Prospects for codifying the relationship between central and local government

Written evidence submitted by the Association of Council Secretaries and Solicitors (ACSeS) (L&CG 14)

This response is submitted on behalf of the Association of Council Secretaries and Solicitors (ACSeS). The Association represents the heads of legal and democratic services of local authorities in England and Wales. Most ACSeS members are lawyers and many are designated by their local authorities as the statutory Monitoring Officer.

We welcome the review of the relationship between central and local government and the Committee’s inquiry around codifying the relationship. Local government has become increasingly constrained by central government through legal control, financial control and in recent years by strategic control and regulatory control and statutory guidance. It feels as if central government manages the what, the when, the how and the why of local government activity, leaving little scope for local initiative. Central government has wanted to deliver state services and its means have been those of both macro and micro management. After a long history of independent pioneering of local services, Local government is now suffocating from its more recent role as an agency of the state.

We wish to make the following points in response to the questions in the Issues and Questions Paper;

Question 1 

   The legal relationship between central and local government is determined by thousands of individual pieces of legislation, some of which provide for local discretion within a prescribe framework, some of which prescribe duties with varying degrees of discretion, some of which provide discretion but subject to specified requirements, some of which impose legal obligations applicable to other parties, with a host of other variables in between. Some more traditional functions remain a matter for local discretion, other local functions have become subject to a national statutory framework, and more recent functions are imposed as an agency of the state service. Central government financial provision has become detached from specific functions.

It is difficult to see how a codified relationship between central government and local government can be a legally binding arrangement when the legal relationship is already embodied in a mass of legislation.

If there is to be a wider constitutional codification, a statement on the legal position and relationship of local government with reference to each function would seem to be essential. Whilst central government continues to be paymaster for a substantial proportion of local government expenditure, further clarity is essential on the degree of control central government requires in relation to the services central funding supports.

This will take time as much of it is about untangling history.

In the absence of the finite detail, the attempts at securing a political understanding hitherto, between central and local government, have been no more than helpful wish lists.

There continues to be merit in developing a more constructive relationship as a stepping stone for legislation then to follow. A political relationship could be embodied in some sort of statutorily endorsed protocol listing a number of agreed principles. These should include;

1. Consultation – no central government decision affecting local government without involvement of local government

2. Free flow of information

3. A general presumption that Parliament can make decisions in the national interest that impact on local government

4. A general presumption that local authorities have the freedom to do what they want to do in the interests of their communities (subject as necessarily in the national interest to national requirements).

5. Reflection of the principles in all legislation applicable to local government and clarity and restatement of local government legislation..

Question 2

Under current law, local government is clearly dependant on Parliament through legislation for its existence. The independence being sought politically is the scope and clarity to make decisions at local level in all areas of activity other than those limited activities where there is a clearly determined national strategy impacting on those activities, or it is in the national interest that local decisions are subject to national criteria (e.g. road traffic regulations).

A power of general competence (rather than a general power of competence – there is a difference; the latter is limited) would provide a simpler legal basis for doing all the things that a LA might reasonably want to do in a rapidly changing world. Such a power would only be meaningful if it was coupled with a mass repeal of legislation which has provided LAs with the sort of powers they have needed to this point.

Question 3

Unless central government can demonstrate that a decision (i.e. legislation) is in the national interest, (meeting agreed criteria) local authorities should be entitled to presume that their structure and status may not be changed.

The logical process for challenging or defending such presumption would be the Courts. The arrangements for Welsh and Scottish devolvement appear to be working on a legislative platform, and there would therefore seem to be scope for English local government to do likewise.

Question 4

It will take time for the electorate to grasp the benefits of a restatement of the central – local relationship. Accountability should be clearer but it may be presumptuous of politicians to expect the electorate to respond enthusiastically. The local government structure remains complicated and the functions many. Clarity in the relationship will help local councillors to assume responsibility and leadership where such is enabled.

Question 5

Welsh and Scottish arrangements have the benefit of starting from scratch and, with both the Scottish Government and Welsh Assembly and their local authorities trying to make it all work effectively, there is a greater scope for optimism and less regard to any poor relationship history. English local authorities and central government need to consider both the principles of an effective working relationship at a political level and the detailed legal relationship at the practical level.

Question 8

Local authorities have demonstrated over the last 150 years a rich approach to innovation, generally involving seeking local act powers, or consolidation of powers to support a wide range of community infrastructure. The ultra vires rule has however been fundamental to this approach and general enabling powers have been given limited interpretation.

A power of general competence would help to substantially diminish the effect of the rule and allow for a wider approach to performance.

A general power of competence appears to be of more limited scope and will inevitably lead to some continued hesitancy.

We look forward to seeing the recommendations of the Committee.

6 December 2010