Act, Part 10.

163 CLG, DWP, DIUS, BERR, Delivering economic prosperity in partnership: The crucial role of the new local performance framework (London 2008).

164 Cm 7227, HM Treasury, Meeting the aspirations of the British people 2007 Pre-Budget report and Comprehensive Spending Review.

165 CLG et al, Delivering economic prosperity in partnership (London 2008), p. 16.

166 Ibid. There were formerly over 100 targets for local government.

167 See DCLG, Development of the new LAA framework: Operational guidance 2007 (London 2007); Earlier forms of Local Area Agreement had been in the course of development for a number of years; LAA Annual Review 2008/09 (CLG, 2008). The 2007 Act provides a legislative structure: see above.

168 Education Act 2005, s. 102; Childcare Act 2006, s. 1.

169 This was developed out of the Best Value regime, and was “extremely crude” in that it accorded “a large, multi-service organisation a single adjectival or star rating” (excellent, good, weak, poor/one to four stars, in successive versions): Wilson and Game, above note 20, pp. 166–7. There was also evidence that it did lead to improved standards: see D. Turner and P. Whiteman, “Learning from the experience of recovery: the turnaround of poorly performing local authorities” (2005) 31 Local Government Studies 627.

170 CSR 2007, above note 164, p. 5.

171 Above note 164, p. 8. See further http://www.audit-commission.gov.uk/caa/index.asp.

172 CLG Press Notice, 21 March 2007 (http://www.communities.gov.uk/news/corporate/government-welcomes-lyons).

173 Rating (Empty Properties) Act 2007; Business Rates Supplements Bill 2008–09.

174 See, in particular, Article 3(1) and 4(3).

175 We note in passing that no attention is given to the constitutional position of local government in the Draft Constitutional Renewal Bill.

176 Above note 85.

177 Above note 13, pp. 159–60.

178 HM Government/Local Government Association, Central-Local Concordat (London 2007).

179 See, e.g., the concordats pertaining to the relationship between the Scottish Executive and central government: www.scotland.gov.uk/About/concordats.