The Balance of Power: Central and Local Government - Communities and Local Government Committee Contents


6  A constitutional solution?

Local government and constitutional renewal

124.  During our visit to Denmark and Sweden, local and central government politicians emphasised the importance to local government of having its position protected in a constitution. The position in England is of course different in that we do not have a written constitution. It is, though, possible to identify certain legislation which is regarded as 'constitutional', such as that which created the devolved Scottish Parliament and Welsh Assembly. Fundamental change to either the Scotland Act or the Government of Wales Act would require the consent of the people—in Scotland and Wales—directly affected. Currently, legislation affecting local government is not treated as constitutional legislation.

125.  A number of our witnesses have argued in favour of a constitutional settlement for local government utilising 'constitutional' legislation. They see benefits in terms of a stable framework in which to operate, and greater clarity about local government's local place-shaping role. Above all, the legislation would be something for local government to deploy if it felt that central government was encroaching too heavily on its turf. As Lancashire County Council put it, "the ebb and flow of the local government debate over time points to a need finally to formalise the role of councils in the national political settlement."[168] It might also help the media and public better understand the distinction between local and central government responsibilities. There are two current documents which could conceivably form the basis of constitutional legislation for local government: the Central-Local Concordat and the European Charter of Local Self Government, both of which we have already mentioned in an earlier chapter.

The Central-Local concordat

126.  The Central-Local Concordat was signed by the then Chairman of the Local Government Association (LGA), Sir Simon Milton, and the Secretary of State for Communities and Local Government on 12 December 2007. In its evidence to the Committee, CLG states that the Concordat has "helped clarify respective roles and responsibilities of central and local government", and claims that the Concordat is "a powerful statement of principles for how central and local government should work together to serve the public."[169] An LGA press announcement at the time of the signing termed the Concordat "ground breaking".[170]

127.  In principle, the Concordat appears to go a long way towards redressing the balance of power between central and local government. For example, it recognises that central and local government are "partners", that councils "have the right to address the priorities of their communities [...] and to lead the delivery of public services in their area and shape its future without unnecessary direction or control" and that the success of Local Area Agreements depends upon "major changes in behaviour and practice from central government departments, their agencies, government offices, councils and local partners."[171] It even commits local and central government to "work towards giving councils greater flexibility in their funding" and "to increase local democratic accountability of key public services, in particular the police and health services."[172]

128.  The problem is that nothing much appears to have changed as a result of the Concordat. None of our local council witnesses felt that the Concordat had made any difference to central-local relations. Professors George Jones and John Stewart felt that the Concordat had "disappeared without trace."[173] Even one of the signatories, the LGA, appeared rather disillusioned. Councillor David Shakespeare OBE, Vice Chair of the LGA and Leader of the Conservative Group, told us that "the concordat was signed with a flourish, but if I got out my microscope and looked at the outcomes, they would be very tiny indeed."[174] Buckinghamshire County Council, echoing the concerns we highlighted earlier in the report that CLG did not always take other government departments with it, commented that "in reality it appears that the concordat is really between local government and CLG. Other government departments appear to have little regard to its provisions."[175] Certainly, during oral evidence, we were not completely convinced that the Health Minister was aware of the Concordat. When we asked her for specific ways in which the central-local concordat had affected the work of her Department, she had to clarify, "so that I properly understand the question", that we were asking "for specific examples of the relationship between health and local authorities."[176]

129.  A number of witnesses, including Birmingham City Council,[177] the Local Government information Unit (LGiU),[178] Professors George Jones and John Stewart[179] and Martin Willis, Director of the Institute of Local Government Studies at the University of Birmingham,[180] have called for the Concordat to be put on a statutory basis, to turn its good intentions into statutory facts.

The European Charter of Local Self-government

130.  The European Charter of Local Self-government introduces the principle of "proportionality". Fundamental to both the Council of Europe and the European Union—as with the related principle of "subsidiarity"—is the idea that due consideration needs to be given to the appropriate tier of government at which a decision should be taken, and that upper tiers of government should not interfere in matters that are best decided at a lower level. Article 4 (2) of the Charter asserts that "local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority". Article 8 (2) asserts that "an administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles", whilst article 8 (3) asserts that "administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect".

131.  Such provisions could work to protect the autonomy of local government, allowing it space to undertake a local leadership "place-shaping" role. Certainly, some local authorities recognise its potential. Telford and Wrekin Council, for example, observed in its written evidence that "the Inquiry has a major opportunity to 'mainstream' the Charter and use it as a driver of change and a means to clarify and define the way forward in central/local relations […]", highlighting in particular "the concept of subsidiarity" that "should be at the heart of any debate about the nature of central/local relationships and the promotion of a new local democracy."[181]

132.  It is not, however, entirely clear how the prescriptive nature of the English system of local government complies with the Charter. Jeremy Smith, Secretary-General of the Council of European Municipalities and Regions (CEMR), was of the view that the Charter "has hardly been in the thinking of government since they ratified it. It was put on the shelf."[182] As with the Concordat, the suggestion is that in the absence of any statutory obligation—the Charter does not have any of the enforcement mechanisms of the European Convention on Human Rights, or its statutory entrenchment through the Human Rights Act—such documents are a constitutional dead letter. The Government appears to have created a constitutional settlement, but in practice can ignore its strictures with impunity.

Is a constitutional settlement important?

133.  Does the lack of constitutional protection for local government in England really matter? Witness opinion was divided on this point. Whilst a number of witnesses saw a strong case for putting the Concordat on a more formal, statutory basis, for others it was not a priority. Local council witnesses from Birmingham City Council and Manchester City Council, for example, wanted additional powers to enable them to make an immediate difference "rather than going through a period of constitutional change."[183] Sir Michael Lyons made clear in his report that he was "not seeking to enshrine the constitutional position of local government in law. Laws and agreements do not necessarily create relationships, and the initial steps towards the developmental approach need to be given time to bed in."[184] Similarly, constitutional expert Professor Vernon Bogdanor argued in his evidence to us that "the main barriers to a new localism are not constitutional, but political and cultural. The achievement of a new localism depends not upon a new constitutional settlement, whatever that may mean, but primarily upon a sea-change in public attitudes."[185]

134.  We recognise the difficulty of achieving a lasting constitutional settlement for local government within the context of a Westminster model. However, we believe that the Concordat and Charter are potentially useful documents that ought to be guiding Government departments' relationships with local government far more obviously than has been the case thus far. Potentially, as Sir Michael Lyons also suggested in his report, a constitutional settlement involving local government could provide impetus and help sustain a substantial shift in the balance of power between central and local government. We recommend, therefore, that the Government introduce 'constitutional' legislation that places the European Charter of Local Self-government on a statutory basis. We consider in the next chapter how this constitutional settlement might be further supported by greater Parliamentary scrutiny.


168   Ev 140 Back

169   Ev 283 Back

170   Local Government Association press release dated 12 December 2007 Back

171   Central-local Concordat 12 December 2007 Back

172   Central-Local Concordat 12 December 2007 Back

173   Ev 133 Back

174   Q 568 Back

175   Ev 211 Back

176   Q 294 Back

177   Ev 125 Back

178   Ev 174 Back

179   Ev 133 Back

180   Q 512 Back

181   Ev 156 Back

182   Q 510 Back

183   Sir Richard Leese, Leader Manchester City Council Q182. Back

184   The Lyons Inquiry, Final Report, (London 2007)Chapter 10 para 41. Back

185   Ev 294 Back


 
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