Written evidence submitted by the Local
Government Association (L&CG 04)
The LGA is a voluntary membership body and our 422
member authorities cover every part of England and Wales. Together
they represent over 50 million people and spend around £113
billion a year on local services. They include county councils,
metropolitan district councils, English unitary authorities, London
boroughs and shire district councils, along with fire authorities,
police authorities, national park authorities and integrated transport
authorities.
In our submission we answer the questions put forward
in the call for evidence that we believe are applicable to our
overall response.
1. Should the relationship between central
and local government be codified? Should codification of the relationship
between central and local government be considered in the context
of a wider constitutional codification?
Written statements of the relationship between central
and local government are already in existence; namely the UK's
ratification of the European Charter of Local Self Government
in 1998 and the Central-Local Concordat (2007). In light of this
further work to codify the relationship is unnecessary. Previous
attempts to codify the relationship between central and local
government have not resulted in a whole-scale change in the powers
available to local government and central local relations and
have had limited practical impact on the powers available to councils
and relationship between central and local government.
More important is that action to put the aspirations
of both documents into practice in a way not previously achieved
to date. Enactment of a general power of competence for local
government would enable a redefinition of the relationship between
central and local government through bottom up action. We talk
more about the importance of such a power in our response to question
8.
Codification of the relationship between central
and local government would also sit uncomfortably if it were not
accompanied in the context of a wider constitutional codification.
In light of our answer to question 1, questions 2-6
are not applicable to our response.
2. If codification is appropriate, what degree
of independence from central government and what powers should
local government be given?
3. How, if at all, should the status of local
government be entrenched, or protected from change by central
government?
4. What consequences should codification or
other change in the relationship between central and local government
have on the accountability of local authorities to elected local
politicians, local people and central government?
5. Does the devolution settlement provide
a relevant model for a possible codification of the status of
local government?
6. Are there examples of constitutional settlements
between central and local government in other countries that are
relevant to an appropriate model for the UK?
7. What is the value of existing attempts
to codify the relationship between central and local government,
through: Central-Local Concordat or the European Charter of Local
Self-Government? Should this Charter be placed on a statutory
footing?
The Chairman of the LGA and the Secretary of State
signed the Central-Local Concordat in 2007; both parties intended
the Concordat to signal a significant change in the central/local
relationship.
The Concordat was signed against the backdrop of
the Government having unconditionally ratified the Council of
Europe's Charter of Local Self-Government in 1998. That document
provides a benchmark for central-local relations where it is widely
accepted, that the UK government had not, at the time the Concordat
was negotiated, fully implemented. Indeed, a 2006 Council of Europe
review of central control over local government placed the UK
in the 'control/supervision increasing' category, alongside Azerbaijan.
The Concordat established a useful set of operating
principles. In a number of cases the policy landscape has changed
significantly so as to render parts of the agreement no longer
relevant - for example the role of LAAs in aligning central and
local government actions. There have also been a number of suggestions
that the Concordat was breached. In particular occasions have
been cited where the government has apparently failed to consult
councils or the LGA about proposed changes in the way the Concordat
envisaged.
The role of the Concordat in setting out operating
principles must now be accompanied by action to turn these principles
into reality. As referred to in our answer to question one we
feel further codification is unnecessary but we suggest four key
actions which would take forward the relationship between central
and local government:
1. Providing local authorities with increased
flexibility through the Local Government Resource Review. The
review is an opportunity to provide local government with
the necessary powers to raise revenue through more flexibilities
to levy fees and charges and to determine the rate of local taxes.
In the context of the recent significant front loaded cuts to
local government, providing local authorities with these flexibilities
and powers is more crucial than ever.
2. Providing local government with the powers
and confidence to act ambitiously through a general power of competence.
Further information on the importance of the power is provided
in our answer to question 8.
3. Consolidating local government legislation
to provide clarity and confidence to local authorities. Whether
centralising, devolving or simply regulating parliament produces
hundreds of pieces of legislation each year that need to be implemented
by local government. Recent research indicates that in the last
ten years parliament passed 4,000 pieces of legislation, statutory
instruments were passed relating to local government[2].
The volume of legislation impacts on councils' ability to respond
to the needs of local people by creating uncertainty about their
powers. Providing clarity and confidence is key; this is best
achieved through a consolidation of local government legislation.
4. Involvement of local government in pre
scrutiny of legislative proposals with an implication for local
government. Of course some of this legislation and policy-making
is justified and helpful to local government. Some however is
not well constructed and leads to unintended consequences which
necessitates yet more action on behalf of parliament to resolve.
Local councillors can add value to the legislative process by
bringing to bear their experience on the ground. The LGA's publication
One Country Two Systems[3]
proposes that parliament should set up
a 'committee' charged with pre-scrutinising legislative proposals
with local government implications and should involve local government
leadership in this. Such a committee already exists in the House
of Lords to scrutinise 'whether the provisions of any bill inappropriately
delegate legislative power, or whether they subject the exercise
of legislation to an inappropriate degree of parliamentary scrutiny'.
An arguably similar arrangement is set up on an ad-hoc basis when
the government publishes draft bills. Sometimes they are scrutinised
by Joint Committees of both Houses, and sometimes by existing
departmental Select Committees.
8. How would the 'General Power of Competence'
for local authorities proposed by the current Government affect
the constitutional relationship between central and local government.
' Through a new general power of competence councils
will be able to do whatever they like as long as it's legal -
creating solutions to local problems without getting permission
from the centre' David Cameron, The Guardian, 25 May 2009
A General Power of Competence for local government
has long been advocated by the LGA. There is widespread agreement
that the current legal arrangements provide an unsatisfactory
combination of detailed legal prescription about specific services,
and uncertainly about a general power. A power of first resort
would support the role of councils as government and not simply
administration, taking distinctive decisions to provide for the
needs of the place the council represents, and not simply administering
the decisions of central government. In summary the power has
the potential to redefine the relationship between local government
and central government through practical action.
The Well Being power enacted through the Local Government
Act 2000 encouraged some councils to introduce new activities.
There has however been uncertainty about its exact scope. This
concern was much amplified by 2009 Court of Appeal judgement in
the Brent LBC v Risk Management Partners. It upheld the position
of the High Court, that the London Borough of Brent did not have
the power to participate in the Local Authorities Mutual Limited
(LAML), a jointly owned company, set up to provide insurance and
risk management services to London borough councils. The judgement
has created wide concern within local government about the scope
of the well being power, Section 2 Local Government Act 2000,
and Section 111 Local Government Act 1972.
A clear power of first resort and a framework to
simplify and remove restrictions from existing statute, where
these create a barrier is in this context critical to give councils
the confidence to act ambitiously without fear of legal redress.
We need, as far as possible, to create a power which will not
be interpreted in the courts in restrictive way.
The LGA wants to work with government to enact through
the Localism Bill a general power of competence that delivers
on the promise of a power of first resort. The LGA has published
a draft bill which we intend as a helpful contribution to this
debate[4].
2 December 2010
2 Delivering more for less II, Transparency in Action,
Local Government Association, 2010 Back
3
One Country, Two Systems?, Local Government Association, 2008 Back
4
Draft Local Government (Power of General Competence) Bill, Local
Government Association, 2010 Back
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