Prospects for codifying the relationship between central and local government - Political and Constitutional Reform Contents

3  The content of the code

46. We believe that central government should use our report and the draft code to initiate a wider debate about the future of local government. We do not suggest that there is unanimous agreement on the precise wording of the code, but we have found much support for the broad principles that underpin the code. We present the code for further debate, not as the last word.

47. The draft code, appended to this report, contains 10 articles and a preamble, which represent the broad principles that could govern the relationship between central and local government. The key principles are that local government should be independent of central government, able to exercise a range of tax-raising powers suitable to the needs of the local community, and that government, of all levels, should be appropriately consultative and accountable to its people. The draft code would apply to all types of local council in England, including county, district, borough, city, metropolitan, town and parish councils. The draft code is intended to replace the estimated 1,293 duties imposed on local government today.[39] All the provisions within the draft code are subject to the provisions of the Human Rights Act. Nothing in the draft code would limit the existing local government powers of wellbeing, or the general power of competence.

48. The preamble sets out a broad, democratic framework within which the articles sit and sets the context for the code.

49. Article One sets out the constitutional arrangements to protect local government's rights within the code from being amended or abolished.

50. Article Two makes it clear that local government is primarily accountable to local citizens. It asserts that councils are independent, and able to determine their own affairs.

51. Article Three establishes a consultative working relationship between central and local government.

52. Article Four ensures that central and local government can negotiate on an equal footing to create inspection regimes and service standards.

53. Article Five establishes the territorial autonomy of local government. Council boundaries cannot be re-organised without the council's consent.

54. Article Six makes it plain that local councils and citizens have the ability to choose their own political decision-making systems.

55. Article Seven provides for the financial independence of local government, including the ability to raise loans and operate a balanced budget, and maintains the existing provision for equalisation. It would allow councils to raise other revenues, for example, a tourist tax, with local consent, if they wanted to do so. Such taxes are in use in parts of Italy, Spain and Germany.

56. Article Eight sets out that councils have the right to co-operate with each other and with other bodies in ways that would benefit their areas.

57. Article Nine provides for local decision-making processes to be overseen by the Electoral Commission. This would be require the remit of the Electoral Commission to be extended.

58. Article Ten makes it clear that local government has the right to take legal action in circumstances in which its autonomy is threatened.


59. The consultation highlighted areas where the code could be further developed and these suggestions were acted upon when the code was redrafted. For example, we received multiple comments on the code's lack of reference to town and parish councils, proposed use of referendums, and the process of fiscal equalisation between councils. These, and other concerns, have been addressed in the final version of the code.

Town and parish councils

60. Professor George Jones and Professor John Stewart; Councillor Roderick Bluh, Leader of Swindon Council; and the National Association of Local Councils, raised concerns that the draft code's lack of reference to town and parish or two-tier councils meant that we did not consider them to be covered. This is not the case. The draft code is intended to cover every size and shape of council. The latest version of the draft code does not include a list of types of council, reflecting the fact that it is intended to cover all types of council in England. Independence for local councils is a beginning, not an end. It would enable them to engage with the process of local devolution, which they and their local electorates would take forward in their own way.

Use of referendums

61. Another question raised was the use of referendums. Some of our respondents to the consultation version of the code expressed unfounded fears that referendums would be compulsory for a number of issues, rather than being one of many devices which could be used locally. Many councils wrote to us stating that requiring a referendum every time the council wanted to change its political decision-making systems would be prohibitively costly, and could contribute to voter fatigue. The Chief Executive of Ashfield District Council, P.G. Marshall stated:

Recent history on the sounding of citizens on their choice of political decision-making system shows that there is little interest in many communities. It has to be recognised that the cost of testing the opportunities of a particular governance approach with communities is not inexpensive.[40]

Councillor Geoffrey Driver, Leader of Lancashire County Council, reiterated this, stating:

The code may over-estimate the public's appetite for considering alternative approaches to internal political decision-making systems; voter turnout in last May's local mayoral referenda indicated low levels of public demand for this type of policy, especially during a time of mounting fiscal pressures.[41]

Derbyshire County Council felt that Article 6.1 was simply too prescriptive and could constrain councils:

the council's experience from carrying out wide and regular consultation with residents shows that citizens are far more concerned with the quality of services delivered, rather than models of political governance. Furthermore, the code should allow for the council's administration at the time to determine how it is governed, and to consult with citizens in its preferred forms should it feel necessary.[42]

62. It is for these reasons that the references to referendums have largely been removed from the latest version of the draft code. Upon reflection, that part of the code was not compatible with the principle of letting local government decide its own affairs. Local councils should decide how to authorise significant local changes, such as those to council governance structures, by methods including voting on propositions and holding referendums to gain the consent of local electors. The public, as always, can use local elections to have their say on how well they think their council is making decisions.

63. We have listened to the points that were raised during the consultation—not least those from local government—and attempted to address them. However, we repeat, the draft code is not designed to be a finished product and we would welcome similar engagement with central government to define it further. It is meant to illustrate what could be the first step in codifying the relationship between central and local government to give local councils the ability better to shape their services to the needs of local people. We believe that with further work such a code would be able to command widespread consensus and establish a settled constitutional role for local government.

39   HC Deb, 30 June 2011, col 58WS  Back

40   Ev w9 Back

41   Ev w80 Back

42   Ev w102 Back

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Prepared 29 January 2013