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
