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

6  A degree of permanence


110. Some of our witnesses stressed that entrenching the code was the only way to ensure that a rebalancing of the relationship between central and local government gave local government significant and lasting powers to control its affairs. Without entrenchment the Whitehall default position of micromanagement would reassert itself. Councillor Peter Webb, Leader of North Dorset District Council, stated: "I believe that codification for local government is now urgent and essential if England and the UK are to maintain their historic character, governance standards and integrity over the coming years".[89] Sheffield for Democracy agreed, stating "we also wish to urge early action to implement the code; we see the need to act as urgent"[90], while the Society for Local Authority Chief Executives (SOLACE) also agreed with "entrenching the legal position of local authorities in a way that would make it harder for future Parliaments to alter".[91]

111. Sarah Ayres, Senior Lecturer in Policy Studies at the University of Bristol, noted: "localism means different things to individual government departments. Indeed there is no standard interpretation of localism in Whitehall".[92] Her comments highlight why it is necessary that the codification of the relationship between central and local government is enforced by statute. Whitehall would be compelled to follow statutory obligations, whereas the aims of the Government's localism agenda do not necessarily extend far beyond the Department for Communities and Local Government. We discuss later how we could draft a Bill which could be the basis for further discussion on this point.


112. A draft code, enforced by statute, would mean that the constitutional role and the rights of local government would be clearly defined for all to see—something that local government in most other European countries takes for granted. However, we agree with a number of our submissions that if local government's role is to be properly protected it needs to have a double-lock to ensure it cannot be readily repealed. Our proposal for discussion is that the independence of local government could be protected further by amending Section 2(1)of the Parliament Act 1911 to ensure that the consent of the Lords was always required for any Bills that altered the 'powers, functions or structure of local government'. The effect of our proposed amendment would be to ensure that the Second Chamber had to authorise any change to the fundamental freedom of local government. We believe again that the very existence of this power would be sufficient for it never to have to be used. If the consent of the Lords were always required for any Bills that altered the 'powers, functions or structure of local government', future governments would find it difficult to pass legislation that would constrain local government autonomy. In effect, this would allow the Second Chamber to have a veto on local government matters it disagreed with. However, it is important to note that amending the Parliament Act to give local government a double-lock would be unprecedented and could encourage others to try to amend the Parliament Act to give constitutional protection to other matters.

113. The LGA told us that they: "support the Select Committee's suggestion that any new provisions have special protection through the Parliament Acts, making them a quasi-constitutional law."[93]

114. Another way to ensure that a rebalancing of the relationship did not result in a gradual creep of power back to the centre might be to codify a framework of relations between central and local government in statute in a similar way to the Scotland Act 1998. The Constitution Society was in favour of an approach that would see the relationship between central and local government codified within a Scotland-style Act.[94] However, the vehicle may be more suited to the Scottish Parliament than to English local government.

115. Under the Scotland Act 1998, the Scottish Parliament can make primary and secondary legislation in those areas not reserved to Westminster (which are specified in schedule 5 of the Act) or protected from modification (specified in schedule 4). Devolved subjects are those which do not fall under the reserved categories, or are not otherwise outside the legislative competence of the Scottish Parliament. They include: health, education and training, local government and the police and fire services, among others. The Scotland Act 2012 devolved stamp duty, land tax and landfill tax and limited income tax raising powers. As section 28(7) of the Scotland Act states that nothing in the Act prevents the UK Government from legislating on matters included in the Act, the Act is also backed up by the Sewel Convention. The Sewel Convention states that the UK Parliament will legislate on a matter which is devolved to the Scottish Parliament only if the Scottish Parliament gives its explicit consent.


116. A double-lock on interference by central government has also been suggested in the form of a Joint Parliamentary Committee on Local Government. This proposal has been contained within the draft code since its first draft. Article 1.1 of the draft code states:

The fundamental rights, freedoms and duties of councils herein are defined protected and entrenched. They may not be compromised or changed other than by the explicit consent of Parliament as authorised firstly by an elected joint committee of both Houses, and then by the approval of both Houses of Parliament as prescribed in the amendment to the 1911 Parliament Act.

Professor George Jones and Professor John Stewart suggested that it may be advisable to create a Joint Parliamentary Committee to advise on whether any proposed legislation would infringe on the autonomy of local government. The Joint Committee could issue a statement to certify that new legislation did not impose new burdens on local government.

117. The Constitution Society commented: "If the principles of the code were safeguarded by amendment to the Parliament Act, the Constitution Society is unclear what additional protection would be achieved by the proposed requirement for prior authorisation by an elected joint committee of both Houses".[95] However, at least initially, a Joint Committee to review the impact of new legislation on local government would be one way to flag up early resurgent centralising tendencies. It could also help to ensure that all government departments were following the code.

118. We would encourage the Government to examine the possibilities of a stronger constitutional status for local government, through an entrenched statutory code, or a similar proposal. For local government to be viewed as an equal, not a dependant, and a respected partner, not a subordinate, would provide a strong indication that the constitutional relationship of the centre to local government was maturing. Central government has it within its power to release the energy, creativity, and potential of the other half of government.

89   Ev w14 Back

90   Ev w38 Back

91   Ev w30 Back

92   Ev w88 Back

93   Ev w104  Back

94   Ev w27 Back

95   Ev w27 Back

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© Parliamentary copyright 2013
Prepared 29 January 2013