UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 592-iii

House of commons

oral EVIDENCE

TAKEN BEFORE THE

Political and Constitutional Reform Committee

Prospects for codifying the relationship between central and local government

Thursday 2 December 2010

Lord Bichard, SIR MERRICK COCKELL, BARONESS EATON and Jules Pipe

Evidence heard in Public Questions 123 - 156

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Political and Constitutional Reform Committee

on Thursday 2 December 2010

Members present:

Mr Graham Allen (Chair)

Sheila Gilmore

Andrew Griffiths

Simon Hart

Tristram Hunt

Mrs Eleanor Laing

Mr Andrew Turner

________________

Examination of Witnesses

Witnesses: Sir Merrick Cockell, Leader, Kensington and Chelsea Council, Mr Jules Pipe, Mayor of Hackney and Chair, London Councils, and Lord Bichard, and Baroness Eaton, Chairman, Local Government Association, gave evidence

Q123 Chair: Good morning, everyone. Can I apologise on the record, as well as privately, for keeping you waiting? We were detained by very important matters of state that the Committee has now resolved to everybody’s satisfaction. I don’t know whether you would like to say one or two things before we start or whether you want to plunge straight into questions. Does anyone want to set an agenda for us or are you happy just to take questions?

Baroness Eaton: Just to say, Chairman, I am not Councillor Chris White.

Chair: Not even Christine White.

Baroness Eaton: No. I’m sorry to disappoint you but the gentleman is stuck somewhere and, as I couldn’t get where I was supposed to be going, I was pushed out of the door and I’ve come with great pleasure to join you.

Chair: What a happy arrangement. Would you give us your name for the record?

Baroness Eaton: Of course I will. I am Councillor Margaret Eaton and I’m Baroness Eaton.

Chair: Margaret, where are you a councillor?

Baroness Eaton: I am a councillor in Bradford, West Yorkshire and I am the Chairman of the Local Government Association.

Chair: Fantastic. We’re all on first name terms here. So, if that’s okay with the Baroness and the Lord, we will stick with that.

Baroness Eaton: Yes, Margaret is fine, please.

Chair: And the knight?

Sir Merrick Cockell: Indeed.

Chair: Unless anyone is burning to say something to start us off, I will plunge straight in. We are looking at the relationship between local government and central Government and whether that can be codified and, if so, how it can be codified, not least to protect the interest of local government in the longer term. We’re working closely-but not on precisely the same territory-with our friends in the Select Committee on Communities and Local Government. They are looking at localism specifically and how that works. We’re looking at a slightly broader constitutional arrangement for the future. My colleagues have a number of questions. I’d just like to kick off: if we’re looking at a codification to protect local government, isn’t it quite hard to give people independence or freedoms when apparently they’re not very vocal in asking for those freedoms themselves? Discuss.

Baroness Eaton: Could I just ask a question for clarification?

Chair: Go on.

Baroness Eaton: When you said "people are not sure", do you mean individual residents of a place?

Chair: No, I was thinking more of the leaderships of councils, people like yourselves and senior officers. I don’t detect a great clamour and an organised effort to convince Members. I must say, as a Member of Parliament, I can’t remember ever receiving anything saying, "We need to be independent from this central Government. We don’t want to keep begging for the crumbs". Maybe my staff have weeded those letters out and there have been thousands of them but it’s not been apparent to me. It is pretty hard to say "take further freedoms" if there isn’t that clamour.

Lord Bichard: As the one person who has not been involved in a local authority, I feel that’s a touch unfair. I’ve seen some of the previous evidence. To be fair, I think local authorities have been saying this for years and years and they haven’t been listened to. To some extent I think maybe they are feeling at the moment-and have felt for some time-that they have to focus on the improvement of the quality of services that they’re delivering. They’re facing huge problems with resources. I personally think they responded to that quicker than central Government did and I can understand why they don’t want to get distracted, in a way, by just having a debate about who has this power and who hasn’t. I think that’s quite meritorious. I think that’s good. But it would be unfair to suggest that local authorities, local government and those associated with local government have not been making the case for greater devolution for many, many years.

Q124 Chair: Where could Members find that?

Jules Pipe: I think both with submissions to Government, negotiations with Government over certainly the last decade, and also submissions to the CLG Committee’s review of the balance of power between central and local relations. Perhaps it has been left to people like myself, Merrick and Margaret to make the case, but I firmly believe that local government, in its entirety, is behind the submissions that we and other representatives from our organisations have made.

Q125 Chair: Is that apparent in the evidence that we’ve received from LGA and others?

Baroness Eaton: I was just going to say something that perhaps adds to what Michael said. Over the last 10 years there have been 4,000 pieces of legislation and statutory instruments that affect local authorities, and that has created a lot of uncertainty about what local authorities can and can’t do in response to local requirements and local need, because they have been so busy responding to the legislation. So if you look at that cumulatively, it’s had rather a dampening effect on the creativity and the ability of local authorities to say, "This is what we need to do; let’s go and do it", because there’s always a legislation or instruments that have needed to be looked at.

As an example, when a local authority wanted to join a mutual around finding insurance and ability to do things for the local authority, they found that they couldn’t do it. So I think clarity and the opportunity, I would suggest, for a power of general competence, which removes what have been constraints, will enable a legitimate local government to do what the people who elect them require them to do, without being in conflict with what national Government has as its priorities.

Sir Merr i ck Cockell: I can understand how you think-as you explained at the beginning, you haven’t been inundated with the clamour from local government. In broad terms, not the leadership of local government, but the thousands of councillors out there have become used to being subservient; have become used to waiting to be told what to do by Government. Then, inevitably, as in all those sorts of hierarchical relationships, when nobody tells you what to do, you start asking, "When are you going to tell us what to do?" So that is at one level: the average councillor feeling, "What is the point?"

But I think from the leadership of local government-some of it represented here but I think throughout the country-there has been a clamour. Some or most of it, I would say, has been directed in political terms; so within the political parties. Some of it has been cross-party. So the job that Jules does I did for the previous four years, chairing all the London boroughs, and we’ve had a cross-party document-a public document with all the publicity and everything like that-making the case for London; making the case for more powers, not just for the boroughs but also the appropriate powers for the Mayor of London.

Also, in political terms, a very senior current Member of Cabinet has spent a good deal of time in opposition encouraging Conservative local government to raise its expectations, not just to take the hand-outs or the fag ends. I have been at meetings where he robustly-he is a robust figure-challenged local government face-to-face, saying, "Stop being so negative. Come out with what you really want and fight for it"-in these terms-"because if there is a change of Government", which we now have, "the opportunity for real change is there".

Q126 Chair: So is there a clarion call? Is there a charter of a request or demand or vision that, collectively, you might be working to, that you will seek to propagate and talk to Members of Parliament and Ministers; something that is coherent and in one place that will set alight a campaign to have greater independence for local government? If not, do you think it would be well worthwhile everybody getting together and bringing that sort of coherence to your view?

Jules Pipe: I think there is a lot we have in common, across the parties and across local authorities, about what we would like to see. I think, though, that perhaps in the final analysis there are differing views about whether codification would be the answer in the short term. I think the worry is mainly that codification, starting from where we are, it’s a bit like the gag about asking a cab driver about how to journey to the House of Commons: "I wouldn’t start from here", comes the reply. I think perhaps there is a fear that working on codification, from where we are now, would entrench us all in a place where perhaps both sides, Government and local government, wouldn’t be happy. If it was perhaps codification that fully-in spirit, not just in word-encapsulated the European Charter of Local Self-Government, perhaps there would be more consensus about it. But certainly I think everyone is signed up to the outcomes, even if there is some suspicion about whether codification, sooner rather than later, would be helpful.

Baroness Eaton: I was just saying there was a concordat, which I believe still exists, that was signed by Simon Milton when he was doing my role at the LGA with Government. As a principle, nobody could have argued with it but it did absolutely nothing. It was words where nobody delivered anything. As a result of it we used to have a central local partnership; central governments were supposedly to present their Ministers with us so that we could discuss things that were of mutual concern and interest, and Ministers didn’t come and it delivered absolutely nothing. So where I sit, I would be very concerned about having a token gesture that, in a way, gave an impression of something being in place that certainly didn’t deliver anything. So that’s my caution. Not that it sounds wrong, not that the principle isn’t fine, but action, and how you make sure action happens on the back of it, is rather a different issue.

Sir Merrick Cockell: Sorry, could you just clarify whether you were saying have we made the ask of parliamentarians or Government?

Chair: Partly. It feels pretty slow; a little bit complacent, a little bit Stockholm Syndrome, "Let’s wait for them to offer something and then maybe it’s acceptable or it isn’t". It’s not, "This is our negotiated position. We would like constitutionally independent local government. What’s your offer? We’re going to campaign for this".

Sir Merrick Cockell: Then we have failed because we can inundate you with Magna Carta for Localism, Manifesto for Londoners, the LGA documents-every pushy local government leader has been producing his own vision of local government-or saying, "We should be the default position for local public services". The fact that you’re questioning whether it’s out there means we haven’t sent it to the right people.

Chair: So it has not been communicated particularly well?

Sir Merrick Cockell: Yes.

Lord Bichard: One of the problems, though, is that when the debate has been focused on the constitutional issues-for example, financing-it hasn’t got anywhere. I mean Michael Lyons’ report: produced. Nothing has happened to it. You can go back 40 years and this been happening again and again, and I think people have reached the stage where they’re fairly cynical about having a debate just about those issues rather than about practical issues.

If you’re asking whether it would be a good idea to have some kind of codification, I think the balance is fine, in that very often codes about relationships don’t work very well. Very often they’re at too high a level. One of the problems with partnerships at a local level-and I know, Chairman, you’ve been involved in quite a lot-is that I think they’ve been high-level concordats signed by senior politicians and senior officers, which have made no difference whatsoever to the lives of clients and communities on the ground. If we’re talking about that kind of thing but at a national level, I don’t think anyone wants anything to do with that.

So I’ve been on one side or the other of that kind of line. I think I’ve come down now to think that a codification would be a good thing. I’m in that position because I think we have arrived at the stage where some clarification of power and responsibility is necessary. I think it’s not just to protect local government. I think Government itself-this Government-if it is serious about decentralisation-and all the signs are that it is-needs to spell out to the wider public where responsibility lies now, because otherwise we’re going to have constant and continuing debates about postcode lotteries rather than postcode choices.

Q127 Chair: You have to take those debates on. You don’t just accept it from central Government. You have to have a very clear position. My position is that I’m looking forward now-since this hasn’t happened because, clearly, of some miscommunication to do with my office binning all your letters-to your knocking on the door, with great vigour, of my Committee Clerk and others with what you would like to see. Two things have changed: one, we have a new Government that says-and I believe it-it is committed to new politics; secondly, it has devolved power to a large extent through this idea about localism; and, thirdly, there is a brand new Committee called the Select Committee on Political and Constitutional Reform. We’re new boys on the block and we are open and ready for business. Now, you may be cynical. You may be a bit confused. You may be a little concerned about breaking relationships with the centre upon which local government depends. But there is an opportunity now, and I would ask you to suspend your cynicism, get your ducks in a line and try us. If we let you down then you can say, "Well, there we go again". If we do good job for you, then you will have helped influence the shape of a codification, if indeed that’s where we go.

Jules Pipe: I’m absolutely fascinated by what you’ve just said because, whether it’s cynicism or whether perhaps a better word is "realism" on local government’s part, certainly I-and I’m sure my colleagues as well-do recognise the need and right of Government, of whatever colour to implement its programme. Governments always seek to use local delivery mechanisms-whether it’s local government, local health service-as local delivery mechanisms in administration rather than local government and they’ll always use whatever is in place, short of some firm, codified constitutional settlement. They’ll always use new additional laws, new funding streams-whether ring-fenced or not-to ensure that the local administration delivers their agenda.

While we would argue against the excesses of that, perhaps in its entirety, it’s a given, and I think we would be in quite a strange place if we were arguing that Governments shouldn’t expect to be able to do that. So I’m fascinated; effectively you’re potentially setting yourselves up as a bulwark against that.

Chair: Only if asked and if we’re not asked, obviously we can’t do that.

Baroness Eaton: I did mention earlier, almost in passing, that what we have been arguing for in local government for a long time, and certainly with the new Government, is a general power of competence for local authorities, which is absolutely critical to this debate because it says what Jules has just said: quite obviously and rightly, central Government has things it wishes to see delivered to people and that’s usually via local government. But how that is done is entirely, as we see, down to the local people and the local council because everywhere is different and one size does not fit all.

So if there is a decision to deliver a particular service, general power of competence would mean the local authority could make the decisions "how"-that is what we’re asking for-so that the relationship that we have with central Government is not one of merely delivering the national state’s view of the world. We hear what it says, know it has rights to decide some of the things we do, but not how we do it; that is for us, and it’s amazing that you haven’t heard about the general power of competence because it’s certainly going to be part of the Localism Bill.

Chair: I have heard about the general power of competence, but it doesn’t exactly have people clamouring in the streets for a change in the relationship between local government and central Government.

Baroness Eaton: I’m sure it hasn’t. Neither did the Concordat, Chairman.

Chair: Yes. General power of competence! When do we want it? Now!

Q128 Simon Hart: Thank you. Two questions: I think the first one is the simpler. In your references to codification some of the answers talked about more power and some about more independence. I’m just wondering whether there is a distinction between power and independence in this context and, therefore, whether that automatically leads to more accountability-which I suspect we think is a good thing-and, therefore, more effectiveness. Before I go on to my supplementary, have I read that correctly and what is your view?

Baroness Eaton: Power and independence?

Simon Hart: I can go on to the second one if it’s easier?

Sir Merrick Cockell: Power indicates direct control over whatever area it is. I don’t see the role of the democratic accountability of local government separating councils from councillors. The role of councillors is simply power over others, whether power over delivery of services or direct power. I think there is a lot more community leadership, influence, partnerships, some of the clichéd buzz words. But I don’t see it simply that the state gives people like me, and us here, power, as an alternative to them having power that they give the powers to us. I think it is a matter of the appropriateness of where that power is held, and the simple conclusion that instead of being at the centre it’s in the town hall, the county hall or the city hall, I don’t think is right.

I think the other part to localism, which is often missed at this stage, goes back to the appropriateness. It’s taking power down to people so that individual areas have more power over their day-to-day lives and don’t simply rely on the town hall, the council leader or whatever. I think that is crucial. I think it does require us giving up as well, taking risks and involving others; I would say particularly letting ward councillors have a far greater say over things that impact in their areas, and working with the people living and working there.

Q129 Simon Hart: That leads me to the second question, which relates directly to the area that I know best in Wales. You obviously have the national Government based here, the Conservative-Liberal Democrat Coalition. You have the Welsh Assembly based in Cardiff with a Labour-Plaid Cymru Coalition. To drill it down even further, in my own county you then have an independent council and you also have a National Park Authority that, to some extent, undertakes a certain amount of local government, certainly in the context of planning. My first question is: would you view the Welsh Assembly as national or local government? I have my own views on that and I’d love to hear yours. Secondly, and more importantly, is this a form of codification? Are your experiences of the example I’ve set out positive? Do you think this Committee is travelling in the right direction as far as looking at those kinds of examples and applying codification to them?

Lord Bichard: I think you’re in danger here of getting confused. I think there are two issues you’re running with. One is: what should the relationship look like, where does power exist and where is responsibility? The other is: is it helpful to codify this? I think they are obviously related issues, but they are different. You can come to the conclusion that you want a change in the relationship. You may decide that it doesn’t help very much to have it codified. I’m not sure which horse you’re riding at the moment but, if I may say so, I think you should be a bit clearer about which one it is.

Q130 Simon Hart: The reason I ask the question is because I don’t think it is clear. I think we have created the situation that we live with. What I am attempting to ascertain is whether you think the discussions we’ve having, and the codification debate, is going to clarify or confuse them. So, yes, you’re quite right, I have a leg either side of the horse.

Lord Bichard: So you have to clarify the relationship. You have to clarify where power and responsibility is before you can codify it and before you decide whether codification is helpful. I’m sure you’re going to be having the debate about the first in this Committee, although I think the hearing today was more focused on the second.

Jules Pipe: One way it could be thought about is in terms of outcomes, outputs and inputs; the fact that the national government has the right to dictate outcomes for the country, for the people in this country. But dictating local outputs to deliver that, I think that’s where people start discussing, "Well, we don’t have enough power. We are just being told what to do. We’re an administrative arm". Perhaps codification-or at least a change in power-could be thought of in terms of leaving the outputs to local government or regional government. Then also there’s the inputs, which, of course, is another vital strand about whether a body, such as local government, has the resources to deliver what outcomes are being dictated by national Government and what outputs are expected. Of course, there’s another strand that can be explored about outputs, because then it is the whole target culture that it was believed was in place before, and this Government believes it is removing. So I think those three things-about where you place the people responsible and have the power over outcomes, outputs and inputs-are a possible starting point.

Sir Merrick Cockell: Can I comment on your description of Wales? Did you miss parishes out somewhere along the line?

Simon Hart: Well, communities in our instance. I mean, there’s only so much time.

Sir Merrick Cockell: That’s an example. I’ll leave you to decide whether it is regional or local. The comment I’d make is that your description of the mass of national, principality, regional and local is, in our world-if we continue my line of passing powers to the appropriate level-one we would immediately codify. If we’re passing powers down, we have to tell people what their rights are in this. So it’s a slightly bizarre position that we’re sort of in two minds about whether Government should codify with the mass of local government, yet that’s the expectation on us and what we do as a matter of course. I think that comes from where power rests; national Government does control us. Therefore, a code: how much does that mean if Government doesn’t want to apply the code and enters evidence through the Concordat, and everything of that?

I think an example of where power is not that clear is something that London councils considered, and I signed about a year or so ago now; a year and a half ago-with the Mayor of London, which we will give you as evidence: the London City Charter. What that was trying to do was say: here we have the major city in this country; uniquely or unusually, we have a region and 33 London boroughs. One is not subservient to the other. The Mayor’s responsibilities knock against us, but we have our own totally separate responsibilities and neither has influence over the other, yet somehow we have to make this city work so how can we operate better together? So it wasn’t that he was in charge of us and we were asking him. It was: how do we do this better? So that’s a voluntary codification of that relationship endeavouring to improve the governance of London.

C hair: Based on statute?

Sir Merrick Cockell: Yes, based on statute but based on the free men and women-London’s elected politicians-willingly, cross-party, getting together to try and do things better for the benefit of Londoners and avoid those historic problems of one tier versus another. But that is from a relatively equal power position. Giving powers down to the next level does not necessarily mean a subservient, master/servant relationship.

Q131 Chair: You are demonstrating that a codification is a framework and thereafter free institutions, or defined institutions, can then make arrangements, discuss stuff-make treaties, in effect-about the detail. But initially you are operating within a codified settlement imposed by the executive, and finding it quite easy to then move on to do the other stuff.

Sir Merrick Cockell: It does require an ongoing continuous willingness to make it work and to be committed to it, because this Mayor-or a future Mayor or a future group of London boroughs-could simply leave it to gather dust, as we’ve seen with other-

Baroness Eaton: With the Concordat.

Sir Merrick Cockell: With the Concordat.

Lord Bichard: Going back to that, the Concordat. If you look at it now I think it’s too general. As Merrick was saying, you do need a statement of the relationship. But I think you need-very swiftly or to have at the same time-some pretty key practical issues dealt with. For example, I would have thought it would be quite helpful for local government to know that every piece of legislation, which had an impact on local government, was subject to pre-legislative scrutiny because effectively that would give an assurance that there was going to be real consultation; because there are opportunities for local government to feed into that. That isn’t around at the moment. Why can’t that be part of the code? Because if you start putting those things in-if you take away some of our cynicism, which I think we all share; we’ve probably all been around too long-you have some pegs in the ground.

Jules Pipe: I would absolutely agree with that. While I’m very supportive of the city charter, I would view it as slightly more akin to, shall we say, the legislation that came in about local strategic partnerships. I’ve never met a council leader in the country who doesn’t say that they have a very close working relationship with their borough commander or their chief executive of their PCT. However, below that level how much integration and how much are people either not working together or hiding behind rules about data-sharing, which means that cross-working isn’t happening? So there is no enforcement behind that and, likewise, the city charter. It’s about creating a positive relationship and, therefore, it’s down to personalities; much like-coming back to my LSP example-the relationship between the council leader, the chief executive of the council and the borough commander.

I think what Michael is saying-and we would agree with, everyone would agree with-is we need a degree of enforcement. So, as well as change before codification-so that it was a settlement that certainly local government was happy with-the second thing would be that enforcement; all new legislation that related to local services, or had an impact, having that pre-legislative scrutiny and having almost a statement of compliance with the European Charter. Where there was deviation from the charter, there would have to be justification. Basically the Government would have to say why it was deviating from it, then the Committee would have to consider whether that was a justifiable departure for what the Government wanted to achieve.

Chair: We’ve heard the request on pre-legislative scrutiny. I think that’s a very helpful proposal. We’ve heard the request for a joint Committee of Commons and Lords to be a buffer between change on the whim of duly elected Government, which sometimes happens. Previous witnesses have also spoken about the 1911 Parliament Act, whereby the Second Chamber can tell the First Chamber, "You can’t change the term of a Parliament without our agreement". It’s the only thing that needs the Second Chamber’s total agreement. One possibility is to add to that Parliament Act clause B, which says, "You can’t change the terms of the relationship with local government, as defined by a statute that sets up local government in some official way, unless the Second Chamber agrees".

There are a number of things, short of a written constitution, that can defend the rights of local government and those are the things we’re going to be looking at as we move forward on codification. Those are the things that we would appreciate your help with, in terms of specifically-whether it’s codifying what happens now or something else that we’d all like to see, which maybe more difficult-finding out how we protect that codification from whimsical change. It’s something that we would very much like your help with.

Q132 Sheila Gilmore: I represent a seat in Scotland and we’ve had a recent experience of a Concordat between the Scottish Government and local government. I don’t know how far you’re aware of this, but I think it’s the observation of many people that it has weakened the powers of local government rather than strengthened them. I think, perhaps, that has to do with the point about power and finance and the relationship of that to codification. I’d just welcome your comments on that, if you’re aware of the problem.

Lord Bichard: I think it rather depends on what’s in the Concordat. I think concordats can work, codes can work, or they can not work and be a disaster. They can constrain behaviour. I think there would be some concern in local government if this wasn’t articulated and defined in the right way. It would prescribe what local government could do, even more perhaps than at the moment.

I think you have to get down to: what is going to be in this? I think if you start talking about pre-legislative scrutiny; if you start talking about in-year adjustments to funding and how that’s handled; if you start talking about requests for data and information that can be regarded as trivial but consume a huge amount of time and effort from local authorities, and how that’s going to be managed, I think you can come up with half a dozen very practical things-probably a dozen-that would help.

Finally, Chairman, I would say I worry a little bit when you talk all the time about protecting local government. I think this would be a statement of a new relationship, and we all have to think back-I’m the person who was Chief Executive of Brent in the early 1980s; the scars are still on my back-because there have been occasions when it hasn’t been central Government abusing local government, but local government abusing the relationship. So we just need to be clear that if we’re having a code, it’s about the relationship rather than protecting one partner.

Q133 Chair: Just on the word "protection", I’m just making the point that statute law is the instrument by which local government is given life. A Government, particularly a new Government, will use statute law to localise, to give more freedoms, and so on, to local government. But then, it’s a phenomenon that, rather rapidly after being elected-maybe two years, I don’t know; Simon Jenkins told us it was a matter of six months after being elected-the pendulum goes the other way and statutes are passed to stop local government from doing certain things and powers are recouped, as they can be if there’s not a codified settlement.

The other question to put in your minds is: would the items that need to be codified include, for example, the right to raise taxation, the right to have referenda locally on bond financing, fundraising or other matters? We’ve had a list from Professor Jones and Professor Stewart of specific items and, again, we need to know: what of these things do you all feel should be on that list-and, indeed, the general power of competence if you so wish-so that codification can be halfway practical from the Committee’s point of view?

Baroness Eaton: That sounds very logical and helpful but, by being prescriptive, it can create the situation we talked about earlier, where there’s more and more legislation and statutory instruments, which then prevent, and give the impression to local authorities that they have to check the law and the opportunity for challenge. I gather from my previous comments about it that it’s not popular, but the general power of competence says, "Thou shalt do anything that is useful to local government". If we’re going to start saying, "You can do this and you can do that", there is an implication that there are things you can’t do. So it is more about the very limited things that we’re stopped doing. So it is saying, "Government gives you the freedom to provide and do according to local determination rather than being very prescriptive." Because once you start saying, "Thou shalt do this and that", there is an implication that there are things you can’t do that you may need to do. So I worry about that.

Sir Merrick Cockell: Yes. I think we’ll know within a matter of days what the general power of competence means. But if it is saying that local government has the same powers and rights as an individual to act appropriately, provided they don’t break other laws, then I’d rather have that than a codification that says, "You can raise money on the bond markets; you can put up-" because immediately that is saying, under current circumstances, what Government thinks it is appropriate for us to do, rather than our just being liberated to decide for our own communities what makes sense within inevitable constraints.

That is right for national government to give us the context within which we work but, beyond that, we should be left to get on with it, provided we do it in a legal way and we are accountable to the people who elect us and to Parliament as well. But, ultimately, the electorate can throw us out if we let them down, and if we behave improperly, the law will take action against us personally or collectively. That is true freedom and a true shift of power, and it doesn’t require endless negotiation, and you can see in five years’ time an amendment clause on the codification, and so on.

Q134 Chair: But how will that be safeguarded? That’s the question, because it can be taken away next year by statute law. Is there a way in which you can defend whatever is on your list for codification from change within a matter of months?

Sir Merrick Cockell: I’m no historian or constitutionalist, so I don’t know the answer to that. But the responsibility then is down to us to make it work, to deliver it. I think that the real challenge for local government, whether it’s a general power of competence or a codification is: do we have the capabilities throughout, not just a few outliers, to be able to change our part of the constitution of this country and accountability in local public services? That requires more than a mind shift. It requires a whole different way of operating in local government and the leadership of local government and, indeed, in ministerial and governmental behaviour. I think I heard Andrew Lansley saying it not so long ago, but when the Minister stands up in Parliament and says, "It has nothing to do with me. Go and talk to-

Baroness Eaton: The council.

Sir Merrick Cockell: Yes.

Q135 Sheila Gilmore: I still wonder if even a general power of competence is sufficiently useful if ultimately the purse strings are held by a higher level of government, because I feel that that is what has happened in Scotland, where there were lots of warm words around this Concordat, about the way it was going to work and the greater powers that local government would have. But ultimately it has come back to, "We’ll cut your budget if you don’t do this; we’ll maybe cut it less if you do that". It is down to who holds the money.

Jules Pipe: I think that goes partly back to my outcomes, outputs and inputs. The inputs thing has to be part of any settlement. I’m not arguing that there has to be a blank cheque available. But, as well as any Government proposal’s being tested against, say, the European charter and what I’ve said about a statement of compliance, I think there’d have to be a requirement to properly consider any effects of changing responsibilities or levels of resourcing as well, so that things can’t be changed without evidence of serious consideration having been given to the evidenced effects of that legislation. That’s been forever a complaint of local government: that changes are made, new responsibilities are given, but insufficient money is provided. With the Licensing Act, for example, insufficient funds followed the legislation.

Lord Bichard: That’s why the previous scrutiny issue is so important. I think there’s a limit to how far you should or could constrain the power of Parliament to do what Parliament at any particular time wants to do. But it’s important that any legislation, which has an impact, is transparently debated and people understand the implications of it, which has not always been the case. That’s why I think that any code should include this. We’re all localists here. If you ask us-or certainly if you ask me-whether it is a good thing that local government only has control over 25% of its money, my answer is "No". That is an issue that I think we would probably all like to see grassed, but the problem is that we’ve spent years and years debating it, and nothing much has happened.

If it was another five years while we debated that issue and nothing much happened and nothing changed, I think that would be a disaster. Total Place, which you know about, was an attempt to say at that time, "In the short term, we’re not going to be able to change the basic relationship, but there are things we could do that would enable us to provide better services to clients and to communities. Let’s get on with it". So I think at some point the taxation base should be changed, but let’s not wait for it to be changed before we change a number of other things.

Q136 Chair: That might be in the Concordat?

Lord Bichard: If it was changed it clearly ought to be, yes.

Baroness Eaton: I know that in the very near future the Government are going to do a local government resources review. I hope and think that the whole use of business rates will come into that, which then would change that in that local government would then have much more power to raise its own resources locally. That might even end up, if the business rate comes back, to having a situation where the business rate raises more than the grant. So I think that’s part of what we need to look at from the Government in terms of where we go with this, because none of us feels that the system works towards local decisions.

Q137 Mr Turner: Could I just start by asking if-it is clear to me-you accept that we can’t change your powers forever? It is up to the Government where they are at any one point?

Baroness Eaton: Yes.

Q138 Mr Turner: You see the next thing that worries me is that you are all national people in a local network. What I want to know is: what is going on among the local people-in other words the local councillors, local district councils, local county councils-bearing in mind there are probably 40 councillors and only one of them is the leader? How much do you speak for them?

Jules Pipe: I think I can give a good example of that. I think we do and I can give perhaps a small example, and I think a good one, of planning and licensing law, nationally set, where certainly my borough-and I know many other boroughs in London-are frustrated by the inability simply to stop the third, fourth or fifth betting shop appearing on a High street, because betting shops are in the same use class as banks or whatever. So a betting chain buying up a bank or a little insurance shop or a pub doesn’t have to apply for any planning permission whatsoever. That kind of thing creates huge dissatisfaction because, again, it’s not about asking for powers. Often when we talk about more powers and local government wants more powers, it’s not because it just wants a whole new raft of powers or new areas to inflict regulations on local people and dictate to people. I suppose it’s more the freedom to deliver outcomes but with local solutions. I suppose it’s that kind of power and freedom that we’re really after and those licensing and planning issues are a good, strong example of frustrations with our local members.

Mr Turner: I think that’s the first example we’ve had today so I’m very grateful for that.

Sir Merrick Cockell: If we’re into examples I can give another one, which will mean nothing in the Isle of Wight, Burton or wherever: subterranean development. That is a permitted right that John Prescott allowed in the reformed planning. But in the centre of London-in Kensington and Chelsea-as we speak, people are digging underneath their homes to create rooms. This is not just the palatial mansions of Holland Park but the workmen’s cottages of Chelsea or the Mews houses, where people are digging down and creating rooms without any windows, without ventilation, light, or anything like that, and that is permitted. But, of course, these are on the flood plains. The impact on neighbours is enormous. There’s a rebellion out there that I cannot respond to because, in planning terms, I cannot and this is local.

I mentioned this to the Secretary of State a few weeks ago and he looked at me as if I was barking because subterranean development is not an issue in his constituency, and I had to explain why it was an issue and there was no way to respond to that. Leading my council, with the force of the residents’ views in my email box, I should be able to say the particular circumstances in my area and a few others mean that we should be able to prevent, or constrain, or apply planning laws locally that reflect local need and demand, and everything like that. At the moment that is impossible to achieve and I can’t think of a good reason why the weight of my residents and local planning should not be able to determine something like that, far better and far more accountably than the planning people down in Bristol or CLG have been in the past.

Lord Bichard: Certainly before the election, the control of and size of conservation areas was something that local authorities-

Sir Merrick Cockell: Exactly.

Lord Bichard: I think one of the problems is that national politicians, if I may say so, ask for examples; they get examples and then they dismiss them as anecdotal. The three examples you’ve had are an indication of the culture that has existed.

Q139 Mr Turner: Those are areas where the public demand action and you are acting. But what you’re talking about most of the time seems to be a high level that doesn’t impact on Burton-on-Trent, or wherever-I say "Burton-on-Trent" because I don’t want to give the Isle of Wight as an example because we’re a unitary authority-and what worries me is that 30 out of 40 councillors aren’t involved in running things. Beneath them there’s very little contact between members of the public and those five or 10 people who occasionally meet yourselves and, even more occasionally, us.

Chair: I’d like colleagues to answer that in the context of political and constitutional reform, rather than localism, which is obviously our sister committee.

Lord Bichard: But if we believe in local democracy, if we believe in democracy, it is important that the individuals you talk about-the 39 councillors who aren’t leaders-have some power, some space.

Mr Turner: I agree.

Lord Bichard: They need that to maintain their credibility with the electorate. If they always have to respond to what seems to be a sensible, practical request by saying, "I’m sorry, I can’t do that; the council can’t do that; that has to go to the Secretary of State", people will look at them and they think, "Well, what is the point of this democracy?"

Q140 Mr Turner: I agree, but at the moment that is where they are and they aren’t meeting. Even my councillors don’t say, "Frequently, we don’t have these things that should be under local control but are in fact under national control", and I’m trying to understand why that isn’t happening.

Lord Bichard: The other members of the panel may not agree with this. It has been said that, in some ways, local authorities have almost been infantilised and local authority members have been infantilised. Now, clearly the people on this panel have not been, but a lot of people have, and I often liken it to someone coming out of prison after 25 years and they stand at the gates and people say to them, "How lucky you are to be free", and they are fearful. They are anxious. They do not know what’s going on around them. I think Government needs to understand that, as a result of its actions, it has created the kind of environment that you describe and not use that as a reason for not doing something about it now.

Baroness Eaton: Even the local public service, the officers will say to members who want to do something, "Oh, well, we have to wait for the guidance".

Mr Turner: Yes, absolutely.

Baroness Eaton: It is a culture that we really have to change and understand. Also I think the idea-that perhaps affects what you are saying-that councils will be able to design their structure as they wish for members, then I hope, they would all think they have a major role in the decision-making as opposed to just in their area where they are looking after it, because that’s important.

Q141 Chair: If there is a general power of competence to come, will it override all these things on licensing and subterranean developments? Will that take precedence over statute law?

Baroness Eaton: It depends how it’s drafted, Chairman. I understand that if the existing legislation is removed and a new statute is put in place, that stops those sorts of arguments but I’m not sure how it will work until we see what it says. But it could have challenges unless there is clarity about what has been removed before you create the new one.

Jules Pipe: I’m afraid I’m not such a constitutional expert as to be able to know how any codification, or any law that could be drawn up around what we’re discussing today, interacts with the Town and Country Planning Act 1947, what supersedes the other one and whether the other one references that.

Q142 Chair: Once again, that’s why we are interested in the concept of codification, which notches up one notch above statute law by having certain defences. So if it states, "Local government powers shall not be inhibited unless both Houses agree", or some such, it stops that constant chipping away and changing of the relationship between the two, certainly on an annual, if not a monthly basis. So, again, in terms of our Committee’s work, I would ask for you to think about that extra step beyond someone giving you a power today that they could take away tomorrow.

Jules Pipe: I think it is going to be hugely difficult because I don’t see how one can exactly have a true power of general competence, and it still lives comfortably with completely legitimate and irrevocable needs to have, say, a Town and Country Planning Act for the country, or something similar. But it’s the fact that such a document as the 1947 Act is peppered with things such as use classes. It’s changed over time since 1947 obviously, but enshrined throughout that legislation are these complications that wouldn’t necessarily be removed by a power of general competence.

Baroness Eaton: I don’t know whether they would or not.

Jules Pipe: So it’s almost as if it can’t be done in isolation. It’s a case of going through all the legislation.

Chair: Every other western democracy deals with this question quite comfortably. It’s only in a highly centralised society, like the UK, that we agonise about whether use classes from 1947 infringe a general power of competence.

Q143 Tristram Hunt: First, at the back of my mind I’m wondering whether there’s any difference between a general power of competence and a power of general competence. But when we talked about the previous freedoms that local government had and the great era of local government-of the LCC and the 1880s, 1890s, early 1900s, up to the 1907 elections-that was absolutely on the grounds that essentially local government pushed the barriers as far as it could until central Government came down on it like a ton of bricks. So it experimented, diversified and built council housing until it was told it couldn’t, and all the rest of it.

Two points: first, that was predicated on an Imperial Parliament rather than a Westminster Parliament. So, in any real sense, can you have the kind of freedom and liberation necessary with us sitting here, even if we go down from 650 to 600? I wait for the day that Andrew Lansley says, "Nothing to do with me, gov. Take that up with the local authority leader. But it’s an interesting question". Will we all need to go on re-education camps to get rid of postcode lottery language?

Secondly, all this stuff about charters and concordats; it all comes down to money and financial autonomy, doesn’t it? If you have financial power and if cities and local authorities have autonomy, the power relationship changes, and we can have as many fine words in vellum and all the rest of it as we like, but if you have the business rate back and an end to rate capping; if you have local taxation systems and a diversified tax base-without necessarily going as far as the liberation struggles of Brent in the early 1980s-if you have the freedoms that it comes with, then the whole thing changes. We can produce a lovely report and the CLG Committee can produce a lovely report and we can have lots of lovely words, but it’s meaningless without fiscal autonomy, isn’t it?

Sir Merrick Cockell: I think you’re absolutely right. If we think about the great ask that we’re after-and we have been for a long time-is the business rate and NNDR coming back to us. But so what? Everybody has looked at the figures now and almost the amount that we theoretically give to the Treasury, having collected the business rate, is then pretty well-with a few outliers like my authority and Hillingdon and the City and Westminster-about the amount of money you get back. So where has that got us? Hopefully, it has reconnected us to business. Well that would be interesting for a start, but it’s nowhere. We must have the ability to have potentially-and I can hear the Treasury already-all the things that Michael Lyons’ report put forward, "Set local sales taxes, bed taxes, whatever it may be, so that I can work with my community, my economy, and flex that in opposition to attract people to come and shop in my area and the leader of Hammersmith and Fulham, his council can attract people to Westfield"; or now that we’re going to be a three-borough agreement, of course we’ll just be trying to defeat Lakeside Shopping, or wherever it might be.

But it has to go beyond what Government is comfortable with. It has to take risks. I would like to be able to build more schools. I don’t care whether they’re free schools or whatever. For my community we still need more schools. We opened one Monday of last week, a brand new school. It took 17 years from the day I was Chairman of Education to the day we delivered it. If we’d had financial freedoms, we could have easily, frankly, raised that money. You’re right: without the financial freedoms it means next to nothing, because we cannot then aim to do crazy things that the Victorians did; whether it’s clean water or health or getting rid of the slums, or whatever the equivalent for our communities may be. They got on with it and in very short time they created true revolution.

Baroness Eaton: Yes. What was so interesting about that, it was because everywhere is so different and everyone could act differently. At the moment we’re all constrained so that we all have virtually to behave in the same way, whether we have the same problems or the same issues or not.

Chair: Merrick, in particular, I’d like you think about those financial constraints and liberties and what form they would need to take in something that goes beyond statute law into a codification. If we’re not clear about that, I think Tristram is right, we don’t get anywhere.

Jules Pipe: I wouldn’t disagree at all with what Merrick said. Although I think a complete departure and a total fiscal autonomy is always going to be very difficult to achieve, simply because there’ll always be a need for equalisation, because of those outliers that Merrick mentioned.

Q144 Chair: Why must that be a role for central Government? Why can’t local government itself produce equalisation at least as good as that being produced from Eland House?

Lord Bichard: I think it can. I think you’re raising the issue of accountability again and I don’t think we’ve unpacked that at all. I think all I would say is that I’m sceptical about, "in one bound you’re free". The world that we’ve inhabited, which is changing but could change back, is one where local authorities haven’t had much control over finance. That’s been made worse by ring-fencing; Government’s determination to ensure that every penny is spent in the way that it wants it spent. Now that is changing. That has been reinforced by targets and indicators. We’re free of that but I notice that suddenly milestones have appeared. I’m still trying to work out the difference between milestones and targets and indicators but it’s an interesting intellectual debate for us to be involved in.

I do agree. I said earlier, you can’t have local democracy on the basis that they only have 25% of their budget being raised locally. We want to change that but we want to make sure that, even if that’s changed, we don’t slip back. Chairman, I think you also ought to think about this issue of accountability because I think accountability is a much more complex issue-I don’t want to become too academic because I’m not an academic-than we sometimes think. In recent years, we’ve thought about accountability as entirely about either accountability to central Government or accountability to the people through election, but there are other forms of accountability.

There are different forms of democratic accountability. I have one of them sitting next to me. What is the role of mayors in the new arrangements? There is administrative accountability. The last 10, 15, 20 years have been very much about regulation, inspection and assessment of administrative accountability, sometimes at the expense of local democracy. Is that going to continue or are we going to be changing that too? Then there are markets. That’s a form of accountability, too. I just think if we’re going to have a much more decentralised system, we also need to think through what we mean by what sorts of accountability we need.

Sir Merrick Cockell: Just a quick point following on: Jules mentioned equalisation under NNDR. Of course, you require equalisation while my borough is a net contributor. There is a wonderful graph flowing with all the authorities and yesterday I was looking at one end with Westminster then the City and then Hillingdon and Camden and then K&C. I was looking at Birmingham and of course Birmingham was the reverse. They were the largest receiver of equalisation, and I just thought-what a great city-the great city of Birmingham is the greatest sort of supplicant requirer of equalisation when, if it had flexibility, it’s the largest local government area in Europe, but it doesn’t have the ability. Instead of looking to Treasury or the business community elsewhere to prop it up, it can’t set about doing it itself. If Birmingham could do it in Victorian times, why can’t Birmingham do it now and succeed in financing the economic growth of that area, that region?

Q145 Tristram Hunt: I think that’s very interesting and it points to the broader issue, which is that, again, when you look at history right up to World War 2, arguably, you have very strong regional forms of capital, much more dispersed around the country. With those forms of capital, embedded business elites often formed a bedrock of local government and the connection between local government and local power. Take the Michael Heseltine sort of paradigm of the branch office syndrome of Leicester, which used to have an awful lot of headquarters in its city, with business, corporate and social elites surrounding that, providing the leadership at local government level, which gave it the power and all the rest of it. If you look back at the history of Birmingham, it was transformed not because of any permissive legislation but because of the people who went into local government at a particular moment. Without wishing in any way to denigrate the leadership of local government, which I think is spectacular-we’ve heard time and again that the mistakes in Whitehall are far more egregious than the mistakes in town halls-is there the indigenous civic leadership in local government that will be able to utilise any freedoms or make the right degree of case for the freedoms?

Baroness Eaton: Is not part of that issue the fact that if people feel they can’t make decisions about the local things that matter to people, why would you go into it?

Tristram Hunt: Then they do not go into it, yes.

Baroness Eaton: So it’s a bit chicken and egg, isn’t it? Some of us did, hoping that we’d be able to make a difference. If you look at the number of councillors who only stick one term, that tells you a lot about the matter.

Tristram Hunt: What are those figures?

Baroness Eaton: Oh, huge. I can’t remember the proportions but very few people stay longer than one term of office.

Tristram Hunt: Sir Merrick did. Seventeen years since the Education Committee.

Sir Merrick Cockell: Yes, I’ve done 24 years.

Baroness Eaton: Well, I’ve done 25.

Sir Merrick Cockell: But if I’m allowed to comment on that, in London we did a thing called "Be a councillor" leading into the elections in May over a two or threeyear period, and that was cross-party to try and introduce local government to a far wider group of people that might think about becoming a councillor and show that we weren’t some strange breed of people who didn’t have families, weren’t interested in sport, were only political, all those sorts of weirdoes. No comment. But anyhow, my borough did a strange thing. We talked to some head hunters and a head hunter worked with each party. In my authority, actually, Tribal did it and we said we needed to find people with particular skills: financial, asset management, those sorts of things, for obvious reasons. It’s difficult. We used to find accountants in small and medium-sized business, but increasingly they’re not coming into local government even in somewhere relatively advantaged as London politically.

So Tribal treated it as if they were going for a non-exec director. They talked to 300 people and it was immensely complicated. They had to explain that you had to live in the area, so that got rid of loads of people who just didn’t, and everything like that. But in the end they got us three people who we introduced into the political system. I didn’t tell people who the three were and one of them went through and was elected, and everything like that. She was a young mother, but had been in the City and worked for Lehmans and that life had changed, and so on. She had all the skills, but it had never crossed her mind that local government was an area to go into, partly because she wasn’t that political, but one finds a way through. So there is a question of whether we would we get the community leaders of the future that could actually turn round areas. I think that we can but there is a lot of work to be done on-as Margaret said-showing them that it’s worth bothering, worth coming into it in the first place. That does mean a shift of powers so that you can go into it as an alternative to not going, like you, into Westminster and have a political or a local community life.

Chair: We are interested in the impact on political parties and the gene pool of politics, that the weakness of local government puts a lot of people off who might otherwise join that gene pool from all sorts of parties. We’ll be looking at that further. Just to remind you again, you can always have in the back of your mind that constitutional relationship between local and central government, and how that might be put on a sound footing. Again, I’m just conscious of not treading on my friends’ toes at my sister Select Committee.

Q146 Mrs Laing: Haven’t we reached the crux of the discussion when we talk about funding and autonomy of funding? If we have no capping and no ring fencing, which would produce real freedom to raise taxes and to spend, do we then have to say, the first time the Daily Mail runs a big double-page spread on postcode lottery and the unfairness between this part of the country and that-you know the whole story-do we then have to dig our heels in and say, "Postcode lottery, so what? That’s localism"?

Baroness Eaton: Postcode choice. I think terminology is quite critical and it’s about choice. I think that’s how it has to be sold to people: that you are part of a community, you have representatives, they represent your views and, therefore, they make choices that you would make. Next door will make different choices. It’s a real cultural change and it won’t happen overnight, but I think that’s inevitable.

Lord Bichard: It’s a real act of political courage, too. It’s a real act of political courage on the part of any Prime Minister, whatever the party, to get up at the Dispatch Box and say, "This is a local matter". My own view is that there are some things where that is impossible; for example, for a Prime Minister or a Secretary of State to get up and say, "Well, yes, I know it takes four times as long in"-these are fictitious examples-"Newcastle to get cancer care than it does in Falmouth. That’s localism." I don’t think that’s acceptable.

But we do live in a world where the bureaucrats have been able to define-I think it was 2,000 at one point-targets and indicators for local government. I think we ought to be able to define those issues where uniformity is required across the country, and there are a very small number of issues. You have to select them out. It is an act of political will, all of this. We know what happens. Look at the Baby P case, for example. It’s quite a good case study and it’s happened on many, many occasions that Government find it very difficult-Ministers find it very difficult and Prime Ministers find it very difficult-not to become involved in what is a local issue.

Jules Pipe: I want to be a little careful what I say. I suppose I need to make it clear that perhaps these are my views, not necessarily of my party or group or anything-the Labour group on London Councils. In a way I am probably slightly more relaxed about the postcode choice than many. I don’t like talking of minimum standards, but I think that there need to be standards and inspection in three areas of local government: children, adults and finance. The first two are obvious and I think the third one is key to stop the problems that we saw in my own borough 10 years ago, when it was quite easily the worst local authority in the country. I think it’s completely 180 degrees different now in my borough. But I think those are the three key areas where standards need to be met, evidenced and demonstrated to-well, it’s no longer the Audit Commission-whoever will be in place. We know that inevitably, in the fullness of time, there will be something in place once again, because there is a need for that.

But I think there are many other areas where if it’s not going to be local administration and it is going to be local government with self-determination and outcomes flowing from local democracy-as I say, the reason why I caveat my remarks is because I think many of my colleagues won’t agree with me. I don’t mean at this table, I mean elsewhere-why isn’t there a political, democratic debate about the level of library resources in a local area? Probably there will be howls from library representatives across the country, that no, we should have a national dictat about the level of library provision and how many borrowings per capita there ought to be in each local authority. Perhaps many people out there think that will be a good thing, and I need to acknowledge that they have that view. But I think there are some core things that we ought to agree that, for decency’s sake, in a country that is comfortable with itself and has a good level of social cohesion and responsibility for others, there are areas that we should agree on, standards should be met, and then local choice about whether you go beyond those standards.

Q147 Chair: In other countries where there is some form of codification, or written constitution, about the rights of local government, there are also Human Rights Acts or attachments to constitutions. There is also an inspection facility in regime, but probably even more important is that there is best practice, that local authorities themselves create institutional forms that raise the standard themselves rather than necessarily have it imposed upon them, but that’s other countries.

Jules Pipe: No, absolutely. I am a passionate believer in a local library system and local authorities providing a library system, but I think that’s a case for me to make and go to the electorate and get support for, rather than it be imposed.

Chair: Merrick, did you have anything before I ask Eleanor?

Sir Merrick Cockell: No, I don’t think I have anything to add to my colleagues. I agree with them, unless-

Baroness Eaton: I agree, too.

Chair: Sorry, Margaret, forgive me.

Baroness Eaton: No, I was just saying I basically agree, too, about the national things that have to be something we all agree is a standard for things like cancer care nurses. I agree with you about things that have to be local.

Lord Bichard: Just as a footnote, we should remember that the media are quite important in all of this. We’ve lost a lot of local media. The power of the national media is much greater, and the national media are about demanding uniformity. I think that has made it more difficult to be able to say what was said, say, of the 1970s, that the kind of richness of local government was its diversity. I think that’s a very hard story now to tell to the national media.

Q148 Mrs Laing: Very difficult. I think Lord Bichard’s comment that it would take an act of political courage is, again, the crux of the matter. That’s why we’re looking at the possibility of entrenching that in a constitutional arrangement. To be devil’s advocate, can I ask you a question? Imagine a scenario, in Chelsea, for example, with your subterranean developments. Clearly your council takes that very seriously. Supposing you weren’t in charge of your council, supposing the voters had chosen an extreme party to be in charge of the local authority, and supposing that party not only mismanages the finances, etc., but let us say it also permitted lots of-I use this example because it’s the example that you brought up and it’s quite a good one-subterranean development, and that it was very obvious to the residents that this subterranean development would have serious consequences, as you said, flood plains, and so on, and that terraces of Chelsea cottages were going to fall down, yet the local authority continued to say, "No, people need more space. If they want basements, let them have basements". Is the Government to stand back? People would go to their Member of Parliament and the Member of Parliament would approach the Minister. Are the Member of Parliament and the Minister to say, "No, if this is what the local government decides to do, then those terraces will fall down"?

Sir Merrick Cockell: Provided it is clear to people that this decision has been taken locally, that it is transparent and open and it’s not somebody else telling the owners, and the position really has changed, then-I’m being a bit naive here because I think of Doncaster and places like that where the electorate has not done what you would expect them to do when they’re clearly unhappy-

Mrs Laing: And Hull.

Sir Merrick Cockell: Yes, and going back, probably in all parties we can think of examples. They haven’t thrown them out at the next election when they’ve probably deserved to be thrown out. But I suppose-like everyone here-I believe in democracy, and I believe that it’s better to leave it with the people to make that choice than somebody else feeling that they have to intervene on behalf of the people. But that takes time and that doesn’t deal with the newspaper headline and all those things where, "Minister, you have to give us an answer now at the Dispatch Box about what you’re going to do about this". If it’s a child dead, which is different from subterranean development, this is really when you’re into difficulty. Subterranean, I think my argument would be fine, but if we had the Haringey events again, then-

Chair: Although one has to say, the Haringey events occurred in a highly centralised society that proved itself incapable of allowing good practice or enabling good practice, having spent billions of pounds on so-called child protection. So perhaps they’ve had their turn and perhaps local authorities might get it better than the imposed structure through lots of Acts of Parliament. But that’s a point of contention. Margaret.

Baroness Eaton: No, I don’t think I have anything to add except you did mention, Eleanor, if they got their finances badly wrong. Just because we’re not having our assessments in the old way, there is still the auditor taking account of local authorities’ behaviour financially, so it’s not exactly a free rein. There are constraints around that already, quite rightly.

Q149 Mrs Laing: Yes, and that would be in the general power of competence or in the codification?

Baroness Eaton: Well, I would assume that within the power of competence there may be something additional. If I was writing them, and I’m not, you’d put something additional into the district audit role about some reporting mechanism, maybe to Parliament, when things do go wrong. That still gives the freedom but there is a balance if it goes badly wrong.

Chair: Of course, all the North American continental democracies have proper and, indeed, rigorous audit provision to stop them having independent local government. Jules.

Jules Pipe: No, nothing.

Chair: Eleanor, any more?

Q150 Mrs Laing: Can I ask the devil’s advocate question the other way round? In my local authority, we had a situation that happened across the country. For example, the last Government decided that there should be a certain number of Gypsy pitches throughout the country. The central Government then decided specifically where those would be. There was no choice for local government. Every local authority was then required, under pain of penalty, to provide a certain number of Gypsy pitches. If the local people are absolutely against that and if the local authority says, very reasonably, "We already provide more than anywhere else in this region and we have been very reasonable in this", but the Government instruct the local authority that it must implement central Government policy, is that local authority then acting as a local government-a democratically elected local government-or is it being an agency of the state?

Chair: Anyone want to take that one?

Lord Bichard: Well, I think it’s acting largely as an agency of the state. These are really complicated areas, but of course in some respects there are already minimum standards. Jules was talking about minimum standards; I talk about entitlements. There are already-

Jules Pipe: Sorry, Michael, not "minimum", I specifically said not minimum. There should be standards.

Lord Bichard: There should be standards. I think in some areas there should be-not geographical-in some areas there should be entitlement. But there are things like the Human Rights Act, which enable communities and individuals to challenge bodies, like local authorities, if they feel that the local authority is acting unreasonably. It seems to me that what localism is about is ensuring that communities and individuals who feel at a disadvantage have the ability to challenge their local democratically elected authority, but that is different from Government telling them what they should do on an issue like that, which I think is a very local issue.

Chair: There is obviously hundreds of years of common law also-

Lord Bichard: This is legal accountability.

Chair: -of convention and custom and practice, which would not be superseded by any codification, indeed by a written constitution. There would still be interpretations allowed and made through the appropriate judicial structure. Merrick, on Eleanor’s question.

Sir Merrick Cockell: Of course, you have picked one of the most difficult ones that has us all squirming away here.

Mrs Laing: It is difficult and it’s real.

Sir Merrick Cockell: Yes. Find me a local authority that, I hope, given freedom would willingly say, "Yes, and we have the perfect place for a Traveller site". But I think this is exactly an area where national Government should say, "Here is a group of people that have rights, that lead a certain style of life that may not be what most people think is reasonable, but they have a right to do that and they have a history, and all those sort of elements, and the expectation of national Government is that local government makes provision for finding places for them to live, in a way that they fulfil the law and everything like that but live the style of life they want to live". If local government says, "We’re not up to that. We can’t do it. It’s too difficult", well then, I think that is where national Government could legitimately say, "Well, if you can’t do it, we’re going to have to do it". The choice is there. The opportunity for local government is to find a way and-I haven’t checked with Margaret beforehand-it might well say to the Local Government Association, "That is an expectation. Now you go and sort it out". Give them the freedom to work it out.

Chair: I can see colleagues all getting agitated about their own particular cases, and I have some, too, so we’re just going to have to-

Sir Merrick Cockell: They are. But, anecdotally, we have a Travellers’ site, not a well placed one but shared between Hammersmith and Fulham and K&C, and we have worked to make that effective. I don’t quite believe that local government out there isn’t up to this, but at least the Government have made the offer. If local government has said, "No, this is all too difficult for us" well then, I think national Governments legitimately should be able to say, "Well, then we’ll have to decide".

Chair: Margaret, did you have a contribution?

Baroness Eaton: Well, we could have this sort of discussion, couldn’t we? But I think one of the elements, as to why and how local authorities feel prepared to do this, is the other bit of the law where there are illegal encampments and how local communities are unable to deal with that, because if they can’t then it makes an acceptance of doing and making provision more of a problem. In my own area, we’ve had them a long time in official sites, but when the law around illegal encampment is so difficult and complex and doesn’t solve anything, it doesn’t help local authorities to want to provide what they should provide.

Chair: I’m definitely not going to go there.

Q151 Andrew Griffiths: Merrick, it was interesting listening to your slightly uncomfortable response about Traveller sites. It does sound a little bit as though you want local government to be able to do everything, apart from the difficult and uncomfortable ones, in which case you’d quite like to be able to blame central Government. But going back to some of the things that have already gone through. First of all, I can absolutely confirm that local councillors and local government have been making these claims-these calls for greater power. I’ve waded through many a document produced by various local government bodies, Mr Chairman, and if ever you suffer from amnesia I’ll let you have a couple of copies because they are great at helping you nod off.

My question goes back to this issue of do we need to codify. Have we missed the boat a bit? Is this something we should have been talking about six months ago or 12 months ago, and have the Government’s decisions for localism, to hand power down, actually shifted where the emphasis needs to be? My worry is that it’s a bit like investing in a chastity belt when you’re seven months’ pregnant. It’s too late because the game has moved on a bit. If you look at the Localism Bill, if you look at the devolution of power we’ve seen just this week with the White Paper on Health giving local authorities much more power over commissioning and health well-being; if you look at some of the things that have happened in removing the ring fencing; in the general power of competence, which I think is a fundamental shift; if you look at the things that local government are already doing that are innovative-you know, Merrick, the super council, which I think is really innovative-shared services, shared chief executives and the pooling of sovereignty by local government already, doesn’t that show that local government has picked up the ball and started to run with it? Actually, you don’t need somebody to codify it, you just need the ability to be able to get on and do it.

Lord Bichard: This is a relationship with at least two parties. For a start, I don’t believe that we have yet seen some of the complexities of decentralisation unpicked, so by no means do I think we’ve come to the end of this game. But the things that you’ve talked about could easily be unpicked. When the first thing goes wrong in a decentralised system and the Government, Secretary of State or a Minister are under pressure, I’m sure you will agree that we may then see more procedural guidance, or new milestones or indicators. We will find a new way of expressing them. I think we do need to get to the point where there is clarity about what this relationship should look like. Then I think we need to articulate it, partly to protect it so that it doesn’t then get unpicked.

Jules Pipe: I hope we’ve been clear that local government welcomes the shift that seems to be happening, and if it’s carried through and the deeds are as good as the words, we welcome that. But I endorse what Michael has just said and it goes back to what I said at the beginning about LSP: it’s good will and can be rolled back at will without necessarily the kind of scrutiny and challenges in that rolling-back process that we’ve argued for. I think that’s when we get to where we want. Because, again, as I said at the beginning, change first and then codification. We’re in a process of change, so I think the codification shouldn’t be six months ago, it should come later when we’re all in a place that we’re happy with.

Sir Merrick Cockell: I think, Andrew, the scenario you paint is fair but it does reflect a part of where national Government and local government connect, or rather than local government-local public services and national Government. Of course, I think codifying it would apply across all government, wouldn’t it? It wouldn’t just be particular departments or particular areas. It would set it for all. I can’t remember the number of Secretaries of State-

Baroness Eaton: Twelve, I think.

Sir Merrick Cockell: Twelve Secretaries of State have powers that knock up against local public services, in most of which my colleagues-I don’t mean around this table but elsewhere-think there’s only one, and that’s CLG. Then they think, "Okay, a bit of Education and Health, oh, Home Office". But it’s 12 and we’re seeing things happening at different speeds, with different drive and different beliefs from different Secretaries of State about the role of local public services in that. I think I agree that we haven’t missed the boat. I think we’re on a journey and the codification may be the clearest declaration by Government that the work they’ve started has an end point that really matters, and that from local government’s point of view, our performance, our delivery, and where we are starting now with localism and other changes-I sound like a supplicant, a victim as well-are acknowledged. We’ve shown that we can rise to that challenge, and now Government have said, "Well, we’re codifying this so that we can never go back to and never replicate that thing of you saying when a new Government comes in, says it’s going to localise, spends two years, and four years later it’s fallen apart again".

Baroness Eaton: I don’t think I have a lot to add. I think Jules is quite right, we need to see what the Bill looks like, see what we have and then see what form of codification, if any, we require at that stage.

Q152 Andrew Griffiths: Ultimately, won’t it be the success or failure of the devolved powers? Won’t it be that local government proves that it can be more effective and do things better than central Government, that actually ensures that this devolution of power is maintained? Isn’t it about the outcome and the successes, rather than about it having been written down on a piece of paper? Because I’m sure you’ll agree with me that the only thing that local government got out of the Concordat was a nice gold pen that they bought for the signing. That was the only real legacy that was left.

Lord Bichard: But I think you overlook an important point. I often find when people talk about devolution, decentralisation, they see it as setting local government free, and that local government can now do these things. One of the reasons why local government-and not just local government, but other local agencies-have found it so difficult is because of the way in which the civil service and Government have behaved. It is not just a question of saying, "Now go away and do what you want". It is stopping, preventing that. I’m afraid that this is about Whitehall as well as Westminster. We haven’t talked much about that this morning, but it is, because Whitehall doesn’t like giving up power either. So, ring fencing, targets, all of those things were introduced as a way of controlling from the centre, and the danger is that people will very quickly get used to a new landscape and find new ways of introducing control.

Jules Pipe: Again, I think controlling inputs and outputs is separate from recognising the legitimate role of Government to require outcomes for a country, right down to localities collectively then being the country. I don’t think those are at odds with one another.

Sir Merrick Cockell: Somebody said to me that, in fact, this whole argument about subservience, power at the centre, goes back to Anglo-Saxons and Normans and it sounds right, doesn’t it? The Anglo-Saxons with hundreds, and all the counties and versions of that, and then the Normans came in and put the centre in and took control. I don’t know-you would probably blow a hole through that argument. I rather like the sound of it. I think the fact is, as has been said, there are forces out there that don’t believe that local is where power should be, and I’m not talking only of some politicians-well, the last Government clearly felt that actually it was far more possible to control the state, to be able to make things happen quickly, by centralising relatively. So, things will shift again and if we could have it codified, well, that makes that more difficult to change again. So, I think that would be worth it.

Baroness Eaton: I was just thinking of what Michael said about Whitehall. The example is: local authorities being required to provide endless data that is of no use and nobody uses, those kinds of things, which create cost and are constant within local authorities. Instead of letting them get on with it, they have to comply with all sorts of things, even if they’re told they have freedom, and information that’s no longer needed. All those kinds of things get in the way.

Tristram Hunt: If I might just on the Anglo-Saxon point-

Chair: Go on, Tristram, very quickly, then Andrew.

Tristram Hunt: I think Merrick was absolutely right, but it was always the selfbelief of the Victorians that they were the Anglo-Saxons and that the unique nature of the English people was their belief in local self-government, in contrast to Norman centralism. Then the irony of the second half of the 20th century is we’ve become the Norman centralist state, whereas France has devolved to the regions, the cities and the towns, and all the rest of it. So it has flipped totally on its head.

Chair: Thank you for that, Tristram.

Q153 Andrew Griffiths: Just very briefly because time is against us, but general power of competence, if I can just quickly return to that. Do you think that there is a genuine understanding in local government about what a general power of competence will mean and what it will allow you to do? If we devolve that power down and give you that general power of competence to do what you feel is right for your constituents, your electors, how do we have accountability over that when you can do anything you want? How do we have genuine accountability both to Government and to your electors? I know, Merrick, you said, "They can kick us out every four years", or whatever, but in terms of a transparency, how do we make that happen?

Jules Pipe: I think a whole series of mechanisms is in place. Obviously, through the ballot box and elections, it goes without saying, but the transparency of information that obviously is being brought in at the moment. You have the media reporting publicly on decisions. You have people exercising choice more and more through the various services that local authorities provide. Complaint systems for seeking redress. Obviously there’s a question mark over regulation, inspection and audit at the moment about where that’s going, but I can’t believe that it’s going to disappear completely, and even if it does disappear completely I’m sure it will be back. Internal management processes, and also key, I think, are the lay scrutiny through the Scrutiny Committees that local authorities have in place, which are becoming ever more developed as time goes on. So, I think there is a whole series of mechanisms there.

Q154 Chair: Is there a sort of dependency syndrome as well? If someone will always come and help you out, you can always cry and mummy will come and help you, there will always be someone to offer guidance and someone to tell you, "This is the way to do it", whereas if you are more freestanding and have to have responsibilities, you will grow mechanisms that will get you in touch with electors, that will rebuild political parties, that will make creative potential more evident in local government, interactive between different local councils. Won’t those things happen as a consequence of freedom rather than expecting you to demonstrate that right now when you do not have the freedom?

Lord Bichard: There is a danger that we think that all the guidance that comes out of Government is a good thing, and it isn’t. He shall remain nameless, but I was talking to a director of children’s services recently who said, "My goodness, I think we’ve done a fantastic job at protecting children’s departments". We haven’t done such a good job at protecting children. Because we have so much advice and guidance and a lot of it is procedure and process, going to children’s departments and saying, "I feel confident that I can defend my department in most circumstances if we follow the guidance". But the guidance is often about process and procedure and not about outcomes.

So I think we need to remember that all this guidance is not benign, it can sometimes be quite negative, quite damaging, because it is pointing people in the wrong direction. In the past, if you had given local authorities clear guidance in an area as sensitive as that, it is very difficult for them not to follow it to the letter. That’s why in the jargon we’ve moved to a world where we are managing for compliance rather than managing for outcomes and value. That is one of the biggest shifts of all that we need to see happen. We need to stop people feeling that the only way they succeed is by ticking the box and managing for compliance.

Sir Merrick Cockell: I certainly don’t understand what general competence really is. I’ve asked lawyers to tell me because, as they’re the ones that constrain what we can do, they need to tell us what it is going to mean. With the Localism Bill it will become a bit clearer. Most of those powers we thought we had were powers of wellbeing, of course. Then, when Brent tried to lead a London local authority setting up a mutual, a private sector company challenged that, that perfectly sensible, reasonable, cost-saving thing felt apart. So, as I said, it will require lawyers to explain what that means that we can and cannot do.

On accountability, certainly downwards, I don’t think we need Government to tell us how we should be building accountability structures. I think, though, we are all going to have to work out ways-what I was saying earlier-of passing on those appropriate decisions, involving people more, thinking about the role of the councillor. The Labour Government tried to change this with the 2000 measure-it didn’t work. This idea that separating scrutiny and the executive role would allow the mass of councillors who weren’t in the executive to be in their areas sadly just didn’t work. I think here we have to find a way and I think it may well happen through some of the planning elements of the Localism Bill that ward councillors, district councillors, will become the leaders for their communities in a real sense. I’d like to see a structural thing of council leader, city mayor-whatever it may be-London mayor, ward councillor, as being something you aspire to be that actually matters. You’re not just the backbench fodder in the political group or on the council. In your community, you are the key person who is the broker, the enabler and sometimes the decision taker; sometimes because you can’t get agreement. That will require a real shift. I think that will begin to build accountability, but I think we should all be able to do it in our own ways. Some of us will trip up and make mistakes and others will follow those that are getting it right.

Q155 Mrs Laing: Very quickly, just to get this on the record and to check with Margaret if this is still the opinion of the Local Government Association, because I have here the written evidence given to the Communities and Local Government Committee in 2009. I think this sums up what you said this morning but I just want to check. The LGA stated, "This country continues to have an extremely centralised state. The effects of this centralisation are pernicious. It is administratively inefficient, creating the need for elaborate and costly bureaucracy. It establishes perverse incentives in which delivery organisations have excessive regard to targets and rewards that have no anchor in the demands of the communities they serve".

Baroness Eaton: Absolutely.

Mrs Laing: In talking about the general power of competence, at that point the Local Government Association said, "Giving councils greater powers achieves little if they have little to gain from using them or if arms of central government continue to have powers that override or conflict with them".

Baroness Eaton: Yes.

Chair: Do you still agree with that, Baroness Eaton?

Baroness Eaton: I still agree with it.

Q156 Chair: Thank you very much. Just to conclude, first, I was being deliberately provocative at the beginning, as you can imagine, but don’t take it personally. The one group I prod and poke more than your good selves is my own parliamentary colleagues, in terms of them seeking their own freedom and independence rather than labouring under executive sovereignty, which we have in this country. I have to say I seem to have had more success with you than I do with them.

Secondly-and probably more importantly-is there is a real point about the coherence of your approach and your argument and the clarity of it. And you may be bored of making it, I know, but I do ask you to have one more try because we are a new Committee, we are setting out on a new course, and we want to hear these arguments with some clarity again, particularly around whether you think the Concordat and the European document, and other things, might be the basis for moving forward on some form of codification. Whether that’s a codification that operates at a high water mark of local government independence, rather than one that we try to devise in a number of years’ time when we feel local government is being hit hard by recentralisation, I think now is an opportune moment. I do believe the Government sincerely means and is bringing forward lots of interesting proposals about freeing local government. I think it is a very good time and that time will pass.

So I ask you, if I may-thanking you very much for the evidence you’ve given this morning, which has been fascinating and I think the questioning as well this morning has been particularly good and drawn out the points-to go away and help the Committee by again perhaps considering a brief response to the Committee on what you heard this morning about codification, what might be codified, how best that might be done, and by all means collaborate and put in something that you feel would satisfy all of you. You do have a degree of expertise in your respective organisations as well as among yourselves individually, and we would be most grateful for your help in that regard. Do we then say that is definitely going to be in the report? No, we don’t, but we will certainly treat it with the seriousness I hope you feel you’ve been treated this morning in giving evidence. Thank you all very much for coming along. Margaret, thank you in particular for filling in at very short notice. We do appreciate it.

Baroness Eaton: Thank you, Chairman.

Chair: Thank you very much indeed.